Mr. John OsemenEttikioya -VS- The Rector, Auchi Polytechnic, Auchi & 3

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON THURSDAY 4TH DAY OF OCTOBER, 2018

BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/ABJ/16/2017

BETWEEN:

JOHN OSEMEN EHIKIOYA………………………….CLAIMANT

AND

THE RECTOR, AUCHI POLYTECHNIC AUCHI }
THE REGISTRAR, AUCHI POLYTECHNIC AUCHI}
AUCHI POLYTECHNIC AUCHI } DEFENDANTS
MINISTER OF EDUCATION AND THE VISITOR }

TO AUCHI POLYTEHNIC, AUCHI }

JUDGMENT

The summary of the Claimant’s case, as gathered from the Complaint and Statement of Facts filed on 23/01/2017 to initiate the instant action is that, until his dismissal on 01/12/2016, the Claimant was as an academic staff in the Department of Accountancy, School of Business Studies of the 3^rd Defendant. By nature of his appointment, it is only the Governing Council of the 3^rd Defendant that is vested with the power to discipline and remove him.

It is the Claimant’s case that his purported dismissal by the 3^rd Defendant on the directive of the 4^th Defendant was wrongful and unlawful.

Whereof the Claimant had claimed against the Defendants, the reliefs set out as follows:

A DECLARATION that the letter of dismissal dated the 1^st December, 2016 issued by the Defendants to the Claimant dismissing him from the employment of the 3^rd Defendant not being authorized or a product of the Governing Council of the 3^rd Defendant is nullity ab initio and it is therefore ineffectual to dismiss the Claimant from the service of the 3^rd
A DECLARATION that arising from the aforesaid, the Claimant is still in the employment of the 3^rd
A DECLARATION that the Claimant cannot be dismissed from the employment of the 3^rd Defendant on the basis of a finding by an Ad-hoc Committee set up by the management of the 3^rd Defendant without due compliance with the procedure for the discipline of a senior staff as enshrined in the Regulations governing the senior staff of the Polytechnic made pursuant to the Federal Polytechnics Act.
A DECLARATION that the Ad-hoc Committee set up by the 3^rd Defendant lacks the vires/power to try the Claimant for any alleged misconduct as contained in the Federal Polytechnic Manual and the Federal Polytechnics Act as well as recommend his dismissal from the employment of the 3^rd
A DECLARATION that the purported dismissal of the Claimant by the Defendants on the basis of the report of an Ad-Hoc ‘Fact-Finding’ Committee set up by the 1^st– 3^rd Defendants is unlawful, illegal and unconstitutional because the entire process violated his right to fair hearing.
A DECLARATION that the purported dismissal of Claimant’s appointment by the Defendants was done in breach of Federal Polytechnics Act and the Federal Polytechnic Staff Manual 1990.
A DECLARATION that the 4^th Defendant lacks the powers/vires to unilaterally order or direct the 1^st– 3^rd Defendants to dismiss the Claimant from its employment because such powers are exclusively reserved for the Governing Council of the 3^rd Defendant by the Federal Polytechnics Act.
AN ORDER compelling the Defendants to reinstate and/or restore the Claimant to his post at Auchi Polytechnic with all his rights, entitlements and other prerequisites of his office.
AN ORDER compelling the Defendants to pay to the Claimant all his salaries and allowances from 1^st of December, 2016 till the day of judgment and henceforth.

The 1^st – 3^rd Defendants joined issues with the Claimant by filing their Statement of Defence on 23/02/2017. The 4^th Defendant did not file a Statement of Defence.

The 1^st – 3^rd Defendants’ defence, in brief, is that the Defendants complied with the required procedure in terminating the Claimant’s appointment. The 1^st – 3rd Defendants contended that the gravity of the allegation against the Claimant necessitated the urgent decision made by the 3^rd and 4^th Defendants.

At the plenary trial, the Claimant testified by himself as the sole witness. He adopted his Statement on Oath and further tendered in evidence eleven (11) sets of documents as exhibits. He was further subjected to cross-examination by the 1^st – 3^rd Defendants’ learned counsel, after which the Claimant closed his case.

For the 1^st – 3^rd Defendants, one Cornelius S. Garba, who claimed to be the Deputy Registrar, Senior Staff Establishment of the 3^rd Defendant, also testified as the sole witness for the 1^st – 3^rd Defendants. He was in turn subjected to cross-examination by the Claimant’s learned counsel; and on that note the 1^st – 3^rd Defendants also closed their case.

As for the 4^th Defendant, the Court was informed by its learned counsel, O. A. Ikupolati Esq., that as a nominal party, the 4^th Defendant shall align its defence with that of the 1^st – 3^rd Defendants.

Upon conclusion of the plenary trial, parties filed and exchanged their written final addresses in the manner prescribed by the Rules of this Court.

The 1^st – 3rd Defendants filed their written final address on 02/05/2018, wherein their learned counsel, P.Y. Musa, Esq., raised a lone issue as having arisen for determination in this suit, that is:

Whether in view of the peculiar facts and circumstances of the case, the Claimant’s dismissal from the service of the 3^rd Defendant was not lawful.

The Claimant, on his part, filed his final written address on 14/05/2018, by which his learned counsel, D.A. Alegbe, Esq., formulated three broad issues, set out as follows:

Whether the Claimant was accorded a fair hearing by the Defendants having regards to Paragraph 8:4 of the Federal Polytechnic Staff Manual 1990 and Section 17 Federal Polytechnics Act Cap F17 Laws of Federation 2004 in enforcing the recommendation of the Investigative Ad-hoc Committee on scandalous publication against Auchi Polytechnic Auchi to dismiss him from his employment as a Chief Lecturer in the Department of Accountancy.
Whether the Defendants complied with Section 17 of the Federal Polytechnics Act and Paragraph 8:4 of Chapter 8 of the Federal Polytechnic Staff Manual 1990 in dismissing the Claimant from his employment, if the answers to the above issues are in the negative,
Whether the Claimant is not entitled to reinstatement to his position and his salaries and allowances as a Chief Lecturer.

Suffice to note that the 4^th Defendant learned counsel did not file a final address. The 1^st – 3^rd Defendants did not file a Reply on Points of law to the Claimant’s written address.

Flowing from my understanding of the Claimant’s claim, the totality of the pleadings, the relevant evidence adduced at the trial, including the documents tendered as exhibits, the arguments articulated in the parties’ final submission and the totality of the circumstances of this case, the focal issue that call for resolution in this suit without prejudice to the issues raised by the parties can be succinctly reframed as follows:

Whether or not the Claimant established his claim of unlawful dismissal by the Defendants; and if so, whether he is entitled to his claims in this suit.

As I proceed to resolve this issue, I had also given careful consideration to and taken due benefits of the final written and oral arguments as canvassed by learned counsel for the contending sides; and whenever I deem it necessary in the course of this judgment, I shall make specific reference to their submissions.

On the basis of the pleadings and evidence led at the trial, it is undisputed that the Claimant’s employment is statutory employment.

To establish that there was a statutory contract of employment, CW1 tendered in evidence his letter of offer of appointment as Assistant Lecturer dated 26/06/1989 as Exhibit C1. He also testified that his appointment was confirmed through a letter dated 20/07/1992 and that he was later promoted to the post of a Chief Lecturer in 2012. The confirmation letter and promotion letter were tendered in evidence as Exhibit C2 and Exhibit C3 respectively.

The CW1 testified that he was invited by the Ad-hoc Committee on scandalous publication against the 3rd Defendant and that on 25/04/2016 he appeared before the Committee as a witness to unravel the circumstances surrounding the media publication of alleged impropriety in the 3rd Defendant. The invitation letter was tendered in evidence as Exhibit C4.

The CW1 further testified that after his appearance at the Committee, a query dated 08/06/2016 was issued to him and that he replied the query on 09/06/2016. However, in spite of his reply to the query, he was dismissed from the 3rd Defendant’s employment by a letter dated 01/12/2016. The query issued by the 3rd Defendant to the CW1, his reply to the query and the letter of dismissal were tendered in evidence as Exhibit C5, Exhibit C6 and Exhibit C7 respectively.

The CW1 further testified that being a senior staff of the 3^rd Defendant, he was never invited to appear before the Senior Staff Disciplinary Committee as required by the Federal Polytechnic Staff Manual before he was dismissed. He also testified that the 1^st Defendant did not comply with the provisions of Senior Staff Condition of service in dismissing him from the 3^rd Defendant’s employment as he was not given the notice of the reason for his dismissal neither was he given the opportunity to make representation to the Council and that the report of the Ad-hoc Committee upon which his dismissal was based was never presented to the Governing Council for consideration.

The CW1 further testified that by virtue of his employment as an academic staff and a senior staff of the 3^rd Defendant, the only body vested with the power of removal and discipline over him is the Governing Council of the 3^rd Defendant and that he cannot be dismissed from the 3rd Defendant’s employment except with strict compliance with the statutes creating the employment.

Consequently, he wrote a letter of protest dated 08/12/2017 against his dismissal and same was served on the 1st Defendant through courier service after several attempts were made to serve through the Head of his Department and the 1^st Defendant. The letter of protest and the receipt of the payment of the courier were admitted in evidence as Exhibit C8 and Exhibit C8A respectively.

The CW1 also testified that his dismissal was wrongful and unlawful as the 3^rd Defendant had no Governing Council at the time of his dismissal; the 4^th Defendant therefore lacked the power to unilaterally direct the 3^rd Defendant to dismiss him. CW1 tendered in evidence the Federal Polytechnic Staff Manual 1990 as Exhibit C9.

CW1 further testified that the investigation conducted by the Ad-hoc Committee was in breach of the 4^th Defendant’s directive circulated through the 3^rd Defendant’s News Bulletin stating that no petition should be investigated without a sworn affidavit. The Auchi Polytechnic News Bulletin Vol. 98 No 99 dated 15/10/2016 stating this directive is tendered in evidence as Exhibit C10.

CW1 further testified that his accusers were not made known to him and neither was he afforded fair hearing and his dismissal was in breach of his right to fair hearing and therefore, as a result of all the aforementioned, the present action was initiated.

It is significant to state that whilst answering questions under cross-examination by the Defendants’ learned counsel, the CW1 further testified that even though he was aware that a Committee was set up by the 4^th Defendant, he was not invited by the Committee.

The defence put forward by the Defendants as it is material to the issue under resolution, according to the DW1, is that the management of the 3^rd Defendant is vested with powers to carry out preliminary investigation of facts and issue queries to staff, hence the setting up of the Ad-hoc Committee and the query issued to the Claimant was not in breach of the Federal Polytechnics Act and the Federal Polytechnic Staff Manual.

The witness further testified that the Claimant was invited and he appeared before the Ad-hoc Investigative Committee to answer to allegations leveled against him and that he fully participated in the proceedings of the Ad-hoc Committee.

DW1 further testified that the Ad-hoc Committee constituted to investigate the scandalous Punch Newspaper publication of 09/04/2016 against the 3^rd Defendant was not the Disciplinary Committee envisaged by the Federal Polytechnics Act and the Federal Polytechnic Staff Manual but that the said Ad-hoc Committee was a mere fact finding Committee constituted to investigate the grave allegations made against the 3^rd Defendant in the newspaper publication.

The witness also testified that the Ad-hoc Committee was set up by the 3^rd Defendant after a meeting of all the Heads of Federal Polytechnics in Nigeria was held where it was agreed that the scandalous publication should be investigated. He also testified that the Auchi Polytechnic News Bulletin of 15/10/2016 is not applicable to the Claimant’s case which occurred between April and June 2016.

According to DW1, the Claimant was adequately informed of the purpose for his invitation by the Committee and he was afforded ample opportunity to present his case before the Committee. DW1 also testified that the administrative query issued to the Claimant is different from the grounds of removal of an academic staff as provided in the Federal Polytechnic Manual.

The witness further testified on the issue of the recommendation for the Claimant’s dismissal, that after the Claimant was found culpable of the allegation, the management of 3^rd Defendant and the 4^th Defendant took an urgent action because of the gravity of the allegation. The copy of the said findings/recommendations for the Claimant’s dismissal is tendered in evidence as Exhibit D1.

The witness also maintained that the 3rd Defendant is vested with powers to carry out preliminary investigations and issue queries because it is the 3^rd Defendant’s Management team that is involved with the day to day administration of the 3^rd Defendant and not the Governing Council.

The witness further maintained that the Claimant was lawfully dismissed from the 3^rd Defendant on the instruction of the 4^th Defendant being the Visitor to the 3^rd Defendant.

While answering questions under cross examination by the Claimant’s counsel, the DW1 admitted that the Ad-hoc Committee which investigated the Claimant was set up by the 3^rd Defendant’s Acting Rector and that the 3^rd Defendant had no Governing Council as at the time the Claimant’s letter of dismissal was issued and that the Governing Council was constituted by the President in April 2017.

It is significant to further state that the DW1 also admitted during cross-examination that the Ad-hoc Committee set up by the 3^rd Defendant was a Fact- Finding Committee and that the Claimant was not invited as an accused person since the scandalous publication did not specify any name. DW1 further testified under cross examination that the Joint Committee of Council and Academic Board usually sit together to determine issues pertaining to members of the academic staff.

The witness also testified under cross examination that during the tenure of the Acting Rector, there was a Senior Staff Disciplinary Committee headed by one Mr. E. S. O. Afolayan which was charged with the responsibility of receiving, considering matters of staff discipline and making recommendations to the 1^st Defendant. A certified true copy of appointment of the chairman and members of the Senior Staff Disciplinary Committee was tendered in evidence as Exhibit D2.

Now, from the reliefs sought and the facts of the Claimant’s case, it is evident that the Claimant’s Complaint in this suit is for the unlawful termination of his employment with the 3^rd Defendant.

I agree with the submissions of the learned counsel for the Claimant that the onus is on the Claimant who is alleging unlawful termination of employment to prove it and to discharge this burden; the Claimant must plead and prove the following:

That he or she is an employee of the Defendant;
Place before the Court the terms of his or her employment and the terms and conditions of the employment;
State the authority for appointment and removal;
The circumstances by which the employment can be determined;
The manner the said terms of the employment were breached by the employer.

See Igbinovia V U.B.T.H. (2001) FWLR Pt 50 1745 at 1761; Ayorinde V Oyo State Government (2007) All FWLR Pt 356 Pg 709 at 722; Oloruntoba-Oju V Abdul-Raheem (2009) All FWLR Pt 497 Pg 1 at 42; Imasuen V University of Benin (2011) All FWLR Pt 572 1791 at 1809.

Parties are ad idem on the facts that the Claimant was an employee of the 3^rd Defendant before his employment was terminated and that his employment was terminated by the Defendants.

The testimony of the CW1 in challenging the termination of his employment is that the only body that can discipline and remove him from employment is the Governing Council of the 3^rd Defendant which had not been constituted when he was issued with a letter of query and the letter of dismissal. The Claimant’s grouse is that the 4th Defendant as the Visitor of the 3^rd Defendant University does not have the authority to direct his removal. In support of his proposition, learned Claimant’s counsel cited the case of Olaofe V University of Ibadan (2002) FWLR Pt 84 Pg 75 at 94

In the instant case, the Claimant pleaded in his Statement of Facts that his employment was statutorily protected and that the termination of his employment was not in accordance with the provisions of the Federal Polytechnics Act (the Act) and the Federal Polytechnic Staff Manual 1990 governing the conditions of service of Senior Academic Staff. He tendered the Federal Polytechnic Staff Manual 1990 regulating the Condition of Service of Senior Academic Staff in evidence as Exhibit C9. It is the Claimant’s case that the terms and conditions of his employment are as stipulated in this exhibit and the Federal Polytechnics Act but that the provisions were not complied with when his employment was terminated.

In his written address, the Claimant’s counsel submitted that the Claimant cannot be removed from his employment unless the terms and conditions in Section 8.4 of Exhibit C9, the Federal Polytechnic Staff Manual 1990, are complied with.

It is significant to make reference to the material provision of the Section 17 of the Federal Polytechnics Act which I have taken liberty to reproduce as follows:

“(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the staff of the Polytechnic other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall:

give notice of those reasons to the person in question;
Afford him an opportunity of making representations in person on the matter to the Council; and
if he or any three members of the Council so request within the period of one month, beginning with the date of the notice, make arrangements;

if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report it to the Council: or
for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and

for the person in question to be afforded the opportunity of appearing before and being heard by the investigating committee with respect to the matter,

and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the direction of the Council.(underlining mine)

This provision of the Federal Polytechnics Act which is impari materia with the provisions of Section 8.4 of the Federal Polytechnic Staff manual (Exhibit C9), clearly sets out the procedure to be followed before a staff of the 3^rd Defendant, other than the Rector, can be removed from employment. The procedure for removing a staff of the 3^rd Defendant, as provided in the law, is a condition in the contract of employment of staff of the 3^rd Defendant and which was also stated in Exhibit C1, the letter of offer of appointment.

It is trite law that where the terms and conditions of a contract of employment are specifically provided for by statute, it is said to be an employment with statutory flavor or contract protected by statute. See Olaniyan V University of Lagos (1985) 2 NWLR Pt 9 Pg 599; Okwusidi V Ladoke Akintola University (2012) All FWLR Pt. 632 Pg 1774 at 1786.

The effect of the above provision of the Federal Polytechnics Act is that, the Claimant’s employment is regulated by statute. Put in another way, the Claimant’s employment had statutory protection and in such an employment, the staff cannot be validly removed from the employment unless the provisions provided in the statute for removing the staff is followed strictly. See Oloruntoba-Oju V Abdul-Raheem (supra) at 42. In the instant case therefore, the provision of the Law must be strictly complied with for the removal of the Claimant from his employment.

The Claimant gave evidence that his employment was terminated on 1^st December, 2016 through Exhibit C7. The relevant portion of the said exhibit is reproduced as follows:

“Consequent upon the above publication, and the investigations carried out during which you appeared, I am directed to convey to you the approval of the Honourable Minister of Education that you be dismissed from the Service of Auchi Polytechnic, with effect from 1^st December, 2016.”

The content of Exhibit C7 is very clear as to the circumstances of the termination of the Claimant’s employment. His employment was terminated on the basis of the publication of The Punch Newspaper dated Saturday, April 9, 2016 which was captioned “School where prostitutes assist male students to get marks” and the “Honorable Minister of Education” approved that the Claimant’s appointment be terminated. The letter was signed by one Dr. (Mrs.) M. I. Aashikpelokhai, the Registrar.

Prior to the Claimant’s dismissal, he had appeared before an Investigating panel on 26/09/2016 after which he was issued a query, Exhibit C5. The relevant portion of Exhibit C5 reads:

“According to the Federal Polytechnic Staff Manual 1990, Section 1.3.19 your action amounts to gross misconduct”.

The Claimant was therefore removed from the 3^rd Defendant’s employment based on the allegation of gross misconduct.

The Claimant further testified that upon receipt of Exhibit C7, he wrote Exhibit C8, a letter protesting against his dismissal. By that exhibit, the Claimant challenged his dismissal as “contrary to the provisions of Section 17 of the Federal Polytechnics Act” which stipulates that the procedure for the discipline and removal of academic staff must be strictly complied with. He further requested in the said letter of protest for a review and a withdrawal of the letter of dismissal.

Now, the issue to be resolved is, whether the Defendants complied with the procedure laid down in the law in terminating the Claimant’s employment.

As earlier I had noted, the Defendants had maintained that the Claimant was lawfully dismissed from the employment of the 3^rd Defendant following the instruction of the 4^th Defendant. The arguments canvassed by the learned counsel to the 1^st – 3^rd Defendants in his final written address is that, the 4^th Defendant’s powers as the Visitor of the 3^rd Defendant, is in exhaustive under Section 4(b) of the Federal Polytechnics Act in that, the Visitor is empowered to take any action which is deemed fit in respect of any affairs of the Polytechnic.

With due respect to learned counsel, this argument is totally misconceived.

It has long been settled that provisions of a Constitution or Statute must be construed literally giving the words in such Constitution or Statute their ordinary grammatical meanings. In ascertaining the true meaning of the provisions of a Constitution or Statute, the Constitution or the Statute being interpreted must be read as a whole and construed so. See Buhari & Anor V Obasanjo & Ors (2005) 13 NWLR (Pt.941) 1 at 219; Hon. Rotimi Chibuike Amaechi V INEC & Ors (2008) 5 NWLR Pt 1080 227 at 314

Section 17 (1) of the Federal Polytechnics Act reproduced below states the procedure to be adopted when an allegation of misconduct is alleged against a staff of the 3^rd Defendant before such a staff can be removed.

The Council must give notice of allegation of the misconduct to the Claimant,
The Claimant must be afforded an opportunity of making representations on the matter to the council,
The Claimant or any three members of the council so required within the period of one month, with effect from the date of the notice make arrangements:

(a) For a joint committee of the council and the senate to investigate the matter;

(b) To afford the claimant an opportunity of appearing before the committee and of making his defence

The council, after considering any representations and reports made in pursuance of the sub-section, is satisfied that the Claimant should be removed
The council then removes the Claimant by an instrument in writing signed by the Chairman of the Council on the directions of the council.

The Claimant had contended that this procedure was not followed before his employment was terminated by the Defendants and that particularly, the Governing body which is empowered to approve his dismissal was not constituted or in place at the time the letter terminating his employment was issued to him.

I have no doubt in my mind that a community reading of the identified Section 4 (b) and Section 17 (1) of the Federal Polytechnics Act show that it is the Council of the Polytechnic that must remove the members of its academic staff. Ayorinde V Oyo State Government (2007) All FWLR Pt 356 Pg 709 at 722;

The defence put up the Defendants that the Management of the 3^rd Defendant and the 4^th Defendant took an urgent step because of the gravity of the allegation in the publication is inconsistent with the procedure required by the Act for removal of academic staff. The instruction or actions which could flow from the Visitor in exercise of his power in Section 4 (b) of the Federal Polytechnics Act is the “instruction consistent with the provisions of this Act. The 4^th Defendant lacks the vires/power to dismiss the Claimant without the Council. And I so hold. Issues were also duly joined by the parties on whether or not the Claimant was given fair hearing before he was removed. As I earlier stated, both sides are ad idem that the employment and removal of the Claimant is statutorily regulated and governed.

Now, by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in the determination of his civil rights and obligation including any question or determination by or against any government or authority, a person is entitled to fair hearing within a reasonable time by a Court or other tribunal.

This settled or avowed position of the law concerning fair hearing was reiterated recently in the case of Chief J.L.E. Duke V Government of Cross-River State & Ors (2013) 8 NWLR Pt 1356 347 at 366 where Galadinma JSC stated:

“The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto”.

The provisions of the Constitution just alluded is to ensure that a person shall not be denied opportunity of been heard before any matter affecting him is determined by any tribunal be it administrative or panel or a Court.

I had earlier noted that the employment of the Claimant is statutory and his appointment is protected by the Federal Polytechnics Act Cap F17 of 2004 and by Section 17 thereof, the Claimant’s employment cannot be disciplined or terminated outside the laid down procedures contained in the said law. See C.B.N & Anor V Mrs. Agnes M. Igwillo (2007) 14 NWLR Pt 1054 393 AT 420, where Akintan JSC put it pungently as follows:

“Where an employee’s service is protected by statute and his employment is wrongfully terminated’ he would be entitled to reinstatement in his office and in addition, damages representing his salaries during the period of his purported dismissal. See Shitta Bey Vs the Federal Public Service Commission Supra, Olaniyan Vs University of Lagos Supra and Udo Vs Cross River State News Papers Corporation Supra. This court clearly stated the legal position of public servants in the Olaniyan Vs University of Lagos case Supra. It is that public servants in the established and pensionable cadre of the Federal Government service do not hold their office at the pleasure of the Federal Government. Rather their appointments are based upon the rules and regulations, statutes or memoranda of appointment. It was also clearly stated in the same case that the University of Lagos and the University Council, both being creature of statute cannot act except within and under the powers conferred on them by the relevant statute.

This principle was reiterated thus in Oloruntoba-Oju V Abdul-Raheem (supra) at 46 to 47, the Supreme Court held-

“When an office or employment has a statutory flavor in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting an individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions. There is a presumption that when the legislature confers a power on an authority to make a determination, it intends that the power shall be exercised judicially in accordance with the rules of natural justice.”

The same principles are fully applicable to the Claimant’s appointment. The Defendants in answer to the allegation of the Claimants that he was removed in breach of rules of natural justice and fair hearing took up the gauntlet and boldly pleaded and asserted that the Claimant was removed for being guilty of gross misconduct. To further prove this assertion, the Defendants tendered in evidence Exhibit D1.
Where as in this case the employers of the Claimant, that is the 1^st – 3^rd Defendants, have pleaded that the Claimant was guilty of gross misconduct, they have a bounden duty to substantiate them and must proffer credible evidence to show that the employee was given ample opportunity to defend himself.

See Shell Petroleum Co Ltd V Chief Victor Sunday Olarewaju (2008) 18 NWLR Pt 1118 1 AT 19 where Tabai JSC had this to say:

“The guiding principle which has been articulated and applied in many cases including OLATUNBOSUN VS N.I.S.E.R Council (1988) 1 NSCC 1025, (1988) 3 NWLR (Pt. 80) is that an employer is not bound to give reasons or cause for terminating the appointment of its employee. But where as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. In the case of the Appellant, having given gross misconduct as its reasons for Respondents dismissal, has the onus to establish that the Respondent was indeed guilty of the alleged misconduct to warrant his dismissal. And in a case such as this, the Court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached”

The Defendants profoundly accused the Claimant of gross misconduct based on the newspaper publication of the Punch. They pleaded in paragraph 15 of their Statement of Defence thus:

“15 The Claimant was found culpable of the allegation before recommendation was made to the Honourable Minister of Education”

The Claimant appeared before the Fact – Finding Ad-hoc Committee on invitation as a witness and not as an accused on the allegation of newspaper publication. A person who appears as a witness before a panel be it judicial or administrative cannot be indicted or accused of impropriety bordering on crime or other misconduct unless he is given adequate opportunity of being heard in his defence either orally or in writing. Where witnesses appear and give evidence against such a person he must be afforded opportunity to debunk such allegations and cross examine the witnesses.

See UNTMB V Hope Nnoli (1994) 8 NWLR Pt 363 Pg 376 at 419; PHMB V Mrs. Doris Edosa (2001) 5 NWLR Pt 207 612 at 655.
Under cross examination by D.A. Alegbe Esq. for the Claimant, DW1stated categorically that:

“The Claimant did not have the opportunity of representation at Joint Committee because there was no Governing Council.”

DW1 further stated under cross examination:

“Even though the Senior Staff Disciplinary Committee is the Committee where the Claimant ought to have full trial and opportunity of bringing witnesses, this was not done at the Ad-hoc Committee he appeared before”

With the evidence falling from the lips of the DW1, the Deputy Registrar, Senior Staff Establishment, one does not need a soothsayer before one could conclude that the Claimant was denied fair hearing.

My inevitable conclusion is that the dismissal of the Claimant as a Chief Lecturer of the 3^rd Defendant did not comply with due process of law particularly Section 36(1) of 1999 Constitution and the Federal Polytechnics Act.

Let me also deal with the submission of the learned counsel to 1^st -3^rd Defendants that the Claimant cannot be allowed to enjoy his promotion which had not been regularized by the Council of the 3^rd Defendant and yet in the same vein complain that the same Council was not constituted to approve his dismissal. With due respect, this argument as canvassed by the learned counsel is mischievous.

One should not lose sight of the fact that the Claim before this Court is for an order to compel the Defendants to reinstate and to pay the Claimant all the entitlements due to him for his unlawful dismissal from the employment of the 3^rd Defendant. It is a cardinal principle of adjudication in this country that when an issue is not placed before a Court of law, it has no business whatsoever to deal with it. See Olusanya V Olusanya (1983) 1 SCNLR 134; Shell Petroleum Development Co. Ltd V Esowe (2007) LPELR 8670. Therefore, in the light of the principle enunciated above, this Court cannot deal with the issue of the regularization of the Claimant’s promotion as this issue is not placed before it. And I so hold.

I am quite convinced that the termination of the Claimant’s employment did not follow the statutory procedure. I am also satisfied that the Claimant has proved his case. It is my further finding that the termination of the Claimant’s employment was improper, unlawful, null and void.

It is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing legally standing in the way of the staff from having his or her job back with its attendant rights, benefits and privileges.

See Visitor, Imo State University & Ors V Prof Okonkwo & Ors 2014 LPELR; Kwara Polytechnic Ilorin V Oyebanji (2008) All FWLR (Pt. 447) 141 at 199; Olaniyan V University of Lagos (supra).

In such a situation, the Court has the power to set aside the unlawful termination and order the reinstatement of the employee.

In the circumstance of this case where it is found that the contract of employment is guided by statute, the termination of the Claimant’s employment ought to be set aside and the Claimant is entitled to a consequential relief of reinstatement and payment of his outstanding salary from the time of the unlawful termination of his employment. See Omidiora V Federal Civil Service Commission (2008) All FWLR (Pt. 415) 1807.

In the final analysis, the judgment of the Court is that the termination of the Claimant’s employment was unlawful and the Claimant’s case succeeds.

For avoidance of doubts and abundance of clarity, judgment is hereby entered in favour of the Claimant upon the following terms:

It is hereby declared that the termination of the Claimant’s employment is unlawful, illegal, null and void as it was done in violation of the statute and regulation guiding the Claimant’s contract of employment with the 3^rd Defendant. Consequently, the letters dated 8^th June, 2016 and 1^st December, 2016 are hereby set aside.
The Defendants are hereby ordered to re-instate the Claimant forthwith to his employment in the 3^rd Defendant. The Defendants are further ordered to place the Claimant in the appropriate position and level he ought to be at the moment in the employment of the 3^rd Defendant had his employment not been unlawfully terminated.
The Defendants shall pay the Claimant all his outstanding wages, salaries, allowances and other emoluments accruing to him from 1^st day of December, 2016 being the date of the unlawful termination of his employment, up to the date of this judgment.

I further award cost of N200,000.00 against the Defendants.