IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 9TH MAY, 2019 SUIT NO: NICN/IL/12/2017
BETWEEN
DR. MURTADA BUSAIR AHMAD …………….CLAIMANT
AND
KWARA STATE UNIVERSITY
THE VICE-CHANCELLOR, KWARA STATE UNIVERSITY
THE REGISTRAR, KWARA STATE UNIVERSITY
ALHAJI KOLA YUSUF…………………………………..DEFENDANTS
(Chairman, Kwara State University
Senior Staff Disciplinary Committee)
(For Himself and Other Members of Kwara State University Senior Staff Disciplinary Committee)
REPRESENTATION:
Dr. D.A. Ariyoosu with him M.A Oladepo for the Claimant
Yakub Dauda for the defendants with him A.O. Obayomi, Dr. M.T Adekilekun, Miss D.L Olomuro, Miss R.T Bamigboye.
JUDGMENT
The Claimant instituted this action vide an originating summons dated 25thOctober, 2017 against the defendants, however, the Court ordered on the 10thApril, 2018 that a Complaint be filed in a ruling delivered. It is the Claimant’s case by his sworn deposition which is in tandem with his pleadings filed on the 24thApril, 2018 that on the 19thMarch, 2013, he was offered a one-year temporary appointment by the 1stdefendant as a Lecturer 1 in the Department of Mass Communication and after a three(3) years’ probation, his appointment was regularized and approved. He was then appointed the Head of department of Mass Communication in acting capacity by a letter dated 4thNovember 2015 and he later resigned his appointment with the 1st defendant’s University with effect from 14thJuly 2017 wherein he resolved to refund three(3) months’ salary in lieu of Notice in line with his letter of employment. That after his resignation and receipt/acknowledgement of same by the 3rddefendant, he was issued a query dated 2ndAugust 2017 by the 1stdefendant signed by the 3rddefendant giving him 48 hours to explain why disciplinary action should not be taken against him for allegation of sexual harassment, extortion, and manipulation of results. He responded to same denying all the allegations levied against him. It is his averment that despite his resignation, the 1stdefendant kept paying his salary for the months of July, August and September 2017 which he strongly believed was an error and he refunded the salaries erroneously paid vide his United Bank of Africa Plc Account to the 1stdefendant’s FCMB Account on the 10thday of August 2017 and he later wrote a covering letter to the 3rddefendant for the refund on the 14thAugust 2017. He stated that he returned the unutilized TETFUND Conference grant given to him by the 1stdefendant and was issued a receipt dated 16thAugust 2017 for the refund and acknowledged the receipts for the payment of 3 months’ salary in lieu of notice. That to his utmost chagrin, he was served with a letter dated 23rd August, 2017 from the 1stdefendant inviting him for an interaction with the Senior Staff Disciplinary Committee of the 4thDefendant on the 28th August, 2017 and another letter again dated 29th August 2017 to appear on the 6th September 2017. It is his averment that due to the fact that he was no longer an employee of the 1stdefendant, he dismissed the invitation and he later sought legal assistance of his counsel who responded to the invitation by the letter dated 28thAugust 2017. Sequel to the letters sent, he received several threat messages and calls from the 3rddefendant that he should appear before the 4th defendant committee on the 6th September, 2017, that when the defendant’s threat was becoming incessant and unbearable, he caused his solicitors to write another letter. That after the institution of this case, he was served with a back dated letter of dismissal from the defendants’ on the 31st October, 2017 which he responded to reiterating his stand that he had since resigned his appointment since 14thJuly 2017.
It is against this backdrop that the claimant claims against the defendants jointly and severally the following reliefs:
A Declaration that the Claimant having resigned his appointment with the 1st defendant vide his letter of resignation dated 14thJuly 2017 has ceased to be the 1st Defendant’s staff and therefore he is no longer in the Services of the 1stdefendant.
A Declaration that having resigned his appointment with the 1st Defendant vide his letter of resignation dated 14thJuly 2017, the claimant cannot be validly subjected to any invitation to appear before the Kwara State University Senior Staff Disciplinary Committee, headed by the 4th Defendant or any committee whatever set up and /or established by the 1st defendant for its staff.
A Declaration that the invitation extended to the Claimant by the Kwara State University Senior Staff Disciplinary Committee of the 1st Defendant headed by the 4th defendant to appear before the said committee after his resignation from the services of the 1stdefendant is bizarre, illegal, unlawful and without any justification whatsoever.
A Declaration that the purported letter of dismissal dated 27thday of October 2017 issued by the 1stdefendant but served on the claimant on the 31stday of October 2017 after the claimant resignation and during the pendency of this suit, when the originating process had already been served on the defendant is bizarre illegal, unlawful, without any justification whatsoever and is therefore null, void and of no effect whatsoever.
An order of Injunction restraining the defendants either by themselves, their agent, servants, privies or any person, body or authority deriving power or authority through them from giving effect to the purported letter of dismissal dated 27th day of October 2017 issued by the 1stdefendant but served on the claimant on the 31st day of October 2017 after the claimant’s resignation and during the pendency of this suit, when the originating process had already been served on the defendants.
An order of Injunction restraining the defendants either by themselves, their agent, servants, privies or any person, body or authority deriving power or authority through them from further inviting, threatening to invite the claimant to appear before the Kwara State University Senior Staff Disciplinary Committee or any such or similar committee of the 1st defendant.
An order of Injunction restraining the defendants with by themselves, their agents, servants, privies or any person, body or authority deriving power or authority through them from taking any step whatsoever to prejudice or adversely affect the claimant’s interest as ex-staff of the 1st defendant.
An Order of this Honorable Court setting aside the purported letter of dismissal dated 27th day of October 2017 issued by the 1st defendant but served on the claimant on the 31st day of October 2017 after the claimant’s resignation and during the pendency of this suit, when the originating process had already been served on the defendants.
The cost of this suit.
Such further or other order(s) as the Honorable Court may deem fit to make in the circumstance of this case.
The Defendants in their statement of defence filed on the 9th May 2018, stated that the claimant as far as they are concerned did not legally resign his appointment from the services of the 1st defendant on the 14th July 2017, that there was no time the 1stdefendant either by itself or any of the defendants acknowledged the purported resignation of the claimant either before, at or after the 14thJuly 2017 as he never fulfilled the condition contingent thereof. They averred that one Janet Oluwatobi, a student of the 1st defendant of the department of Mass Communications lodged a complaint of sexual harassment and extortion against him which he responded to by debunking the said allegation vide a voluntary statement made on the 13thJuly 2017 a day preceding his purported resignation . They averred that the claimant was issued a query after the receipt of his voluntary statement and it was found that the allegations levied against him were true and the circumstances decipherable from his answer to the said allegation indicate that his action towards Miss Janet Oluwatobi and her parent were not proper. The defendants continued that the salaries paid to the claimant was not erroneously paid but were paid due to the fact that he was still in the employ of the defendant, they also noted that the purported letter of resignation of the claimant was received but that the acceptance of the said letter was put on hold because the claimant had not fulfilled condition contingent on his termination and the fact that the claimant has an allegation of misconduct pending against him. It is the further averment of the defendants that the claimant actually through the request form of the 29th and 30th of August 2017 purportedly paid the sum of Five Hundred and Seventy-three Thousand, Nine Hundred and Eighty-Four Naira, Ninety-Three Kobo (N573,984.93) as three(3) months’ salary in lieu of notice but the same was not paid as at when due because the payment of same was not made simultaneously with his purported letter of resignation and the invitations to appear before the Senior Staff Disciplinary Committee was made before the dates of payment. The defendants denied receiving the claimant’s purported letters dated 28thAugust 2017 and 25th September 2017 and threatening the claimant to appear before the Senior Staff Disciplinary Committee. They noted that the claimant was given adequate opportunity to defend himself of the allegations levied against him but chose not utilize same. They stated that the claimant has not validly resigned his employment with the 1stdefendant by the purported letter of resignation of 14thJuly 2017 and that at the time he was queried and invited for interaction with the Senior Staff Disciplinary Committee, he was still under the employment of the 1stdefendant, also that the disciplinary process commenced when the claimant was invited to the Surveillance and Vetting Unit of the 1st Defendant and the claimant made a statement on the 13thJuly 2017 on the allegation levied against him. They averred that the claimant was invited to appear before the Senior Staff Disciplinary Committee twice but did not honor the invitation.
The Claimant in his reply to the defendants’ statement of defence stated that he legally resigned on the said 14thJuly 2017 from the services of the 1stdefendant as his resignation was duly acknowledged and accepted by the Defendants, that no valid process of dismissal or discipline commenced by the defendants before his resignation. He stated that in view of the fact that he was no longer a staff of the 1stdefendant as at the 4thAugust 2017 when he answered the query, all his correspondences with the defendants were not on the letter headed paper of the 1stdefendant as a staff. That to buttress the fact that upon his resignation, the provost of College of Information and Communication Technology on the same day recommended immediate appointment of one Dr. Aliagan as the coordinator of the Department of Communication and the claimant was duly copied of the information, he noted that he was not personally served any letter of invitation by the defendant to appear before the disciplinary committee of the 4thdefendant and no valid disciplinary process ever commenced against him either when he was invited to the Surveillance and Vetting Unit or at any other time.
At trial, the claimant testified for himself, he adopted his depositions on oath dated 24thApril 2018 and 23rdMay 2018 respectively as his evidence in the case, he also tendered some documents which were admitted in evidence and marked Exhibits MB-MB19. During cross-examination, defence counsel also tendered Exhibit MB20. The defendants also testified through One Mubarak Y. Alli, he adopted his witness statement on oath dated 9thMay 2018 as his evidence in the case, he also sought to tender some documents which were admitted and marked by the Court as Exhibits MY and MY1 respectively.
Parties caused their final written addresses to be filed at the close of trial, the defendants filed theirs on the 20th November 2018 canvassing three (3) crucial issues for the determination of the Court, the Claimant also filed his on the 6thFebruary 2019 and submitted two (2) main issues for the Court’s determination; significant portions of which would be referred to in the course of writing this judgment.
I have had an in-depth examination of the processes filed by the parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of counsel, it is in view of this that I find the issues distilled by counsel as apt and rephrase the issues framed in the consideration of this suit thus:
Whether or not from the facts and circumstances of this case and in accordance with the condition of service of the 1stdefendant, the claimant could be adjudged to have validly resigned on the 14thJuly 2017 from the employ of the 1stdefendant?
If the answer to issue 1 above is in the positive, whether or not the claimant in the circumstances of this case and the extant position of the law can be subjected to any disciplinary action after resignation?
Whether or not the Claimant’s purported dismissal from the 1st defendant on the 27th October 2017 was unlawful?
It is trite law that employees have rights and responsibilities that are enforceable by law in accordance with their condition of service and such rights need to be protected. There is no disparity between the parties as to the nature of the employment relationship existent between the parties. Learned Claimant’s counsel in paragraph 4.2 of his written submission citing the case of Dr. Taiwo Oloruntoba-Oju & Ors v. Professor Shuaib O. AbdulRaheem [2009] 5-6 SC (Pt II) 57 @104 stated that the employment relationship between the claimant and the 1stdefendant is governed by the Kwara State University Law, which is the law establishing the 1stdefendant. Learned Defence Counsel did not in any way deny this. It is a settled principle of law that facts not disputed are taken as established and the Court can act on such facts; See the cases of Odebunmi & Anor v. Oladimeji & Ors [2012] LPELR-15419 (CA), Odulaja v. Hadded [1973] II S.C 35. It is also not in contention that the employment relationship between the claimant on one side and the defendants on the other side is one clothe with statutory flavor. See also the case of Bonum Nigeria Limited v. Chris Baywood Ibe & Anor [2019] LPELR-46442 (CA).
Regarding issue one, it is plain from the evidence before this Court that the Claimant was offered a letter of employment on a temporary status as a Lecturer1 on the 19th March 2013, and his appointment was subsequently regularized on the 18th November 2017 after the completion of the three (3) years’ probation, he was later on the 28th April 2016 promoted to the position of a Senior Lecturer (Exhibit MB). He was appointed as the Acting Head of the Department of Mass Communication vide a letter dated 4th November 2015 (Exhibit MB1). It is the testimony of the claimant by Paragraph 9 of his written deposition that he resigned his appointment with the 1st defendant effective on the 14th July 2017 vide Exhibit MB2 and he resolved to pay/refund three (3) months’ salary in lieu of notice in line with his contract of employment, which he did as disclosed in Exhibit MB6 and he wrote a letter dated 30th August 2017 to the 3rd defendant notifying him of the payment of the three months salaries in lieu of notice of resignation of appointment. It is also evident by Exhibits MB7 and MB8 that he refunded the salaries for July, August and September 2017 erroneously paid into his account as well as the unutilized TETFUND Conference grant, that it was after the acknowledgement of his resignation that the 1st defendant issued him queries (Exhibit MB9) to appear before a disciplinary panel for an allegation of sexual harassment, extortion and manipulation of results levied against him. The defendants on the other hand refuted the assertion of the claimant that he validly resigned his employment by contending that the purported letter of resignation was put on hold because the claimant did not fulfill the condition contingent to an effective resignation which is the payment of the three (3) month salary in lieu of notice at the time of tendering Exhibit MB2. That following a Complaint made against the Claimant on sexual harassment, extortion and manipulation of results on the 13th July 2017 by One Janet Oluwatobi by Exhibit MJ, he made a voluntary statement on the same day by Exhibit MB20, a day preceding his resignation debunking the allegations levied against him. In view of that he was issued queries to appear before the Senior Staff Disciplinary Committee which he failed to respond to. Learned Defence Counsel citing the Apex Court decision in Dr. Ben Chukwuma v. Shell Petroleum Development Company of Nigeria Limited [1993] 4 NWLR (Pt.289) 512 at 537, paragraphs F-G and continued that a combination of Exhibits MB6-MB7 show that the claimant paid the three months’ salaries in lieu of notice almost two(2) months after tendering the purported resignation which made his resignation ineffective because his failure to fulfill the condition precedent (i.e. simultaneous payment of three month salaries in lieu of notice as at the date of tendering the purported letter of resignation, learned counsel noted further that per adventure that the Claimant did not pay the said monies even between the 14th July 2017 when he tendered his resignation letter and the dates when he was invited to appear for an interaction with the Senior Staff Disciplinary Committee (SSDC) that is the 23rd August 2017 and the 29th August 2017 as evinced in Exhibit MB9, that the claimant was still no doubt in the employ of the 1st defendant. Learned Claimant Counsel contrary to this further argued in paragraph 4.5 of his written submission that from the portions of Exhibit MB2 quoted supra, there is no doubt the fact that the resignation of the claimant automatically takes effect from 14th July 2017, that he had indicated his willingness to pay three (3) months’ salary in lieu of notice which is without more incompliance with the terms and condition of service with the 1st defendant.
Now, the word resignation is commonly described as a situation where an employee no longer wishes or desires to continue in the services of his/her employee for any reason or no reason at all. It is a settled principle of law that every employee has the right to resign from his employment whenever he so desires. See the cases of University of Calabar Teaching Hospital &Anor v. Bassey [2008] LPELR-8553 (CA), Liman v. Access Bank [2014] 45 NLLR (146) 626 NIC, page 657, para E. It is conveyed by this latin maxim: Resignatio est juris propii spontanea refutatio.
The law is long settled and without any equivocation that resignation is effective in law immediately same is communicated to the employer, even when the employer does not expressly accept it. There is also no need for the employer to reply the letter of resignation before it becomes effective. It is ordinarily effective on the date the letter of resignation is received by the employer. In WAEC v. Oshionebo [2006] 12 NWLR (Pt.1994) 258 CA; the Court held that “A notice of resignation is effective not from the date of the letter: or from the date of any purported acceptance but from the date on which the letter was received by the employer or his agent. Tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying of his indebtedness to his employer…” see also the case of Adefemi v. Abegunde [2004] 15 NWLR (Pt.895) 1 CA; the Court of Appeal held that an employee has an absolute power to resign and the employer has no discretion to refuse to accept the notice, also that resignation takes effect from the date notice is received.. I equally find the decision of the South African cases of SACWU Obo Sithole v. Aforx Gas Equipment Factory (Pty) Ltd [2006] 6 BALR 592 [MEIBC] and African National Congress v. Municipal Manager, George Local Municipality & Ors [2010] 3 BLLR 221 (SCA) persuasive; wherein the South African Court, while considering a similar issue where an employee tenders a resignation letter and whether or not the acceptance or refusal of same can change the status of the contract? The Court reasoned and held that “resignation must be effective immediately or from specified date, and being a unilateral legal act, it does not need to be accepted by the intended recipient to be effected”. Similarly in the India case of Raj Kumar v. Union of India &Ors[1969] AIR , the Supreme Court of India held that: “When a public servant has invited by his letter of resignation determination of his employment, his service normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority..”
It is therefore obvious going by the clear position of law as pronounced upon by all the above case law authorities that upon the tendering of a resignation letter by an employee, the employer has no discretion to withhold same. The extant position of the law is that the resignation of a public officer takes effect when the writing signifying the resignation is received by the authority or person to whom it is addressed or by any person authorized by that authority or person to receive it in this case the Registrar who is the 3rd defendant in this suit. See Chief Akindele Ojo Sunday v. Oyedele Samuel Olugbenga & Ors [2008]LPELR-4995CA. In all it is clear that a letter of resignation becomes effective upon delivery, See the case of Eka v. Kuju [2013] LPELR-22124 (CA). It is plain from the fact of this case that the Claimant tendered his resignation letter (Exhibit MB2) to the 3rd defendant on the 14th July 2017 wherein he stated:
“I write to resign my appointment with Kwara State University as forthwith with effect from 14th July 2017 and be informed that I have resolved to refund three month salary in lieu of notice. In addition I will also refund unutilized 2015/2016 Tetfund Conference grant given to me by the University in the sum of N949,430.00 only..” (Underline mine for emphasis). It is also clear by exhibit MB16 that the 1st defendant received and acknowledged his letter of resignation. Claimant however under cross-examination admitted that he did not accompany his letter of resignation with the requisite three (3) months’ salary in lieu of notice; he however disclosed that he later paid it on 29th and 30th August, 2017, his testimony is substantiated by Exhibits MB7 and MB8. On the other hand, DW under cross examination did not controvert that the claimant did pay the 3months’ salary in lieu of notice but contended that the said payment was not paid in lump sum but in installments as opposed to payment simultaneously with resignation when Exhibit MB9 was issued. Now, what is the proprietary or otherwise of the nonpayment of the 3 Months’ salary in lieu of notice immediately upon resignation by the claimant, does it in any way change the effect of his resignation? In answering this questions I will like to capture paragraph 3 of exhibit MB dated 19/03/2013, 18/11/2014 and 28/04/2016 as they contain same term save for exhibit MB dated 28/04/2016 which added a few more wordings to the contract which states thus “the appointment may however be terminated at any time by three months’ notice on either side or payment of three months’ salary in lieu of notice, except in the case of teaching staff that shall terminate at the end of session. However, this policy exempts disciplinary termination.” It is clear from the above that either party to the contract may determine same either by given a notice of three months or payment of three months’ salary in lieu thereof. It is equally the law of common that parties are bound by the terms of their contract and same is enforceable, so long as both parties’ acts within the terms/confines of the contract, see the cases of BPS Construction & Engineering Co. Ltd v. FCDA [2017] LPELR-42516 SC, CBN v. Interstella Communication Ltd & Ors [2017] LPELR-43940 SC; AG Rivers State v. AG Akwa Ibom State [2011] NWLR (Pt. 1248) 31 at 81. It is also the law that Effective resignation/termination from employment is by giving the required length of notice or payment in lieu of notice and it must be made concurrent with the letter of resignation/termination. See the cases of Nigerian Society of Engineers v Mrs. Bimbo Ozah [2016] 64 NLLR (Pt. 225) 1; Jararu & Anor v. Usman & Ors [2008] LPELR-8591 (CA). It is clear from the above that the claimant resigned his employment with the 1st defendant on the 14th of July, 2017 with an intention to pay his salary in lieu of notice. Which he eventually did on the 29th and 30th of August, 2017 vide exhibit M8 which was admitted by the defendants vide paragraph 15 of his statement of defence. In the South African case of SA Music Rights Organisation v Mphatsoe [2009] 7 BLLR 696 (LC), the Court held that resignation is not invalid if the employee doesn’t give proper notice, it simply creates a breach of contract and as such an employer can hold the employee to the notice period. All it means is that the employee must work out the full notice required and if the employee doesn’t the employer can claim for damages. That is the extant position of the law. This is the position of the learned defence counsel put differently. To the learned defence counsel, claimant’s resignation is ineffective for lack of compliance with the payment of salary in lieu of notice simultaneously with his letter of resignation. Learned claimant’s counsel in his own reaction, submitted that the claimant effectively resigned from his employment on the 14th July, 2017, while regarding the issue of payment of salary in lieu of notice, he cited the case of Gerald Asogwa v. Zenith Bank PLC (Unreported Suit No. NICN/LA/37/2013, where in similar situation this Court held that the only remedy available for the defendant was in damages for payment of salary in lieu of notice, also cited in support is the case of Gboboh v. British Airways PLC [2017] All FWLR (PT. 908)1913. It is apparent from plethora of extant labour jurisprudence that the claimant having effectively resigned his appointment on the 14th July, 2017 cannot be said as the learned defence counsel posited, to be in the employ of the 1st defendant upon receipt of that letter by the defendants. He has since relinquished his position with the 1st defendant. This is in tandem with the position of the learned defence counsel in exhibit MB17. The only remedy available if any to the defendants in this instant is in damages for payment of 3 months’ salary in lieu of notice, and that the defendants on record have admitted and acknowledged payment by issuance of receipt. The acknowledgment and receipt of claimant’s salary in lieu of notice by the 1st defendant presupposes that the defendants have acquiesced and by implication accepted resignation. This is because the defendant did not at any time refund the three months’ salary in lieu of notice paid by the claimant, albeit after 14th of July, the date after he tendered the letter of resignation. It is noteworthy that the claimant equally returned the unutilized Tetfund conference sum issued to him, also the 1st defendant appointed one Dr. Aliagan as the coordinator of mass communication upon his resignation as stated by the claimant vide paragraph 49 of his statement of fact which was not specifically controverted by the defendants. Karibi Whyte JSC (as he then was) when considering an issue which is impair materia with this present held in the case of Moronhunfola v. Kwara Tech [1990] 4NWLR (Pt145) 506 SC thus-
Learned counsel to the respondents submitted quite rightly that it was averred in paragraph 2 of the defendant’s statement of defence, that appellant’s appointment was properly and validly terminated in accordance with the provisions of the regulations governing conditions of service of its senior staff. This regulation was tendered, admitted and marked Exhibit 2. Exh.2A, i.e. page 3 of Exh.2, prescribed the conditions for termination of appointment for conduct other than misconduct. It provides for the giving of three months’ notice, or three months’ salary in lieu of such notice. The provision applies to senior staff leaving the employment of the defendant. This evidence was part of the case of the appellant. He admitted he was paid three months’ salary in lieu of notice as provided in Exh.2A. Thus conceding for the purposes of this argument that appellant has a contract of employment with the defendant, that contract was validly and properly determined by appellant’s acceptance of its determination, i.e. the acceptance of the three months salary paid to him in lieu of notice. See Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 S.C. 374. If appellant had rejected the three months salary in lieu of notice, the unilateral repudiation of his contract of service with the defendant by the appellant would not have operated to determine the contract. See Olaniyan & Ors. v.University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599 at p.683. His conduct rendered the determination mutual.
See also the case of Benson v. Onitiri [1960] 5 FSC. 69; [1960] SCNLR 177; and Ekeagwu v. Nigerian Army[2010] 16 NWLR (PT. 1220)419SC. I find refuge in the reasoning of the apex Court in Morohunfola’s case supra and others cited above, which remains good law, and make a finding that the conduct of the 1st defendant by accepting the 3 months’ salary in lieu of notice paid to it by the claimant after his resignation from its service has rendered the determination mutual. It is in the light of all stated supra that I resolve issue one in favour of the claimant and hold that the claimant has effectively/validly resigned from the employment of the defendants on the 14th July, 2017. I so find and hold.
Respecting issue two, it is claimants claims two and three, that having resigned his appointment, he cannot be validly subjected to any invitation to appear before he Kwara State University Senior Staff Disciplinary Committee, headed by the 4thDefendant or any committee whatever set up and /or established by the 1st defendant for its staff and also that the invitation extended to the him by the 1st defendant Senior Staff Disciplinary Committee headed by the 4th defendant to appear before the said committee after his resignation from the services of the 1stdefendant is bizarre, illegal, unlawful and without any justification whatsoever. It is the grouse of the defendants that his dismissal was predicated upon Complaint made by one of his student, Janet Oluwatobi (Exhibit MY) and that upon being aware of the complaint he made a voluntary statement “Debunking Allegations against me” (Exhibit MB20) on the 13th July 2017 and subsequently a day after tendered his resignation letter. That he was issued a query on the 2nd of August which he answered on the 4th of August, 2017.He was also invited to appear before the Senior Staff Disciplinary Committee of the 1st defendant on the 23rd and 29th of August 2017 respectively (Exhibit MB9) and when he failed to utilize fair hearing accorded to him, the 1st defendant by the Report of the Senior Staff Disciplinary Committee (SSDC) to the Governing Council of the 1st defendant (Exhibit MY1) dismissed him on the 27th of October, 2017. The claimant in response to this stated that having tendered his resignation letter on the 14th July 2017 is no longer a staff of the 1st defendant and therefore cannot be subjected to any invitation by the defendant through the 4th defendant to face any disciplinary committee whatsoever and that this was vividly conveyed by his solicitors to the defendants vide exhibit MB10. It is obvious as seen vide the Court’s records that the claimant stated under cross examination that on the 13th of July, 2017 at the Sango Ilorin office of the defendants, he was met by the DSO Mr. Ambali who invited him orally to see him. That he went to see him on the 12/7/17 but DSO told him to see him on the 13/7/17. That on the said date, the DSO asked him some questions as regards the allegation of sexual harassment and also told him to put his response in writing which he did on the 13/7/17 and on the 14/7/2017 he resigned his appointment with 1st defendant. From the foregoing it is not in doubt that the claimant in this suit was in the know of the allegation levied against him by the defendants and hence severed his appointment with the 1st defendant. Now the question to answer is can the defendants discipline the claimant after he had resigned his employment? I have earlier held that the claimant on the 14th of July, 2017 resigned his appointment from the 1st defendant. This evince the fact that the claimant has left the services of the defendants and severed his employment relationship with them. If there is any breach at all, the effect of that breach lies in damages simpliciter[payment of salary in lieu of notice already paid and accepted by the 1st defendant]; and not to hold the claimant as its employee who can be called upon to answer to disciplinary procedures as it wishes. To hold otherwise will cause a great prejudice on the right of an employee in a contract of employment to exercise his right to terminate his employment at any given time and an employer cannot refuse it. The position of the law in the world of works as severally enunciated in ILO literatures is that when an employee tenders a resignation letter and an employer refuses it, it is tantamount to force labour, in other words the employee is forced to work against his will. It is therefore, without paradventure that I find that the claimant upon his resignation on the 14th of July, 2017 cannot be validly subjected to any disciplinary actions by the 1st defendant. It is in consequence that I hold that the invitation to appear before the 1st defendant and the subsequent invitation extended to him by the 1st defendant Senior Staff Disciplinary Committee headed by the 4th defendant to appear before the said committee after his resignation from the services of the 1st defendant is unlawful. Accordingly, all the letters of invitation are hereby set aside.
On issue two, it is the claimant’s claim that the purported letter of dismissal dated 27th day of October 2017 issued by the 1st defendant but served on him on the 31st day of October 2017 after he had resigned and during the pendency of this suit, when the originating process had already been served on the defendant is bizarre illegal, unlawful, without any justification whatsoever and is therefore null, void and of no effect whatsoever. It is the argument of Learned Defence Counsel that it is not in doubt that the claimant was issued a query dated 2nd August 2017 and he replied same as disclosed in Exhibit MB3, also that Exhibit MB9 clearly reveals that the claimant was aware of his invitation to appear before SSDC but failed to attend, that it is consequent upon the failure or refusal of the claimant to utilised the opportunity of fair hearing extended to him as disclosed in Exhibit MY and MB3, that the report of the SSDC recommended that he be summarily dismissed (ExhibitMY1), Counsel relying on the authorities of Ukachukuwu v. PDP [2014] 17 NWLR (Pt1435)134 at Pg 197-198, Pars G- C and Alhaji Auwalu Darma v. Eco-Bank Nigeria Limited [2017] LPELR-41663 (SC). He contended that there is a limitation to the extent to which fair hearing could be stretched for it is trite that where a person on his own volition failed to make use of the said opportunity, he or she cannot be heard of complaining that he is being denied fair hearing, he then submitted that the claimant was afforded and have failed to utilize the said opportunity by his failure to honor the invitation of SSDC (Exhibit MB9). Learned Claimant’s counsel on the other hand contended that the purported dismissal (Exhibit MB14) was grossly ineffective and liable to be set aside and moreso was issued during the pendency of this suit when originating processes had already been served on the defendants, Learned counsel noted further that the originating process in this suit was filed 25th October 2017 and served on the defendants on the 27th October 2017, the same day, the letter of dismissal is dated. He argued further that the defendant in paragraph 26 of their statement of defence made reference to the letter of Dismissal dated 27th October 2018 and not 27th October 2017 that moreover, the purported letter was served on him on the 31st October 2017. Citing the decision of Isaac Gaji & Ors v, Emmanuel O. Paye [2003] 5 SC at 63, he argued that the said letter of dismissal served on him is a tacit acceptance of those facts by the defendants. It is the further contention of Learned claimant counsel that the purported disciplinary proceeding upon which the dismissal of the claimant is hinged was not conducted in accordance with the law of the 1st defendant and extant regulation (Exhibit MB13), that the doctrine of fair hearing was not adhered to, he referred to the case of Dr. Taiwo Oloruntoba-Oju &Ors v. Professor Shuaib O. Abdulraheem & Ors supra and Section 16 of the Kwara State University Law 2008. He concluded that at the time of the purported disciplinary proceedings were held, the claimant was no longer the Defendant’s staff and thus the dismissal cannot be based on the proceedings of a committee which does not have power over ex-staff of the 1st Defendant’s University. Dismissal is the maximum punishment that can be given to an employee. It usually connotes the exercise by an employer of the right to terminate a contract of employment on account of misconduct on the part of the employee, where the employee is guilty of misconduct it presupposes that such misconduct is of grave and weight character, See the cases of Yaroe v. Nigeria Stock Exchange [2014] 46 NLLR (Pt 147) 45 NIC 146, pars C-E, Union Bank of Nigeria Plc v. Emmanual Olanrewaju Soares {2012] 11 NWLR (Pt3112) 550. The position of the law as it had always been, is still that an employment with statutory flavour can only be determined in strict complaince with the procedure relating to the dismissal of employment set out in rules and regulations applicable to the employment. See the cases of CBN v. Igwilo[2007] LPELR – 835 (SC), 14 NWLR (Pt. 1054) 393; and Longe v. First Bank of Nig. PLC (2010) LPELR – 1793 (SC), (2010) 6 NWLR (Pt. 1189) 1; amongst many others. A valid question that flows from the above stated is can the issue of fair hearing arise in this instant case when the claimant has determined his employment with the defendants vide his resignation? I have held supra that upon resignation claimant is no longer in the employment of the defendants and as such the purported disciplinary proceedings for which he was invited for are unlawful and void.
The next issue to resolve is that the claimant averred by paragraph 40 of his statement of fact that the defendants issued him with a dismissal letter dated 27th of October 2017 (barely two (2) days after he commenced this action in Court) but received by him on the 31st of October, 2017 through his email address. The defendant by paragraph 7.12 stated that the claimant has failed to prove that he received the letter on the 31st of October, 2017 and also failed to produce the print out of the said email to show the date and time it was received. It is right to state that it is the law that he who asserts must prove the facts of his assertion and it is equally trite that a letter is deemed communicated not on the date it is sent but when it is received and/or communicated to the recipient. From the record of this suit there is nothing evincing that the claimant has proven that he received exhibit MB14 on the 31st of October, 2017 as he wants the Court to believe as he failed to substantiate his assertion with credible evidence to that effect. It is on this basis that I discountenance with his argument in this regard and dismiss same.
Next, is the claimant’s contention that the originating process in this suit filed on the 25th October 2017 was served on the defendants on the 27th October 2017, the same day, the letter of dismissal was served on him should be declared unlawful. A cursory look at exhibit MB 14 reveals that the 1st defendant purportedly dismissed the claimant on the 27th of October, 2017 and it is also clear on the face of the documents before this Court that the claimant by an Originating summons filed this suit on the 25th of October, 2017. That is two days after this suit was instituted against the defendants by the claimant. It is on record of this Court specifically at page 95 of the case file by an affidavit of service deposed to by the Baliff of this Court, one Olomoda Ismaheel Akanji that he served on the 1st defendant the Originating processes on the 27th of October, 2017. The import of which is that the defendants had knowledge of the pendency of this suit before the issuance of the purported letter of dismissal. This is a clear case of medicine after death in that the 1st defendant cannot dismiss the claimant in this case when he had already left the services and relinquished his position from the 1st defendant as at the 14th of July, 2017. If I may ask, on whom was the letter of dismissal issued? Was it on the claimant or on his shadow? The answer of course is obviously No!. Apparently, the action of the defendants is contrary to the position of the law. It is in consequence of all stated that I find that the purported letter of dismissal seeking to dismiss the claimant is superfluous, unlawful and therefore set aside.
The claimant by relief’s v, vi and vii is seeking for an order of injunction restraining the defendants from taking any further step or action against him having effectively resigned his appointment. Having held that the claimant resignation is effective and valid, it then means that the defendants are estopped/restrained from taking any further steps or action against the claimant as the claimant is no longer in their employment or under their control. I so find and hold.
On the whole claimant’s claims succeed and for the avoidance of doubt I declare and order as follows;
That the claimant’s resignation from the defendants’ employment is effective and valid.
That defendants cannot subject the claimant to any disciplinary action after his resignation from the 1st Defendant vide his letter of resignation dated 14th July 2017.
That the invitation to appear before the 1st defendant committee after claimant’s resignation from the services of the 1stdefendant is unlawful and thus set aside.
That the purported letter of dismissal dated 27th day of October 2017 is unlawful and thus set aside.
That claimant’s claims v, vi and vii succeed.
I award the sum of N50,000 as cost against the defendants jointly and severally.
Judgment is accordingly entered
Hon. Justice. Oyebiola O. Oyewumi
Presiding Judge
