PROFESSOR BADAIKI AFEISIMI DOMINIC-VS- GOVERNOR EDO

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 26^TH NOVEMBER, 2018

SUIT NO: NICN/AK/24/2016

BETWEEN:

PROFESSOR BADAIKI AFEISIMI DOMINIC……. CLAIMANT

AND

GOVERNOR EDO STATE
ATTORNEY GENERAL OF EDO STATE
PROF. JULIUS IHONVBERE 1^ST– 4TH

(SECRETARY TO EDO STATE GOVERNMENT) DEFENDANTS

HON. GIDEON OBHAKHAN RESPONDENTS

(EDO STATE COMMISSIONER OF EDUCATION)

HIS ROYAL HIGHNESS (PROFESSOR) GREGORY I. AKENZUA, OON

(PRO-CHANCELLOR AND CHAIRMAN OF GOVERNING COUNCIL)

PROFESSOR EMERITUS T.O.K. AUDU

(MEMBER OF AMBROSE ALLI UNIVERSITY GOVERNING COUNCIL)

PROFESSOR (MRS.) M.O. KADIRI

(MEMBER OF AMBROSE ALLI UNIVERSITY GOVERNING COUNCIL)

DR. GODWILL OGBOGODO

(MEMBER OF AMBROSE ALLI UNIVERSITY GOVERNING COUNCIL)

ELDER PIUS OMOFUMA

(MEMBER OF AMBROSE ALLI UNIVERSITY GOVERNING COUNCIL) 5^TH – 16TH

PROF. OYAZIWO O. ALUEDE DEFENDANTS

(SENATE REPRESENTATIVE IN THE JOINT COUNCIL AND SENATE) APPLICANTS

SELECTION BOARD FOR SELECTION OF VICE-CHANCELLOR

OF AMBROSE ALLI UNIVERSITY)

PROF. F.U. IGENE

(SENATE REPRESENTATIVE IN THE JOINT COUNCIL AND SENATE)

SELECTION BOARD FOR SELECTION OF VICE-CHANCELLOR

OF AMBROSE ALLI UNIVERSITY)

MRS. R.O. IMOISILI

(REPRESENTATIVE OF EDO STATE MINISTRY OF EDUCATION

IN AMBROSE ALLI UNIVERSITY GOVERNING COUNCIL AND

JOINT COUNCIL AND SENATE SELECTION BOARD FOR SELECTION

OF VICE-CHANCELLOR OF AMBROSE ALLI UNIVERSITY)

SIR CHRIS M. ADAMAIGBO

(REGISTRAR AND SECRETARY TO AMBROSE ALLI

UNIVERSITY GOVERNING COUNCIL)

VICE CHANCELLOR, AMBROSE ALLI UNIVERSITY
AMBROSE ALLI UNIVERSITY
PROF. IGNATIUS AKHAKHIA ONIMAWO

REPRESENTATION:-

OBAIZOMWON HOLDING THE BRIEF OF A. O. MOHAMMED (SAN)
L. OMORODION FOR THE 5TH – 16TH DEFENDANTS

NO APPEARANCE FOR THE 1ST – 4TH DEFENDANTS

JUDGMENT

The Claimant by a Complaint before this Court on the 9th August, 2016 claims against the Defendants as follows:

1) A Declaration that the appointment by the 1st Defendant of the 16th Defendant, Prof. Ignatius Akhakhia Onimawo as Vice Chancellor of the 15th Defendant constitutes an unfair labour practice and contrary to international labour standards and therefore illegal.

2) A Declaration that the Claimant has a legitimate expectation interest in being appointed the Vice Chancellor of the 15th Defendant University having come first in the selection interview.

3) A Declaration that the 1st Defendant ought to have appointed the Claimant as the Vice-Chancellor of the 15th Defendant.

4) An Order of Court setting aside the appointment by the 1st Defendant of the 16th Defendant, Prof. Ignatius Onimawo as the Vice Chancellor of the 15th Defendant.

5) An Order of Court appointing the Claimant as the Vice Chancellor of the 15th Defendant in accordance with the extant laws of the 15th Defendant and with effect from the date of delivery of judgment in this matter.

6) An Order of Court restraining the 1st Defendant and/or the 15th Defendant or any of the authorities of the 1st Defendant and/or the 15th Defendant from appointing any person other than the Claimant to the office of the 14th Defendant of the 15th Defendant University until the expiration of the Claimant and in accordance with the extant laws governing the 15th Defendant.

7) An Order of Court directing the 16th Defendant, Professor Ignatius Akhakhia Onimawo to vacate the office of the 14th Defendant of the 15th Defendant, stop functioning and parading himself as Vice Chancellor of the 15th Defendant.

8) Cost of this action in the sum of N1,000,000.00

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendants filed a memorandum of appearance, joint statement of Defence and other accompanying processes.

The summary of this case is as follows; the Claimant is a Professor of Law in the 15^th Defendant, Ambrose Alli University, Ekpoma, Edo State, and according to his averment, sometimes in February, 2016, and in view of the fact that the tenure of the incumbent Vice Chancellor of the 15^th Defendant, Professor (Mrs) C.A. Agbebaku, was to end on 2^nd May, 2016, the Governing Council of the 15^th Defendant placed an advertisement for the post of Vice-Chancellor. The advertisement was placed in the 15^th Defendant’s University News Bulletin of 1^st March, 2016 and other Newspapers. The Claimant in response to the advertisement submitted his application together with thirty copies of his Curriculum Vitae and credentials. The Claimant was later invited for an interview, along with eight other Professors for the position. He was interviewed by the Joint Council and Senate Selection Board made up of the 5^th, 6^th, 7^th, 8^th, 9^th, 10^th, 11^th 12^th and 13^th defendants. The Claimant averred that the interview was video-taped in a bid to ensure transparency, objectivity, credibility and merit in the selection process. After the interview exercise, the report of the interview with the scores of each candidate was compiled and the Claimant got an aggregate score of 374/460 (81.4%). The Board thereafter went on to recommend three candidates for the appointment in order of merit as follows ;(1) Professor Dominic Afeisimi Badaiki – 81.4%; Professor Ignatius Akhakhia Onimawo – 76.3%; and Professor George Obozokhale – 75.7%

This report was later presented to the Governing Council, of which it was endorsed and forwarded to the 1^st Defendant as their recommendation. The Claimant was however caught unawares on 11^th May, 2016, when Professor Ignatius Akhakhia Onimawo (16^th Defendant) was announced on the Edo Broadcasting Service as the new Vice Chancellor of the 15^th Defendant.

The claimant alleged that the appointment of the 16^th Defendant was based on tribalism, ethnicity, primordial sentiment and bad faith, which formed the basis for his complaint of unfair labour practise and breach of his rights and expectation.

WHEREOF his claims against the Defendants as aforestated above.

The 1^st to 4^th Defendants filed their Joint Statement of Defence on 24^th March, 2017. They averred that the 1^st Defendant received no recommendation from the members of the Governing Council of the 15^th Defendant as alleged and as such had nothing to do with the appointment of the 16^th Defendant as the Vice Chancellor. They further submitted that the 1^st Defendant neither made any such appointment nor issue any letter of appointment to the 16^th Defendant. The 1^st, 2^nd, 3^rd and 4^th Defendant averred further that during the trial, they will raise points of law on their being parties to this suit on the following grounds to wit:

That the 2^nd 3^rd and 4^th defendants are agents of a disclosed principal who cannot be personally responsible for their actions carried out in the course of their duties as agents.
That the claimant has no reasonable course of action against the 1^st to 4^th Defendants.
That the names of the 1^st, 2^nd, 3^rd and 4^th Defendants be struck out of this suit consequent upon (a) and (b) above.

Finally, the 1^st to 4^th defendants urged the court to dismiss the suit with substantial cost as same is grossly misconceived, frivolous, vexatious and gold-digging meant merely to embarrass and annoy the defendants and a waste of time of this Court.

The 5^th -16^th Defendants on 14^th December, 2016 filed a Memorandum of Appearance, Statement of Defence, Witness Statement on Oath, List of Witness as well as List of Document to be relied upon at the trial. The 5^th – 16^th Defendants admitted paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 36, 37, 38 and 39 of the Statement of Facts but denied paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 40, 41, 42, 43, 44, 45, 46(a, b, c, d, e, f, g) 47, 48, 49, 50 and 51 of the Statement of Facts. The 5^th – 16^th Defendants aver that by virtue of the provisions of First Schedule of the Ambrose Alli University, Ekpoma Law 1999 (as amended) Section 3(1), it is the 1^st Defendant (Visitor) who appoints the Vice Chancellor after due compliance with the provisions of Section 3(1) of the Law, and that it is not part of the law, that it is the person who came first in the interview that would be appointed the Vice Chancellor.

On the 12^th day of July, 2017 the claimant filed his reply to the 1^st – 4^th Defendants’ Defence and additional list of documents. In his Reply, Claimant avers that subsequent to the recommendation of the Governing Council, the 5^th Defendant wrote the 1^st Defendant forwarding the recommendation referred to in his Statement of Facts. The Claimant further averred that he requested for the Council’s recommendation from the 13^th and 15^th Defendants under the Freedom of Information Act, 2011 by a letter dated 20^th June, 2016 but they failed and refused to give him the said letter.

The Claimant stated that it is not the practice to expressly state in an advertisement that the candidate who come first in the interview will be appointed, but choosing such a candidate has been the customary practice of the university and same is dictated by fairness and the need to uphold excellence.

The trial of this case commenced on 13^thMarch, 2018 when the documents listed on the subpoena dated 30/01/2018 were tendered by Chris Majebi Adamarigbo (Registrar of Ambrose Alli University) and were admitted as Exhibits D1 – D10. The Claimant testified for himself as CW1. He adopted his sworn statements on oath and tendered several documents which were admitted in evidence and marked as Exhibits D11 – D19, he was duly cross examined. In the course of trial, counsel to the 1^st-4^th defendants objected to Exhibits D11,13,16 & 17 arguing that they are public documents addressed to public officers and ought to have been certified as provided for under section 104 of the Evidence Act. The court however deferred the objection to the Final Written Address.

The 5^th – 16^th Defendants opened their defence on the 13^th day of March, 2018, out of turn because the witness for the 1^st – 4^th Defendant was not in court, this was without objection from the other counsel in this matter, and with the permission of court. They called Christopher Majebi Adamorigbo as DW1, he adopted his written statement on oath and identified Exhibit D11. He was duly cross examined. The 1^st – 4^th Defendants’ also called one James Jatto Aigbokian as DW2, he also adopted his written statement on oath and was also cross examined on 10^th May, 2018. The Defence closed thereafter and the case was adjourned for adoption of final written addresses.

Parties filed their respective final written addresses, which were adopted on 10^th of October, 2018.

In the 1^st-4^thdefendants’ final written address dated 6^th June, 2018, the counsel formulated two(2) issues for determination to wit:

Whether there is any reasonable cause of action against the 1^st to 4^th Defendants to warrant their being made parties to this suit.

Assuming the answer to issue 1 is in the affirmative, whether the Claimant has proven his case against the Defendants to entitle him to the reliefs sought.

On issue one, Counsel to the Defendants submitted that the facts proven do not establish any reasonable cause of action against the 1^st to 4^th Defendants. He cited the cases of UBA V UMEODUAGU (2004) 11 M.J.S.C. 127 at 129 (para G-A);Chevron (Nig.) Ltd v Lonestar Drilling Nig. Ltd (2007) 10 MJSC 103,

The Counsel submitted that the Governor of Edo State and the 2^nd, 3^rd and 4^th Defendants have stoutly denied that the Governor of Edo State appointed the 16^th Defendant as the V. C. of the 15^th Defendant. He submitted that the person that appoints the V. C. under the University Law is the Visitor to the University and not the 1^st Defendant, according to him the Governor of Edo State is distinguishable from the Visitor, and that although the Governor of Edo State is also the Visitor, they are two different/separate positions resident in one individual, which positions are occupied and exercised in different capacities.

It is the submission of the Counsel that where a statute confers a specific or special powers on any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law. Consequently, the 1^st Defendant cannot be said to have been the person that appointed the 16^th Defendant. He cited the case of Anya V. Iyayi (1993) 7, NWLR (PT. 305) 290 and Emuze v. V. C. University of Benin (2003) NWLR. (PT 828) Page 378 at page 398 -399, paras B-A: Pp 398 para.B, Pp 399 paras. A-D, 401 paras. D-H.

The 1^st – 4^thDefendants’ Counsel submitted further that even though the authorities cited above have to do with the position of the Head of State vis-à-vis the Visitor of a University, the position of the Law is the same when the position in issue is that of the Governor of a State while performing his role as a Visitor of a University. Thus, the 1^st Defendant though the Governor of Edo State and also the Visitor of the 15^th Defendant, cannot be said to be the authority that appointed the 16^th Defendant. He therefore argued that to this extent, he is not a necessary party to this suit, and consequent upon this, the 2^nd, 3^rd and 4^thDefendants, who were apparently sued for the alleged acts of the 1^st Defendant, cannot also be said to be necessary parties to this suit. He cited the cases of Babayeju v Ashamu. (1998) 9 NWLR (Pt.567) 546 (SC); Panalpina v Olandeen Int. (2010) 19 NWLR (Pt.1226) 1 (SC)

Finally, V.U Adeleye urged the court to resolve this issue in favour of the 1^st – 4^th Defendants and strike out their names from this suit with substantial cost awarded in their favour.

On issue two, counsel argued that in the unlikely events that the court holds that the 1^st Defendant and the Visitor of AAU, Ekpoma are not distinguishable and that the 1^st to 4^th Defendants are necessary parties to this action, he submitted that the Claimant has failed woefully to prove his claims against the 1^st to the 4^th Defendants. He cited Section 3(1) of Ambrose Alli University Law, 1999 (as amended)which provides as follows:

“The Vice-Chancellor shall be appointed by the Visitor after consultations with the Council and the Senate from amongst the selected persons of academic eminence of not below the status of a University Professor”

and submitted that by this provision, the visitor is to ensure the following in the appointment of a Vice Chancellor to the University:

That he consults with the Council and senate of the University
The candidate is one of academic eminence.
He must be a University Professor
He must be appointed from amongst those selected by the Council.

1^st – 4^th Defendants counsel argued that a careful look at the evidence before the court would show that the appointment of the 16^th Defendant as the V, C. of the University was done strictly in line with the Law guiding the appointment. The evidence of the Claimant and Exhibits tendered disclosed that the 16^th Defendant is a University Professor and he was one of the three (3) candidates recommended by the selection body of the University to the Visitor by the Governing Council. This, counsel submitted is clearly stated in paragraphs 26, 28, 29, 30 and 31 of the Claimant’s statement on oath made on 9^th of August, 2016 and adopted as his evidence at the trial, and in addition

Under cross examination the Claimant maintained this position and stated thus:

“… It is true that the 16^th Defendant is amongst those recommended by the selection board to the Visitor for appointment as the Vice Chancellor of the Ambrose Alli University, Ekpoma. It is also true that all the three names submitted to the 1^st Defendant were Professors …”

According to counsel, the selection board presented to the Visitor the names of three persons whom they considered fit for the appointment from which the Visitor is to pick one person for the appointment and as a result, nothing done under the law can be held to be against the law. The law places an obligation on the Claimant to succeed on the strength of his case and not on the weakness of the defence. He relied on the cases of UKAEGBU V NWOLOLO (2009) 12 W.R.N 1 at page 42 – 43 lines 48-22 ; ABUBAKAR VS YAR ADUA (2009) 5 WRN 1 at page 149 lines 23-25.; HON. BARRISTER JOSEPH EFFIONG ETENE v. HON. SAVIOUR OKON NYONG & ORS. (2012) LPELR-8031(CA)

On the basis of the evidence before the court, counsel urged the court to resolve issue 2 in favour of the 1^st to 4^th Defendant.

In conclusion, Counsel submitted that this action has no merit and is gold-digging and urged the court to dismiss the entire suit with substantial cost awarded in favour of the Defendants.

The 5^th – 16^th defendants filed their written address on the 16^th May, 2018 in which three issues were formulated to wit:

Whether this Honourable Court has jurisdiction to entertain this case
If the answer to question No. 1 is in the positive, whether the claimant has a cause of action against the defendants in this case?
If the answer to question Nos. 1 and 2 is in the positive, whether on the merits the claimant has been able to establish his case and is entitled to judgment on the basis of his claims?

The defendants in respect of issue one submitted that the court lacks jurisdiction to entertain this case, as section 254 C(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not mince words that the scope of jurisdiction it has vested in the National Industrial Courts extends:

“to the exclusion of any other court in civil cases and matters relating to or connected to any labour, employment, the conditions of service of labour, employee, worker and matters incidental thereto or connected therewith”

The 5^th – 16^th defendants posited that the Labour Act, cap L.1, 2004 LFN which includes the conditions and welfare of labour provides thus: “General provisions as to protection of wages, contracts of employment and terms and conditions of employment” therefore, it cannot be disputed that employment and terms and conditions are not only incidental to, but integral matters in labour law generally. Also, in section 91 of the Labour law, the term “worker” is “any person who entered into or works under a contract with an employer”. The 5^th – 16^th defendants also pointed out the claimant under cross examination stated that there is no master and servant relationship between him and the 15^th Defendant as far as the position of Vice Chancellor of the 15^th Defendant is concerned and this was positively pleaded by the 5^th – 16^th defendants in their further Amended Statement of Defence, It follows therefore that the jurisdiction of the Court by virtue of section 254C of the 1999 Constitution (3^rd Alteration) 2010 is ousted completely. See, Coca Cola (Nig) Ltd v. Akinsanya (2017) 17 NWLR 74, 131 S.C.

Chief Ogbodu SAN submitted that there is no provision in the Extant Law of the 15^th Defendant that gives the court the powers to appoint the Vice Chancellor of the University and as a result, the court lacks the vires to foist on the 1^st and 15^th Defendants who should occupy or to be appointed into the office of a Vice Chancellor of the 15^th Defendant. He stressed that the appointment of a Vice Chancellor is within the internal administration of the 15^th Defendant and the court lacks jurisdiction to interfere in the internal administration of the University as to who should be appointed as Vice Chancellor. He cited Shell Pet. Dev. V. Nwaka (2001) 10 NWLR PT720, 64 at 84 para D-E.

The 5^th – 16^th Defendants argued that the action is not properly constituted as proper parties are not in court and where proper parties are not before the Court, the Court lacks jurisdiction to adjudicate. He cited Amuda v. Ajobo (1995) 7 NWLR (Pt.) 170; Plateau State v. AG. Fed.(2006) 3 NWLR (Pt. 967) 346, and argued that since this action did not include the Visitor, it is incompetent and these issues should be resolved in favour of the 5^th – 16^th Defendants.

On the second issue, the 5^th – 16^th Defendants reiterated that it is the Visitor and not the Governor that appoints a Vice Chancellor. Also, that since the Claimant is alleging international labour standard, he has a duty to plead and proof the labour practice he is relying on by the rules of this court, furthermore he argued, the Claimant has not shown any contract with the Defendants that was breached in respect of which the Court is entitled to invoke its judicial powers to determine, submitting that a court has no jurisdiction over a case when there is no dispute. He cited Plateau State Govt. V. A.G. Fed. (2006) 3 NWLR (Pt. 967) 346. He therefore submitted that since there is no dispute between the parties, the court is empowered by law to strike out the suit. He cited Osilesi v. Pro-Chancellor and Chairman, Council of O.O.U (2015) 15 NWLR (Pt. 1485) 286 at 305.

On issue three, the 5^th – 16^th Defendants submitted that 1^st Defendant has no power to appoint a Vice Chancellor for the 15^th defendant and only the visitor does. Moreso, the claim is speculative and the court will not act on speculation. He cited Agip (Nig) Ltd v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 348 at 413 ratio 24. He further submitted that there is no basis for setting aside the appointment of the 16^th Defendant because he was properly appointed.

Finally, learned SAN for the 5^th – 16^th Defendants urged the court to resolve all the issues in their favour and dismiss the entire case of the Claimant with substantial cost.

The claimant filed his final written address on 5^th July, 2018 and formulated two (2) issues for determination to wit:

Whether this honourable court has the jurisdiction to hear and determine this matter.
Whether the claimant is entitled to his reliefs as per the general form of complaint.

The claimant argued that the issue of jurisdiction had earlier been settled in this court on the 16^th day of March, 2017, when it was raised and argued before my learned brother. In a considered ruling, the Notice of Preliminary Objection filed by the Defendants was dismissed and the court held that it is vested with the requisite jurisdiction/powers to hear and determine this suit. He cited the case of Dr. R.P. UGO V. A.C. UGO [2017] 18 NWLR (Pt.157) 218, at 241-242 and 244-245 and submitted that the court cannot lawfully revisit the issue of jurisdiction since this court has earlier ruled on this issue.

On issue two, the counsel submitted that the claimant has placed overwhelming evidence before this Court to substantiate his case thereby entitling him to the grant of his reliefs as per his General Form of Complaint. The grouse of the claimant against the defendants especially the 1^st defendant, is the role played in the selection/appointment process of a Vice Chancellor for the 15^th defendant, a procedure which contravenes fair labour practice, is discriminatory in nature and also against the legitimate expectation of the claimant who having fulfilled all requirements and came out tops, expected to be appointed, but the 1^st defendant appointed the 16^th Defendant, his kinsman in his stead.

Learned SAN for the Claimant submitted that the defendants in placing reliance on the provision of Section 3(1) First Schedule of the Ambrose Alli University Law, failed to avert their mind to the later provision of that same Ambrose Alli University Law, specifically Section 22 which provides thus;

“No person shall be required to satisfy requirements as to any of the following matters, that is to say, race (including ethnic groupings), sex, place of birth, or family origin or religious or political persuasion, as a condition of becoming or continuing to be a student at the University, the holder of a degree of the University or of an appointment or employment at the University, or a member of a body established by virtue of this Edict; and no person shall be subjected to disadvantage or accorded advantage in relation to the university, by reference to any of those matters:…”

He submitted that it is clear from the above provision that the powers conferred on the 1^st defendant by the Ambrose Alli University Law in the appointment of a Vice Chancellor is not absolute but same is subject to a later provision of the law on non-discrimination quoted above. Counsel submitted that it is unfair for the 1^st defendant to deprive the Claimant of a position he lawfully should be occupying by merit.

Learned SAN argued that the rule on interpretation of statute provides that a statute is to be read as a whole and not in isolation of other provisions of that statute. He cited the case of SKYE BANK V IWU 2017 16 NWLR (PT. 1590) P. 24, and submitted that given the combined effect of Section 3(1) First Schedule and Section 22 of the Ambrose Alli University Law (as amended), the decision of the 1^st defendant to appoint a Vice Chancellor for the 15^th defendant is subject to the provision of Section 22 of the Ambrose Alli University Law 1999 (as amended). The intention of the law-maker in Section 3(1) First Schedule and 22 of that Law is that the 1^st defendant is to take such decision on fair basis without any form of discrimination on account of race, religion, ethnic group etc; the 1^st defendant however failed to take cognisance of this and this is evident by the overwhelming evidence before this court. He urged the court to hold that this amounts to an unfair labour practice. It was the submission of learned silk that the 1^st defendant did not place any evidence before the court to show the reason why he did not appoint the Claimant who had highest score, came first and was recommended by the Selection Board and Governing Council.

He therefore urged the court to hold that the 1^st defendant’s action is a violation of the Ambrose Alli University Law and the Constitution of Federal Republic of Nigeria and same amounts to an unfair labour practice.

The 5^th – 16^th Defendants’ reply on points of law was dated and filed on the 24/07/2018 and adopted, in the Reply, learned silk argued that this case started de novo before this court, and was initially before my learned brother, that having started de novo they are not contending that all the processes already filed should be filed afresh in this case, rather their contention is that they are free to bring afresh any application brought before the previous Judge and in which he gave an adverse Ruling against them, He cited Bakule v. Tenerewa (Nig) Ltd (1995) 2 NWLR Part 380 at page 738, paras F-H, where it was stated that:

“ON EFFECT OF STARTING A CASE AFRESH BEFORE ANOTHER JUDGE

The effect of starting a case afresh before another Judge is to sweep clean all previous proceedings in the case. Any of the parties therefore is free to bring afresh any application brought before the previous Judge and in which he gave an adverse ruling against that party.”[Odi v. Osafie (1987) 2 NWLR (Pt. 57 at 512 referred to, followed and applied.] (P. 738, para G) Per Mohhamed, J.C.A. at page 738, paras F-H; Biri v. Mairuwa (1996) 8 NWLR Part 467, 387 – 510 at page 432, paras G-H; and N.N.P.C. v. SLB Consortium Ltd. (2008) 16 NWLR Part 1113, at page 306, paras G-H.

The 5^th – 16^th Defendants argued that it is not the law that where a matter starts de novo, orders remain valid except upturned on appeal, because a Court has the power to always rescind orders made without jurisdiction. He cited Akinbobola v. Plisson Fisko (1991) 1 NWLR PT 167, 270 at 279 to wit:-

“If a Court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore the status quo. (p.279, para.B).”

The defendants submitted that the transfer of this case by my learned brother to this court, for the case to start de-novo is a tacit way of restoring the status quo so that the case can start on a clean slate.

The Defendants argued further that the evidence disclosed in the course of trial revealed that there is no Master and servant relationship between the Claimant and the 15^th Defendant, this new evidence was gleaned from the Claimant’s admission under cross examination, Therefore nothing prevents this court from invoking Section 254C(1) of the Constitution, Labour Act Cap L.I. 2004 LFN, as in the cases of Coca-Cola Ltd. V. Akinsanya (Supra) and Shell Pet Dev v. Nwaka (supra) because the former Judge did not consider the new issue that came up during the trial in this court, and this goes to the foundation of this case.

The 5^th – 16^th Defendants’ submitted that the right to fair hearing as guaranteed by Section 36 of the CFRN 1999 (as amended) would have been breached if they are denied the right to argue the jurisdictional issues which came up during the trial of the main case de-novo, and were not addressed by the previous Judge in her Ruling, more so that the issue of jurisdiction can be raised at any stage of the proceedings.

I have carefully listened to the witnesses called by the parties in this matter, I have also read through the processes and addresses filed by counsel in this matter, and I have thereafter come up with two issues that will best determine this suit to wit;

Whether or not this court has the requisite jurisdiction to proceed with this suit
Whether or not the Claimant is entitled to the reliefs sought.

On issue one, V.U Adeleye, counsel to the 1^st– 4^th Defendants and Chief H.O Ogbodu SAN for the 5^th–16^th Defendants raised the issue of the jurisdiction of this court to hear this suit in their written addresses, they also conceded to the fact that the issue of jurisdiction had earlier been raised and argued before my learned brother, and the court had delivered a considered ruling on it, and this was prior to the suit been remitted to this court for trial de novo. The ruling of court was that it has jurisdiction, they however submitted that the matter having started de novo means that the case is starting on a clean slate before a new Judge and as such parties are at liberty to raise afresh any issue brought and decided before the previous judge. Chief Ogbodu SAN for the 5^th – 16^th Defendants further argued that the issue of jurisdiction can be revisited and rescinded in the course of trial, and most especially in this case, when the issue came into the fore during trial that there is no contract of employment between the 15^th Defendant and the Claimant. On the other hand A.O Mohammed SAN for the Claimant submitted that the issue of jurisdiction had earlier been settled in this court on the 16^th day of March, 2017, when my learned brother delivered a ruling after arguments on the Preliminary Objection raised by defendants. The court overruled the objection and held that it is vested with the requisite jurisdiction/powers to hear and determine this suit. The position of the Law on jurisdiction is well settled, and is succinctly captured here as follows;

“The law is solid steel that jurisdiction is fundamental and crucial because if there is want of jurisdiction, the proceedings of a court will be afflicted by a fundamental and deadly virus which will result in fatality. In legal parlance the proceedings will be null, void and of no effect no matter how brilliantly they might have otherwise been concluded.” Per F. Omoleye, J.C.A., in Eregbowa & Ors v. Obanor & Ors. [2010] LPELR-8964 (CA).

Also in Iyaka v. Chindo & Ors [2010] LPELR-9018 (CA). Per Oredola J.C.A.

“It is trite that the issue of jurisdiction is crucial, fundamental and a threshold issue. It is the heartbeat of the adjudication process. Thus, a proceeding commenced or continued without jurisdiction is futility personified and failure dignified, because it is null and void ab initio. The matter must be initiated by due process of law and sustained therewith by the fulfilment of any condition precedent in relation thereto. Indeed, that is why the issue is capable of being raised at any stage of the proceeding and even on appeal, by either of the parties or suo motu by the Court. See Shola v. Ajiboye [1994] 6 NWLR (Pt. 352) 506; Ogbebor v. Danjuma [2003] 15 NWLR (PT.843) 403 and Elebanjo v. Dawodu [2006] 15 NWLR (Pt.1001) 76.” Per Oredola J.C.A. in Iyaka v. Chindo & Ors [2010] LPELR-9018 (CA).

It is therefore not in dispute that Jurisdiction is the grundnorm/source of the power or authority a court requires to dispense with any case placed before it.

Having said that, it is pertinent for this court to resolve the issue of whether it is vested with the jurisdiction to entertain this objection in the light of the fact that there is a considered ruling on this issue delivered by my learned brother on this, It is necessary to do this before considering the merits of the objection raised in the Defendants’ written address.

In Al-Bishak v. National Productivity Centre &Anor. [2015] LPELR-24659 (CA) at pages 57-58, Oseji, J.C.A., held as follows;

“Curiously enough in the course of a careful perusal of the Record, it was discovered that learned counsel for the 2^nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 350B of the record. In its ruling as contained in [sic] pages 350B and 350C of the Record, the lower Court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the Centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it. Incidentally there was no appeal against the said Ruling which means that it still subsists despite the fact that the judge who gave the Ruling is not the same judge who concluded the hearing and delivered the final judgment. Nonetheless it is still the same court and any such ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another judge more so that in this case it was in the same Court. When a case is to be tried de novo before another judge hearing it or due to a reassignment order, every ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting.”

See also the case of Suberu v. A.C.B [2002] LPELR 12207.

In ONYEMAECHI NWAOSU & ORS V. HFP ENGINEERING NIGERIA LIMITED 2014 LPELR 23197 CA S.C OSEJI JCA said;

It is therefore not within the powers and competence of the same court (though presided over by another judge) to revisit, ignore or set aside its previous order duly made upon a formal application by a party in a suit. In other words, the Lower Court has become functus officio of the Ruling delivered on 14-10-96 granting leave to sue in a representative capacity and the only option left for the respondent in such a situation is to have recourse to an appeal and not by way of raising the issue in a written address. Once an issue has been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow parties to reopen the same issue before it for relitigation. See NNAJIOFOR VS OKONU (1985) 2 NWLR (PT 9) 686 at 688. JOHN ANAY SONS AND CO LTD VS NATIONAL CEREALS RESEARCH INSTITUTE (1997) 3 NWLR (PT 491) 1. In SANUSI vs AYOOLA (1992) 11 – 12 SCNJ 142, the Supreme Court per Karibi whyte JSC put it this way:-

“There is the well settled elementary and fundamental principle of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. See EKERELE VS EKE (1925) 6 NLR 118, AKINYEDE VS. THE APPRAISER (1971) ALL NLR 162. It cannot assume the status of an appellate court over its own decision, except there is statutory power to do so.”

In line with the decision in Al-Bishak v. National Productivity Centre & Anor. (supra) and other cases cited above I find that having filed and argued the preliminary objection in which a considered ruling was delivered by my learned brother in this suit, the ruling in that application still subsists until set aside on appeal.

Chief Ogbodu SAN in his Reply on point of Law pointed out that the claimant admitted under cross examination that there is no master and servant between him and the 15^th Defendant, and that this piece of evidence revealed during the trial ousts the jurisdiction of this court, as the cause of action in this suit did not arise from the work place and/ or based on any contract of employment. He further argued that the cause of action in this suit is not covered by Section 254C(1) of the CFRN (3^rdAlteration) Act 2010 that spelt out the jurisdiction of this court. The claimant in this suit is alleging unfair Labour practise as the basis of his action, and this is captured in his originating processes. It is not in doubt that this court is conferred with the jurisdiction to adjudicate on unfair labour practice or international best practises in the Labour industry across the country, and an employee who considers the policy or practises in his work place unfair, discriminatory or vindictive can institute a court action. The grouse of the Claimant against the 15^th Defendant in this case is what he perceived as an unfair labour practise in his work place, which by virtue of Section 254C (1) of the CFRN, he is within his rights to contest in court, I therefore find that the court is armed with the requisite jurisdiction to entertain this suit, I so hold.

Flowing from this and all that has been stated above, I find no reason to depart from the ruling of my learned brother delivered on the 16^th of March, 2017. Consequently, I also find that the Preliminary objection raised in the Defendants final written addresses is unmeritorious and is hereby accordingly dismissed. I so hold.

Before going into issue two, it will be recalled that counsel to the 1^st-4^th defendants objected to Exhibits D11,13,16 & 17 arguing that they are public documents addressed to public officers and ought to have been certified as provided for under section 104 of the Evidence Act. The court however deferred the objection to the Final Written Address. The documents in question are;

Vanguard Newspaper of 1^st March, 2016 Exhibit D11
Traditional Rulers and Chiefs Law 1979 of Bendel State (as applicable in Edo state) Exhibit D13
Claimant’s letter dated 01/07/2016 Exhibit D16
Claimant’s letter dated 01/07/2016 Exhibit D17

Exhibit D11 is a National Newspaper and as such a public document which ought to have been certified in compliance with Section 104 of the Evidence Act, having not been duly certified the document is hereby expunged and marked rejected. Exhibit D13 is a photocopy of the Law of Bendel state, and as the court are bound to take judicial notice of all Legislation/ Laws even if not pleaded, see MOBIL PRODUCING NIG. UNLTD& ANOR V. UDO TOM UDO [2008] LPELR 8440 CA I found no reason to disturb the admissibility of the law, moreso the 1^st – 4^th Defendants are not contesting the content, as I am bound to take judicial notice of same, I so hold. Exhibits D16 and D17 on the other hand are letters authored by the claimant himself although written to a public authority, it is admissible as a personal copy of a document authored by the claimant and in his custody and need no certification, see ALH JIMOH AJADI SUU V, JOBAK NIGERIA LTD [2012] LPELR 7932 CA, I so hold.

On issue two, whether or not the claimant is entitled to the reliefs so stated in the originating processes;

It is the case of the Claimant that despite coming first in the selection process for the post of Vice Chancellor of the 15^th Defendant, he had a legitimate expectation of been appointed which was scuttled by the 1^st defendant’s appointment of the 16^th defendant based on ethnic bias attributable to the fact that both of them (1^st and 16^th Defendants) are kinsmen from the same clan, a decision which according to him is discriminatory and rooted in unfair labour practice, and also against the legitimate expectation of the claimant who by right had fulfilled all requirements for the position and came out on top of the list, with expectations of been appointed the Vice Chancellor of the 15^th defendant.

The Defendants on the other hand contended that it is the visitor to the University that retains the discretion to decide on who to appoint, by virtue of the provisions of First Schedule of the Ambrose Alli University Ekpoma Law 1999 (as amended) Section 3(1) whereof which reads:-

“The Vice Chancellor shall be appointed by the Visitor after consultation with the Council and the Senate from amongst selected persons of academic eminence of not below the status of a University Professor”

From all that has been stated above, it is crystal clear that the procedure for the appointment of a vice-chancellor of the 15^th Defendant are;

The visitor (Governor) has the sole discretion to pick whomever he chooses from among the qualified selected persons.
There is nowhere in the AAU Law that it is stated that the visitor must pick the person with the highest score.
The visitor based on his discretionary power picked the candidate he wanted from amongst the qualified selected persons presented to him by the university council.

Part 1(2A) @ pg.3 of the Ambrose Alli University Ekpoma Law 1999 as amended described a visitor thus;

“visitor”-means the person for the time being holding substantively the office of the Military Governor of the state.

@pg 2 Governor-means the Military Governor of Edo state of Nigeria.

17(1)- The Governor shall be the Visitor of the University.

The first schedule Section 3(1)- The Vice-Chancellor shall be appointed by the Visitor after consultations with the Council and the Senate from amongst selected persons of academic eminence of not below the status of a university Professor; (underlining mine for emphasis)

Exhibit D19 (News Bulletin of 24^th, February, 2016) paragraph 4 provides thus;

THE CANDIDATE:

The candidate for the post of Vice-chancellor is expected to be a Professor of not less than 10 years standing with high repute and renown; and a scholar whose achievements are acclaimed locally, nationally and internationally. In addition a candidate applying for the post shall be expected to:

Possess requisite, cognate administrative, academic and managerial experience necessary to provide effective, efficient and dynamic leadership for the University. (Possession of a Ph.D. or equivalent qualification, though not mandatory will be an added advantage).
Have the disposition, acumen and zeal for mobilising all stakeholders in and outside the institution towards achieving the objective, vision and mission for which the University was created.

iii. Be a morally upright person of high priority and integrity, and of impeccable character and reputation.

Be a person with courage and strong character, who can take decisions on the merit of facts and principles and not on the basis of sentiments or pressure from individuals or groups.
Be a person whose records of past and current activities can command respect from students and staff. He must have the capacity to create the needed bridges between staff and students on the one hand and between town and gown on the other.
Have a good grasp of Information Communication Technology and appreciates its application in contemporary knowledge industry.

vii. The candidate must not be more than 65 years of age at the time of assumption of duty as Vice-Chancellor.

viii. The Vice-Chancellor shall hold office for a single term of 5 years.

Having listed out all of the above, it is clear that the Claimant is not contending that any of the laid down procedures for the selection of a Vice Chancellor was breached but his complaint is that the current Vice-Chancellor was picked over and above him despite the fact that he scored the highest mark in the process of selection and recommendation to the visitor.

It is the position of the law that when an act is shown or appears to have been regularly done, the presumption is that all conditions for its regularity have been complied with. This statutory presumption finds support in the acclaimed Latin Maxim- Omnia rite essepresumptur rite acta, i.e there is a presumption of regularity in respect of official deeds or actions- per Danjuma J.C.A in Dawodu v. Isikalu & Ors [2011] LPELR-4488 (CA).

When the statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards- per Adekeye J.S.C in Oloruntoba Oju v. Abdul-Raheem [2009] All FWLR (pt.497)1

The law is settled that where a statute provides for a way of doing a specific act, any other way than the specific manner provided by that statute will be a nullity and invalid. See Akintokun v. LPDC [2014] 13 NWLR (Pt.1423), Ojukwu v. Kaine & 4 ors [2000] 15 NWLR (Pt.691) 516 at 523.

The contention of the Claimant that the visitor picked the 16^th defendant based on tribal affiliation is unsupported by evidence before me, as he who alleges unfair labour practise retains the duty to adduce proof of the practise and policy of the Employer which is inimical/detrimental to his cause. The Claimant merely tendered Exhibit D13, it is however not clear as to how the 16^th defendant and the erstwhile governor are related or from the same clan and how this influenced his decision, mere dumping of a document without factual and cogent evidence cannot discharge the burden of proof the law placed on the claimant in this case. The court will not go out of its way to fish out facts or evidence for a party. See Dickson v. Sylva &Ors [2016] LPELR-41257 (SC). Mere speculation without factual and cogent evidence cannot form a basis of a judicial finding as the court cannot act on speculation. See Bendex Eng. V. Efficient Pet (Nig.) [2001] 8 NWLR (Pt.715) 333. There is nothing on record stating that the appointment of the 16^th Defendant was based on any other consideration, the appointment of the 16^th defendant is therefore in the face of the law presumed to be proper.

Consequently, I find that the Claimant having failed to discharge the burden of proof placed on him in the allegation of unfair labour practise in this suit, the case is unproven, unmeritorious and fails in its entirety.

The case is hereby dismissed. I so hold.

No order as to cost.

Judgment is accordingly entered.

HON. JUSTICE A.A. ADEWEMIMO

JUDGE