IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 24TH OCTOBER, 2019 SUIT NO:NICN/CA/17/2017
BETWEEN
DR AFOLABI O. OGUNDIPE—————- CLAIMANT
AND
CROSS RIVER UNIVERSITY OF TECHNOLOGY —- DEFENDANT
REPRESENTATIONS
- 1.EMMANUEL DAVID for the Claimant
- 2. NTA A. NTA Esq.for the Defendant
JUDGMENT
INTRODUCTION
This suit was instituted by the Claimant vide a General Form of Complaint dated 18th August, 2017 and filed same day.
The reliefs sought by the Claimant are as follows:
- A DECLARATION that the purported termination of the appointment of the Claimant as a senior lecturer, Faculty of Communication Technology in the service of the Defendant by letter dated 31st of October, 2016 is ultra vires, unlawful, null and void having regards to the terms of the Claimant’s appointment with the Defendant, the regulation governing conditions of service for senior staff and the provision of Cross River University of Technology law Cap C9 Laws of Cross River State.
- A DECLARATION that the purported termination of appointment is also unconstitutional, null and void for being in breach of the rule of natural justice and non-compliance with the laid down statutory procedure for termination of appointment of confirmed staff of the University.
- The sum of N964, 685.22 being outstanding salary unpaid from January to March 2017 at N321, 561.74 per month.
- The sum of N38, 587,408.8 being damages for breach of contract.
- The sum of N11, 232,938.88 being gratuity and retirement benefit due to the Claimant for more than 28 years of active service to the Defendant.
- N1 million cost of litigation.
SUMMARY OF FACTS
The Claimant, as can be gleaned from his Statement of Facts, was an employee of the Defendant. On the 9th of January, 2017, he was served with a letter of retraction of appointment dated 31st of October, 2016 which was to take effect from the 1st of December, 2016. Prior to the service of the letter of retraction upon him, the Claimant was still discharging his duties to the Defendant and he was not given any notice containing reasons and facts in support of the retraction of his service. The Claimant objected to the constitution of the Disciplinary Committee handling the interrogation and investigation of the offences levelled against him but despite his objection, the committee went ahead with the probe as constituted. Following the Committees’ report, the Claimant’s appointment was retracted hence this suit.
On their part, the Defendant averred in its amended Statement of Defence that the Claimant ceased to be a staff of the Defendant on the 1st of December 2016 by virtue of the letter dated same day. Consequently, it does not owe the Claimant any unpaid salaries. That the grounds for retraction of the Claimant’s appointment (which is extortion of money from students) is contained in the letter of retraction of service dated 31st of October, 2016 and not in any way contrary to the terms stipulated in the conditions of service.
Defendant urged the Court to dismiss the suit for being frivolous and vexatious.
COMMENCEMENT OF HEARING
Hearing in this suit commenced on 21stof February, 2018 whereby the Claimant opened his case with Claimant testifying as CW1. Claimant adopted his witness statement on oath dated 18th September, 2017, identified and tendered documents which were admitted as exhibits. He was cross examined. Thereafter, Claimant closed his case on 16th October, 2018.
On their part, the Defendant opened their defence on the 19th of February, 2019 by calling one Gladys Ngwu as DW1. She adopted her witness statement on oath and tendered documents admitted in evidence as Exhibits. She was cross examined and re-examined. Thereafter, the Defendants closed their defence on the 19th of February, 2019.
At the end of hearing, parties filed, exchanged and adopted their final written addresses.
DEFENDANT’S FINAL WRITTEN ADDRESS.
In the Defendant’s final written address dated 9th of April, 2019 and filed same day, Counsel on behalf of the Defendant formulated three (3) issues for determination to wit:
- Whether in a claim for declaratory relief, the Claimant will not succeed solely based on the extent to which he is able to prove his case.
- Whether a party who is in breach of a contract can still turn around to derive benefits from the same.
iii. Whether the claims as constituted in this suit have been proved
ARGUMENT
ON ISSUE 1: Whether in a claim for declaratory relief, the Claimant will not succeed solely based on the extent to which he is able to prove his case
It is the argument of the Defendant’s Counsel that a Claimant can only succeed in its case based on the strength of his case and not the weakness of the Defendant’s case. He referred Court to the case of Faleye V. Dada (2018) 7 WRN 32. That the Claimant failed to lead credible evidence to prove that the termination of his appointment was unlawful.
Counsel to the Defendant further submitted that the Claimant cannot choose the members of the disciplinary committee, thus his objection that Professor Joy Etiowa the Head of Department/ acting Dean of the Faculty of Communication Technology should not be a member of the disciplinary committee is unfounded as the Claimant has no right to choose membership of the said committee. Hence there was no breach regarding the constitution of the committee.
ON ISSUE 2: Whether a party who is in breach of a contract can still turn around to derive benefits from the same
Counsel to the Defendant submitted that the duty of the Claimant to work for the Defendant is subject to good conduct and compliance with the terms of employment by the Claimant. He referred the Court to the case of Nwobosi V. ACB Ltd (1995) 6 NWLR (Pt. 404) 658 where the Apex Court held that:
Wilful disobedience to the lawful and reasonable order of the master justifies summary dismissal. Misconduct inconsistent with the due and faithful discharge by the servants of the duty which he was engaged is good cause for dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.
Counsel submitted that the act of extortion of money from students was enough justification for dismissal.
ON ISSUE 3: Whether the claims as constituted in this suit have been proved
Counsel to the Defendant submitted that damages must be pleaded and specifically proved before it can succeed. He relied on Seven Up Bottling Company Co Ltd V. ADEWLAE (2004) NWLR (Pt. 862). He further submitted that the Claimant has failed to prove claim 3 to 6 based on the fact that the Claimant’s appointment was lawfully retracted.
Counsel urged the Court to hold that reliefs in claim 3, 4, 5 and 6 have not been credibly proved.
He urged the Court to dismiss this suit for being irrelevant, frivolous and vexatious.
CLAIMANT’S FINAL WRITTEN ADDRESS.
In the Claimant’s final written address dated 7th of June, 2019 and filed same day, Counsel on behalf of the Claimant formulated two (2) issues for determination to wit:
- Whether from the evidence attached in this case and the statutory regulations made to govern the procedure for employment and discipline of an employee the Claimant has proved his case and therefore entitled to his claims in the complaint.
- Whether in circumstance of the statutory regulations made to govern the procedure for employment and discipline of an employee, the Defendant’s evidence can form a defence to the client’s claim.
ARGUMENT
ON ISSUE 1: Whether from the evidence attached in this case and the statutory regulations made to govern the procedure for employment and discipline of an employee the Claimant has proved his case and therefore entitled to his claims in the complaint.
Learned Counsel to the Claimant submitted that the law is that when an aggrieved person is suing for wrongful dismissal whether it has statutory flavour or mere master and servant relationship, the conditions of service must be pleaded and proved. He relied on the case of Modu Aji V. Chad Basin Development Authority & anor (2015) 61 (Pt. 3) NSCQR 1817 at pp. 1848-1849. That in an employment that enjoys statutory flavour, termination of such employment must be done in adherence to the conditions spelt out in the prescribed statute; anything contrary to the procedure provided in the statute is null and void. He relied on the case of Kwara State Poly V. Saliu (2012) 41 WRN 26. Learned Counsel submitted that the conditions of service was tendered and non-adherence to the laid down procedure amounts to unlawful termination of the employment of the Claimant which to that extent is null and void.
COURT
Having gone through the Claimant’s Claim, Defendant’s Defence, exhibits tendered before this Honourable Court and final written submissions of both Counsel, this Court has distilled a sole issue for the just determination of this suit, to wit:
Whether the Claimant has proved his case to be entitled to the reliefs sought.
The claim of the Claimant is that the termination of his employment is unlawful being that the purported termination was not done in compliance with the laid down procedures in the conditions of service regulating his employment. The Claimants contends that:
- His employment was terminated without the required one month’s notice or one month salary in lieu of notice as required by the conditions of service;
- The Defendant failed to pay his salary for the month of December despite having duly discharged his duties to the Defendant;
- The constitution of the disciplinary committee that investigated the allegations levelled against him was in breach of natural justice.;
- He was not served any notice giving reasons for the retraction of his service; a prerequisite provided for in the conditions of service before lawfully terminating an appointment;
- The termination of service before the agreed time is contrary to the terms of engagement.
It is settled law that an employment is said to have statutory flavour when such appointment and termination is regulated by statutory provisions. See Auchi Poly V. Okuoghae (2005) 10 NWLR (Pt. 933) 279. An employment coated with statutory flavour must be terminated with strict adherence to the procedure prescribed by the relevant statute and any other procedure inconsistent with the statute will be null and void. See Ibama V. SPDC (Nig) Ltd 2005 17 NWLR (PT 954) at 364
In determining whether a termination of appointment is wrongful or otherwise, recourse is made to the statute regulating such appointment or termination ( in this case, the Cross River University of Technology, Calabar Staff Handbook and Conditions of Service for Senior Staff subsequently referred to as the handbook)
Section 4.10.0 of the handbook provides thus:
4.10.1. Council shall order the termination of appointment of a staff on account of proven misconduct and for general inefficiency: provided that no staff shall be terminated until he has been served with a month’s notice or paid a month’s salary in lieu thereof.
4.10.2 – no member of staff shall have his appointment terminated until:
- He has been informed in writing the grounds for which his appointment is to be terminated.
- He has been given the opportunity to explain why his appointment would not be terminated and
iii. His representations have been considered by the Council as provided in sub-section 4.4.3 above.
In this instant case, the appointment of the Claimant was terminated by a letter dated 31st of October, 2016 which was to take effect from the 1st of December, 2016. From the pleadings of both parties, it can be deduced that the Claimant was served a letter of query requiring him to make representations in defence to the alleged offence of extortion levelled against him. This letter is dated 23rd June 2016 and marked as exhibit D3. In the said letter, it was alleged that the Claimant was being queried for allegedly extorting money from students. Section 4.1.3 of the handbook categorises extortion as a gross offence. Furthermore, section 4.5.1. Provides the disciplinary measures for gross offences to wit:
- termination of appointment
- compulsory retirement
- dismissal
The major bone of contention in this case therefore is whether the procedure which led to the termination of the Claimant was in accordance to the procedures laid down in the handbook.
From the pleadings of both parties, it can be deduced that the Claimant was an employee of the Defendant and his employment was one which enjoys statutory flavour. The Claimant vide a query letter dated 23rd of June 2016 was alleged to have been extorting monies from students with respect to course GST 1101 (Use of English) whereby the Claimant appointed one Ebuta Divine as his agent. He was thereafter requested to make representation as to why disciplinary action should not be taken up against him.
From all that have been said above, it is clear that the Claimant was given an opportunity to make representations in his defence. This ordinarily would amount to fair hearing. However, the Claimant contended that he was not given fair hearing. According to the Claimant, one Professor Joy Etiowo sat in the disciplinary committee despite his objections against that. This to the Claimant is against the principle of natural justice, hence his claim of being deprived of fair hearing. To determine this issue, the Court examined the Pleadings of both parties in the suit. While the Claimant contended that Professor Joy Etiowo sat at the disciplinary committee, the Defendant on the other hand claimed that Professor Joy Etiowo is a member of the disciplinary council however, she wasn’t a member of any of the two committees that investigated the allegations against the Claimant. The Claimant in its reply averred that he did not appear before two committees, that the said Professor was a member of the disciplinary committee and governing council. In proof of this averment, he referred the Court to paragraph 10 of the written witness statement on oath of one Mrs Gladys Ngwu (the defence witness)
Paragraph 10 of the Defendant’s witness statement on oath states thus:
I know as a fact that the two different committees that investigated the allegations against the Claimant were Management Disciplinary Committee chaired by prof. Louis Etim Attah and Council Disciplinary Committee chaired by Chief Inah. I can identify excerpt of the report of the investigation of the senior staff disciplinary committee of the Defendant if same is shown to me.
This to my mind is not proof that Professor Joy Etiowo was at that time both member of the disciplinary committee or governing council nor did it prove that the Claimant did not appear before two committees as claimed by him. If anything, it only supported the claim of the Defendant. It is trite that in civil cases, the onus of proof is always on the party who asserts and he has to prove his case with credible and cogent evidence, where a party fails to discharge the burden, he cannot be entitled to his claims. See Obiazikwor V. Obiazikwor (2008) 8 NWLR (Pt. 1090) 551 . In the absence of credible evidence to prove that Professor Joy Etiowo sat in the disciplinary committee that investigated the allegations against the Claimant despite his objections the Court is hard put to hold that Claimant was not afforded fair hearing.
On the requirement to give one month notice or one month salary in lieu of notice, the Court has observed from the pleadings that the letter terminating the employment of the Claimant was dated 31st of October 2016 to take effect on the 1st of December 2016. However the Claimant did not get the letter until the 9th of January, 2017. I must say at this juncture that time begins to run from the date the Claimant received the letter, hence the letter could not have been activated before its receipt by the Claimant. For the avoidance of doubt, it is the opinion of this Court that the termination of the employment of the Claimant couldn’t have taken effect on the 1st of December 2016 for reasons stated above. Rather, the termination took effect on the 9th of January 2017 when the Claimant got the letter. The Defendant has alleged that the Claimant evaded service of the letter. However, in the absence of credible evidence to prove this allegation, it is the opinion of the Court that the Claimant received the letter and became notified of the termination of his employment on the 9th of January 2017. Thus it is the view of this Court that the Claimant rightfully discharged his duties to the Defendant in the month of December 2016 and therefore entitled to salary for the said month.
Furthermore, the Court observed that even though the Claimant was not given the statutory one month’s notice, a bank draft of the sum of Three Hundred and Twenty One Thousand Five Hundred and Sixty One Naira Seventy Four Kobo (N321,561.74) was attached to the letter of retraction which the Claimant cashed. This money serves as the one month salary in lieu of notice as provided in section 4.10.1 of the handbook. To put it clearly, in the absence of one month notice, the Claimant was paid one month salary in lieu of notice. This is a step in the right direction as it is trite that the damages available to an employee whose employment was terminated without notice is the amount payable to him on the period of notice required and other benefits accruable within that period.See the case of Chukwuma V. Shell Petroleum Development Co. of Nig. Ltd (1993) 4 NWLR (Pt. 289) 512 where the Court held that:
In my respectful view, where a contract of service give a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of the termination of the contract…
Furthermore, from the facts of the case herein, there is still an unpaid salary of one month which is for the month of December, 2016. It must be noted that the Defendant expended too much energy in a bid to show that it was not in session in December thus the Claimant could not have worked in the said month and therefore not entitled to salary. On the other hand, the Claimant averred that he was still working and discharging its duties to the Defendant in December 2016. I must say that the position of the Defendant is wrong. The general principle is that it is the duty of the employer to provide work for the employee. The Claimant’s employment being one which enjoyed statutory flavor and unlike an employment that is based on commission, is entitled to his monthly salary notwithstanding whether or not there was work for him to do. In this vein, the Claimant is entitled to salary for the month of December, 2016, and I so hold.
On the issue of failure of Defendant to give reasons for retraction of service, this Court is minded to state that the query letter dated 23rd June 2016 spelt out the alleged offence and the letter of retraction of service dated 31st of October 2016 also stated the reasons for the retraction of his service. To my mind, this is adequate compliance with section 4.10.2. (ii) of the handbook, and I so hold.
The Claimant in his pleadings also contended that by virtue of his age and years of service he is entitled to 10 more years to serve the Defendant. It is pertinent to state that where an employee has conducted himself in a manner contrary to terms in the conditions of service, the employer is entitled to terminate such employment in accordance with the laid down procedure in the conditions of service. See the case of Edet V. Chief of Army Staff (1994) 2 NWLR (Pt. 324) 41. Every employee is expected to obey lawful and reasonable orders of the employer in default of which the contractual relationship cannot be expected to continue, and I so hold.
For all that have been said above, this Court upholds the retraction of service of the Claimant’s employment by the Defendant same being done in accordance with the laid down procedure in its handbook.
Consequently, the case of the Clamant is determined as follows:
CLAIM 1 Fails
CLAIM 2 Fails
CLAIM 3 Succeeds only to the extent that the Defendant shall pay the Claimant the salary for the month of December, 2016.
CLAIM 4 Fails
CLAIM 5 Succeeds to the extent that the Claimant shall be paid all his gratuity and benefits owed him by the Defendant.
CLAIM 6 Succeeds only to the extent that the Court awards the sum of N100,000.00 (One Hundred Thousand Naira) only as cost against the Defendant.
Judgment is entered accordingly.
…………………………………
HON. JUSTICE M.N ESOWE
