CORAM

HON. JUSTICE J. D. PETERS

PARTIES

Mallam Abdulraheem Baba Sulaiman

APPELLANTS 

1.         Kwara State Polytechnic, Ilorin

2.         Chairman Governing Council, Kwara State Polytechnic, Ilorin

3.         Rector, Kwara State Polytechnic, Ilorin

4.         Registrar, Kwara State Polytechnic

RESPONDENTS 

AREA(S) OF LAW

MALLAM ABDULRAHEEM BABA SULAIMAN v. KWARA STATE POLYTECHNIC, ILORIN, CHAIRMAN GOVERNING COUNCIL KWARA STATE POLYTECHNIC ILORIN, RECTOR KWARA STATE POLYTECHNIC ILORIN & REGISTRAR KWARA STATE POLYTECHNIC

SUMMARY OF FACTS

The Claimant, Mallam Abdulraheem Baba Sulaiman, was employed by the 1st Defendant, Kwara State Polytechnic, Ilorin, in 2008. He worked in the Audit Unit of the institution and, at some point around 2015/2016, was posted out to the Institute of Technology. On 5 November 2018, he was queried by the Chief Internal Auditor. He received a formal query and was required to respond to allegations of clearing and signing of edited students’ payment slips.

Pursuant to Clause 11.5.3 of the Regulations Governing Conditions of Service for Both Senior and Junior Staff of Kwara State Polytechnic, Ilorin (Revised 2010) — Exhibit BS23 — the following disciplinary steps were taken: the Claimant was served with a communication (Exhibit BS7) from the Staff Disciplinary Committee dated 26 July 2021, requesting his submission on the allegation of clearing and signing of edited students’ certificate slips; the Claimant responded via Exhibit BS8 dated 27 February 2021; a Staff Disciplinary Committee investigated the matter and produced a report (Exhibit BS24); the Claimant was subsequently invited to appear before the Council Disciplinary Committee via Exhibit BS9; and the Council Disciplinary Committee’s report was contained in Exhibit KP1. By Exhibit BS10 dated 23 December 2021, the Claimant was dismissed from service.

The Claimant exercised his right of appeal to the Governing Council, and on compassionate grounds, his dismissal was commuted to compulsory retirement by letter (Exhibit BS13) dated 28 March 2022. The Claimant subsequently filed this suit on 12 October 2023, contending that his disengagement was wrongful, unlawful and illegal, that it was actuated by malice and improper motive — being a reaction to his having discovered irregularities committed by DW2 — and that the criminal nature of the allegations against him required prior determination by a court of competent jurisdiction before disciplinary action could be taken.

The Defendants raised a preliminary defence of limitation, contending that the action was governed by the three-month limitation period under Section 2(a) of the Public Officers’ Protection Law of Kwara State, which had elapsed by the time the suit was filed. The Claimant countered that the applicable limitation period was the six-year period under Section 18 of the Limitation Law of Kwara State.

At trial, the Claimant (CW1) tendered twenty-one documents admitted as Exhibits BS1 to BS21. The Defendants called two witnesses: DW1 (Ajayi Joseph Omolayo) who tendered one document (Exhibit KP1), and DW2 (Jimoh Funsho Suleiman) who tendered three documents (Exhibits KP2 to KP4).

HELD

1. On limitation of action: The Court held that the applicable limitation statute was Section 18 of the Limitation Law of Kwara State, which prescribes a six-year period from the date of accrual of the cause of action. As the Claimant’s cause of action arose on 28 March 2022 and the suit was filed on 12 October 2023, the action was not statute barred. This issue was resolved in favour of the Claimant.

2. On striking out of defence processes: The Court held that non-compliance with the 2022 Practice Directions ought to have been raised at the preliminary stage or before trial, and not at the address stage. This Court is a court of substantial justice and not of technicality. The issue was resolved against the Claimant.

3. On propriety of disciplinary procedure: The Court held that the Defendants fully complied with the applicable terms and conditions of engagement as contained in Clause 11.5.3 of Exhibit BS23. The Claimant was given notice of the allegations, afforded the opportunity to respond, appeared before both the Staff Disciplinary Committee and the Council Disciplinary Committee, and exercised his right of appeal. The argument that criminal allegations must first be determined by a court of competent jurisdiction before an employer can take disciplinary action was rejected. This issue was resolved against the Claimant.

ISSUES

As framed by Claimant’s Counsel:

1. Whether this Court should strike out the joint statement of defence of all the Defendants for being in breach of the mandatory provisions of the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and Marking of Exhibits) Practice Directions (No. 1) 2022?

2. Whether the Claimant’s action is statute barred?

3. Whether an administrative body has jurisdiction to try an allegation of gross misconduct which amounts to a crime against a person?

4. Whether the termination of the Claimant’s employment by the Defendants was wrongful and illegal?

As framed by Defendants’ Counsel:

1. Whether the case of the Claimant is not statute barred having been commenced after the expiration of the three-month limitation period prescribed in Section 2(a) of the Public Officers’ Protection Law of Kwara State?

2. Whether, having regard to the state of the pleadings and the evidence proffered, the Claimant is entitled to be granted the reliefs/prayers sought?

As adopted and determined by the Court:

1. Whether the case of the Claimant is barred by the statute of limitation?

2. Whether the defence processes filed should not be struck out for failure to comply with the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and Marking of Exhibits) Practice Directions (No. 1) 2022?

3. Whether the Defendants followed the proper procedure in the disengagement of the Claimant?

4. Whether the Claimant is entitled to all or some of the reliefs sought against the Defendants?

RATIONES DECIDENDI

STATUTE OF LIMITATION — HOW TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

“a cause or matter is said to be barred by statute when the cause or matter is not instituted within the time frame stipulated by a statute. A cause or matter that is statute barred cannot be heard and determined in a Court of law. A Claimant in such a suit is said to have lost his right to ventilate same in the Court and hence denied access to judicial redress. To determine if a suit is statute barred, it is imperative for the Court to first find out when the cause of action arose. This is determined by looking at the statement of facts filed and find out the date the cause of action arose. The Court is then to compare same with the date when the Claimant filed his suit and the period allowed by the statute.” – Per J. D. Peters, J

CONFLICT BETWEEN GENERAL AND SPECIFIC LIMITATION STATUTES — THE SPECIFIC PROVISION PREVAILS OVER THE GENERAL

“It is my view that while the Public Officers Protection Act makes a general provision as to limitation of time for action against Public Officers/public Institutions generally, the provision of Section 10(1) of the ITF Act (i.e. Section 11(1) of the 2004 Act) specifically provides for any action in relation to effective operation of the statute, and the law makers intention in that Section is for the six years’ time limit to apply specifically where the subject matter of the action is a default of contribution to the Respondents.” – Per J. D. Peters, J. (adopting the dictum of Bada, JCA in NDIC v. Governing Council of the ITF & Anor (2011) LPELR-19755(CA))

AMBIGUITY IN LIMITATION LEGISLATION — MUST BE RESOLVED IN FAVOUR OF THE EMPLOYEE

“It is a trite law that the Court would not permit a party to profit or benefit from his own error or self-created confusion. Whatever confusion exists in determining the applicable limitation legislation to apply in the instant case is caused by the Defendants. It is also a trite position of the law that in interpreting contracts of employment, ambiguity must be resolved in favour of that which gives the employee an advantage.” – Per J. D. Peters, J.

NON-COMPLIANCE WITH PRACTICE DIRECTIONS — MUST BE RAISED AT PRELIMINARY STAGE AND NOT AT ADDRESS STAGE

“I must stress the point that this point ought to have been raised by Counsel at the preliminary stage or at least before trial if at all. Issues of non-compliance with Practice Direction are not meant to be raised at an address stage. This Court is not a Court of technicality but one of substantial justice.” – Per J. D. Peters, J.

WRONGFUL TERMINATION — BURDEN ON EMPLOYEE TO EXHIBIT CONTRACT OF EMPLOYMENT AND PROVE BREACH

“Claimant in this case argued that his disengagement was wrongful and illegal. He has the burden of proving what makes his disengagement wrongful by exhibiting to the Court his contract of employment containing the terms and conditions of same and bring to the fore how and in what manner the Defendants breached the applicable terms and conditions.” – Per J. D. Peters, J.

DISCIPLINARY PROCEDURE FOR DISMISSAL — REQUIREMENTS THAT MUST BE SATISFIED BY THE EMPLOYER

“Where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if say, and accepted that he committed the act after investigation.” – Per J. D. Peters, J. (adopting the dictum in Nigerian Maritime Administration and Safety Agency v. Stephen AD Odey (2013) LPELR-21402(CA))

EMPLOYER’S RIGHT TO DISCIPLINE — NO OBLIGATION TO AWAIT CRIMINAL COURT DETERMINATION BEFORE TAKING DISCIPLINARY ACTION

“There is no law which restricts the right of an employer to discipline its workforce or that an employer must await a decision of a criminal Court where the misconduct of its employee amounts to crime.” – Per J. D. Peters, 

COMPLIANCE WITH DISCIPLINARY PROCEDURE — FINDINGS OF THE COURT WHERE FULL PROCEDURE WAS FOLLOWED

“My finding in the entire case is that the Defendants complied fully with the terms and conditions of engagement in disengaging the Claimant and as such this issue can only be resolved against the Claimant.” – Per J. D. Peters, J.

DISMISSAL COMMUTED TO COMPULSORY RETIREMENT ON APPEAL — ENTITLEMENT OF EMPLOYEE TO APPEAL AND EFFECT OF COMPASSIONATE COMMUTATION

Claimant tendered Exh. BS7, a communication from the Staff Disciplinary Committee dated 26/7/21 with the title – Request for your Submission on the case of Allegation of Clearing and Signing of Edited Students’ Certificate Slips… I find the report of the Staff Disciplinary Committee in Exh. BS24. It is my finding that the Defendants subsequently set up Council Disciplinary Committee to which Claimant was invited by Exh. BS9. The report of the Council Disciplinary Committee is contained in Exh. KP1. I further find that the Council commuted Claimant’s dismissal to compulsory retirement by Exh. BS13.” – Per J. D. Peters, J.

CONTRACT OF EMPLOYMENT IN STATUTORY INSTITUTIONS — PARTIES BOUND BY THE DISCIPLINARY PROCEDURE STIPULATED IN THE CONDITIONS OF SERVICE

“For the dismissal of the Claimant, which was eventually commuted to compulsory retirement to stand, the Defendants must follow the procedure itemized in Clause 11.5.3 of Exh. BS23.” – Per J. D. Peters, J.

FAIR HEARING IN DISCIPLINARY PROCEEDINGS — WHAT CONSTITUTES SUFFICIENT COMPLIANCE WITH NATURAL JUSTICE

“When Claimant was being cross examined on 10/3/25 he testified that he was asked for explanation on the allegations against him; that he provided same; that he was afforded opportunity to appear before the Staff Disciplinary Committee; that he did not express lack of confidence in the Committee in writing; that after he was recommended to be dismissed he appeared before the Council Disciplinary Committee; that he appealed against his dismissal and that his dismissal was commuted to compulsory retirement.” – Per J. D. Peters, J.

COURTS OF SUBSTANTIAL JUSTICE — TECHNICALITIES MUST NOT BE PERMITTED TO DEFEAT THE COURSE OF JUSTICE

“This Court is not a Court of technicality but one of substantial justice.” – Per J. D. Peters, J.

ENTITLEMENT TO RELIEFS — WHERE DISCIPLINARY PROCEDURE WAS PROPERLY FOLLOWED AND FAIR HEARING WAS ACCORDED, CLAIMANT IS NOT ENTITLED TO REINSTATEMENT OR ANY CONSEQUENTIAL RELIEF

This Court has found and pronounced that the dismissal of the Claimant was in compliance with the applicable terms and conditions of engagement and that there was no breach of the rule of fair hearing. Having so found, the Claimant is not in any way entitled to any of the reliefs sought against the Defendants.” – Per J. D. Peters, J.

CASES CITED

STATUTES REFERRED TO

⦁ Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36

⦁ Public Officers’ Protection Law of Kwara State — Section 2(a)

⦁ Limitation Law of Kwara State — Section 18

⦁ National Industrial Court of Nigeria (Civil Procedure) Rules 2017

⦁ National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and Marking of Exhibits) Practice Directions (No. 1) 2022

⦁ Regulations Governing Conditions of Service for Both Senior and Junior Staff of Kwara State Polytechnic, Ilorin (Revised 2010) — Clause 11.5.3

OTHER CITATIONS

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