ENGINEER MOSES ABARSHI -VS- AHMADU BELLO UNIVERSITY, ZARIA

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 13^TH DAY OF NOVEMBER, 2019

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

SUIT NO: NICN/ABJ/105/2015

BETWEEN:

ENGINEER MOSES ABARSHI……….…………CLAIMANT

AND

AHMADU BELLO UNIVERSITY, ZARIA
THE VICE CHANCELLOR, AHMADU

BELLO UNIVERSITY ………………………….DEFENDANTS

J U D G E M E N T

This suit was initially commenced by the Claimant at the Federal High Court, Kaduna on 10/02/2011. It was later transferred to this Court and upon being transferred; the Claimant filed a Writ of Summons and Statement of Claim on 21/06/2017, reflecting the name of this Court and whereby he claimed against the Defendants the reliefs set out as follows:

a)A Declaration that the Plaintiff’s purported dismissal from the service of the Defendant is null and void, illegal, unconstitutional and unwarranted.
b)An Order reinstating the Plaintiff to his rank of Director, Physical and Municipal Services of the 1^st Defendant to accord him all the rights and privileges that accrues to the Office.
c)An Order directing the Defendants to pay the Plaintiff all his salaries and entitlements from 10/11/2010 to (sic) when judgement is delivered in this case.
d)Perpetual Injunction restraining the Defendants or any of its privies from using or relying on the Report of the Senior Staff Disciplinary Committee against the Plaintiff in any form whatever and however.
e)10% (Ten per cent) post judgement interest till the entire judgement sum is fully liquidated.
The summary of the Claimant’s case by hisAmended Witness Statement on Oathfiled on 05/03/2019 is that he was employed as the Director, Physical Planning and Municipal Services in the Estate Department of the 1^st Defendant on 10/05/2007. His employment was for an initial period of three years and thereafter till the retirement age of 60 years if his appointment is confirmed. His schedule of duties includes overseeing the execution of all capital and administrative projects executed by and on behalf of the 1^st Defendant.
The Claimant was however dismissed for gross misconduct and dereliction of duty in connection with the supply and installation of the 800 KVA generating set installed in one of the 1^stDefendant’s campuses.

All efforts by the Claimant to appeal against his purported dismissal, including writing of letters of appeal to the Defendants, did not yield any positive results; hence the institution of the instant action.

The Defendants denied the Claimant’s claim by filingJoint Statement of Defenceon 11/07/2017. The Defendants contended, in summary, that it complied with all the applicable laws and regulations with respect to the investigation of the supply and the installation of the generator and that due process was observed in dismissing the Claimant from its services.
At the plenary trial, the Claimant testified in person. He adopted hisStatement on Oathas his evidence-in-chief and tendered in evidence a total of seven (7) sets of documents as exhibits. He was thereafter cross-examined by the Defendants’ learned counsel.

Although the Defendants filed a Joint Statement of Defendant and the Witness Deposition on Oath of their sole witness, they however elected to rest their case on that of the Claimant’s.

Thereafter, parties filed and exchanged their written final addresses.

In the address filed on behalf of the Claimant on 15/07/2017, and settled by R. O. Atabo, Esq., of counsel for the Claimant, a sole issue was canvassed as having arisen for determination in this suit, that is:

“Having regards to the circumstances surrounding the dismissal of the Claimant from the services of the Defendants and the fact that the Defendant did not call evidence in support of their pleading or adopt their Witness Statement on Oath, whether the Claimant has proved his case on the balance of probabilities as required in the civil proceeding to be entitled to his reliefs as endorsed on the Writ of Summons and Statement of Claim.”

The sole issue formulated as having arisen for determination in this suit in the final address filed on behalf of the Defendants on 27/02/2018, by their learned counsel, Abdulhafees D. Khalid, Esq., is:

“Whether the Claimant has been able to prove his case to be entitled to the reliefs sought?”

Upon proper examination of the pleadings filed in this suit; the totality of the evidence led on the record, including the documents tendered, my view is that the critical issue germane for determination in this suit, without prejudice to the issues formulated by learned counsel, could be reframed broadly as follows:

Whether the Claimant clearly established that the dismissal of his appointment from the employment of the 1^st Defendant was unlawful to entitle him to the reliefs he sought in this suit.

In proceeding to determine this issue, I have also carefully considered and taken benefits of the arguments canvassed by the respective learned counsel in their final addresses and whenever I deem it necessary in the course of this judgment, I shall endeavour to make specific reference to their submissions.

By my understanding of the totality of the case of the Claimant, it seems to me that the basic, essential and relevant facts upon which the Claimant has predicated his claim could be enumerated as follows:
That there existed an employer – employee relationship between the Claimant and the 1st Defendant, whereby the Claimant was employed as Director, Physical Planning and Municipal Services on 10/05/2007;
That his appointment was governed by the University Statute and the Senior Staff Regulations;
That upon a complaint by the Audit Department of the 1^st Defendant on the supply and installation of the 800 KVA generating set to one of the campuses of the 1^st Defendant, a five – man Committee was set up to investigate the complaint;
That as a result of the finding of the Committee , he received a query dated 11/03/2010 and that he promptly replied the query on 12/03/2010
That he received two letters dated 02/08/2010 and 01/11/2010 inviting him to appear before the Senior Staff Disciplinary Committee and that he appeared before the said Committee;
That the Committee concluded its proceedings and made its finding to the Council;
That Council wrote a letter purporting to dismiss him on allegations of gross misconduct and dereliction of duty;
That the Council did not give him opportunity to present his defence and his right to fair hearing was violated;
That he wrote two letters dated 18/11/2010 and 16/12/2010 to appeal against his purported dismissal but the Defendants maintained their position in their reply dated 20/01/2016
To further support his case, the Claimant tendered in evidence, the following documents:
Letter of appointment dated 10^th May, 2007 – Exhibit C1.
Query dated 11^th March, 2010 – Exhibit C5.

iii. Reply to Query dated 12^th May, 2010 – Exhibit C4.

Letter of dismissal from service dated 10^th November, 2010 – Exhibit C2.
Letters of Appeal against Dismissal from service dated 18/11/2010 and 16/11/2010 as Exhibit C6 and Exhibit C6A.
Defendant’s reply on appeal dated 28^th January, 2011 – Exhibit C3.
As I had earlier stated, the Defendants had filed a Joint Statement of Defence wherein they denied the entirety of the Claimant’s claim but they did not call any witness nor tendered any document in defence. The law is that facts averred to in pleadings must be substantiated by evidence and in the absence of such evidence, the averments are deemed abandoned. See:U.B.N Plc Vs Astra Builders (W.A. Ltd)[2010] 5 NWLR (Pt 1186) 1; Skye Bank Plc Vs Akinpelu [2010] 9 NWLR (Pt 1198) 179; Aregbesola Vs Oyinlola [2011] 9 NWLR (Pt 1253) 458; Admin/Exec; Estate, Abacha Vs Eke-Spiff [2009] 7 NWLR (Pt 1139) 97.
As correctly submitted by the learned Counsel for the Claimant,it is the law that where a Defendant does not adduce evidence, as in the instant case, the evidence before the Court goes one way leaving the Court with no other evidence or set of facts with which to do the measuring of the scale. This is because in a situation where a Defendant leads no evidence in proof of the facts pleaded by him, such pleading is deemed abandoned and the Defendant would be left with nothing with which to present against the Claimant. Thus, in a situation where a Defendant abandons his pleading and rests his case on the Claimant’s evidence, he is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the Claimant. In such a situation as in the instant case, it may mean that:

(a) The Defendant is stating that the Claimant has not made out any case for the Defendant to controvert or respond to; or

(b) He admits the facts of the case as presented by the Claimant; or

Now, it is an elementary principle of law that the onus is on the Claimant who is alleging unlawful termination or dismissal of employment to prove it. To discharge this burden the Claimant must plead and prove the following:
That he or she is an employee of the Defendant;
Place before the Court the terms of his or her employment and the terms and conditions of the employment;
State the authority for appointment and removal;
The circumstances by which the employment can be determined;
The manner the said terms of the employment were breached by the employer.

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

I am particularly mindful that the Claimant has sought declaratory relief in this suit; the implication being that the burden for him to prove the allegations leveled against the Defendant exceeds the regular burden provided inSections 131 and 132 of the Evidence Act 2011.

The settled position of the law, from time immemorial, as correctly submitted by the learned counsel for the Defendants is that even though the power to make a binding declaration of right is discretionary in nature; however a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right he seeks from the Court. An exception to the rule of pleadings that what has been admitted requires no further proof is that a declaratory relief cannot be granted without evidence; and it is not granted based merely on default of defence or on admission by the adverse party. See the authorities of Dumez Nigeria Limited Vs Nwakhoba [2009] All FWLR (Pt. 461) 842; Ogolo Vs Ogolo [2006] All FWLR (Pt. 313) 1; Motunwase Vs Sorungbe [1988] 5 NWLR (Pt. 92) 90; Kwajaffa Vs B. O. N. Limited [2004] 13 NWLR (Pt. 889) 146; Ndayako Vs Dantoro [2004] 13 NWLR (Pt. 889) 187; Olabanji Vs Omokewu [1992] 7 SCNJ 266.

The task that the Court is to undertake now, in the first instance, is to examine the evidence led on the record by the Claimant in order to determine whether or not he has satisfactorily established his entitlement to the declaratory relief and other reliefs claimed.

Parties are ad idem on the facts that the Claimant was an employee of the 1^st Defendant before his employment was dismissed by the Defendants.

In challenging the dismissal of his employment by the Defendants, the Claimant contended that he was never given an opportunity to hear the testimonies of the witnesses invited by the Committee and that he was denied the opportunity to defend himself at the Senior Staff Disciplinary Committee. The Claimant further contended that the Council did not follow the procedure for discipline (dismissal) of its members of staff as stipulated by the Statute and the Regulations of the Defendant. He further alleged that the Council violated his right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended).

To establish that a contract of employment existed between the Claimant and the Defendants, the Claimant tendered in evidence his letter of appointment, Exhibit C1.

In view of its crucial relevance to the determination of the issue at hand, I have taken liberty to reproduce the relevant portions of Exhibit C1 relating to the terms and conditions of the Claimant’s appointment.

Paragraph 2 of Exhibit C1 states that:

“The appointment is subject to the provisions of the University Laws, Statutes and Ordinances made thereunder and to regulations governing the Conditions of Appointment of the Senior Staff made by the University Council from time to time. A copy of the current Regulations (referred to in this letter as “The Regulations”) is enclosed.”

It is further stated in Paragraph 6 of Exhibit C1 as follows:

“The commencement and termination of the appointment will be governed by the provisions of Section 3 of the Regulations. The appointment will be a period of three years in the first instance after which it will be to the retiring age of 60 if it is confirmed. If the appointment is not confirmed at the end of the period, it will be terminated by three months’ notice or payment in lieu. However, the University reserves the right to terminate an appointment without due notice for any good cause.”

By the above terms, it is clear that the employment is regulated by the University Laws, Statutes and Ordinances particularly, the Regulations governing the Conditions of Appointment of Senior Staff. Exhibit C1 further gives the 1^st Defendant the right to terminate the employment if the appointment is not confirmed after a period of three years. The Defendant also reserves the right to terminate the appointment without due notice for any good cause. Again, the Claimant reiterated in Paragraph 3 of his Witness Deposition on Oath the fact that his employment is governed by Statute and the University Regulations.

Now, has the Claimant established that his dismissal by the Defendants was unlawful? Or to put it differently, has the Claimant placed before the Court the terms and conditions of his contract of employment to prove in what manner the terms and conditions were breached by the Defendants?

As the learned Defendants’ counsel had rightly submitted, the Claimant failed to tender in evidence the Senior Staff Regulations regulating his contract of employment. It is settled that the contract/conditions of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. The Courts have been enjoined not to look outside the terms stipulated or agreed by parties in deciding the rights and obligations of parties.

The learned counsel for the Claimant had strenuously tried to convince the Court that the procedure adopted by the Defendants in disciplining the Claimant was faulty and illegal. It is apt to restate the settled position of law that the address of counsel is no more than a handmaid in adjudication and cannot take the place of credible evidence. No amount of brilliance in a final address can make up for lack of evidence to prove and establish or to disprove and demolish points in issue. See:Iroegbu Vs MC Calabar Carrier[2008] 5 NWLR (Pt 1079) 147; Angadi Vs PDP & Ors [2018] LPELR 44375

The Conditions of Appointment of Senior Staff Regulations states the procedures for disciplinary actions of the 1^st Defendant. It is a very vital document to prove in what manner the Defendants breached the terms of the Claimant’s employment.

The learned counsel for the Claimant had further argued that failure of the Defendant to tender the report of the Committee is fatal to the Defendants’ case. I do not agree with the legal submission of learned Claimant’s counsel in this regard. It is trite that the duty to prove the wrongfulness or nullity of the summary dismissal rests with the Claimant, not the Defendant. See Ziideel Vs RSCSC [2007] 3 NWLR (Pt. 1022) 554 SC, Morohunfolu Vs Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, Ningi Vs FBN Plc [1996] 3 NWLR (Pt. 435) 220, Katto Vs CBN [1999] 6 NWLR (Pt. 607) 390 SC.

Failure of the Claimant to tender in evidence the Conditions of Appointment of Senior Staff Regulations and the report of the Senior Staff Committee which were pleaded is fatal to the Claimant’s case. I so hold.

The Claimant also admitted inparagraph 6 of his Statement of Claim (Facts)that his employment was for an initial period of three years after which it will be to the retirement age of 60 years if is confirmed. A correct interpretation of the letter of appointment tendered in evidence as Exhibit C1, will determine the question of whether or not the Claimant is entitled to the reliefs sought.

While answering questions under cross examination, the Claimant testified as follows:

“I was employed on 10/05/2007 as contained in Exhibit C1. I was just about 4 years when I was dismissed. It was stated in Exhibit C1 that the employment was in the first instance for three years. It is correct that I was queried within the three years. My appointment was never confirmed.”

Furthermore, there is no evidence on record to support the Claimant’s averments in paragraphs 7 and 8 of the Statement of Claim (Facts) that he wrote a request to renew his contract when his initial contract expired and that he continued with his lawful duties while waiting for the Defendant’s reply to his request.

It is evident from the content of Exhibit C1 that if at the end of three years no re-appointment is offered and accepted, that will be the end of the appointment. Having admitted that his appointment was not confirmed and that he was queried within the three years of his appointment (as reflected by the date on Exhibit C5), I find and hold that the Claimant was on probation as at the time his appointment was terminated by the Defendants.

The International Student’s Edition of the Oxford Advanced Learner’s Dictionary at page 1167defines probation inter – alia as:

“2. a time of training and testing when you start a new job to see if you are suitable for the work.”

Similarly, the Tenth Edition of the Black’s Law Dictionary at page 639 says of a “probationary employee” as:

“A recently hired employee, whose ability and performance are being evaluated during a trial period of employment.”

In other words, any period of testing, evaluation or trial period of employment is grammatically a probation period in the employment. See also Dr. Ajewunmi Bili Raji Vs Obafemi Awolowo University [2014] LPELR 2088.

What then is the position of the law on probationary appointment?

It has been held in a plethora of cases that where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, the employer reserves the right and discretion to determine the employment before the expiration of that period. See Ihezukwu Vs University of Jos [1990] 4 NWLR (Pt 146) Pg 598; Lake Chad Research Institute Vs Mallam Kolo Mohammed [2004] LPELR 5796

As a probationary employee, the Claimant did not enjoy all the rights and privileges of an employee within the confines of a statutory employment of the 1^st Defendant. The Defendants reserve the right to determine the Claimant’s appointment and have rightly exercised this right when the Claimant’s appointment was dismissed. And I so hold.

Perhaps it is apt to address the issue of breach of his right of fair hearing as alleged by the Claimant. It is settled law that the principle of fair hearing is one of substance and not a mere technical rule. Hence, when the issue of fair hearing is alleged as in the instant case, the question is whether a party who is entitled to fair hearing and who is desirous of being heard before his fate is decided, had in fact been given ample and adequate opportunity of being heard as provided under the applicable rules of Court. See Ahmad V Sahab Enterprises (Nig) Ltd & Ors[2016] LPELR 41313 and Oloruntoba – Oju Vs AG Federation [2016] LPELR 41250.

I am of the view that without placing the Senior Staff Conditions of Service of the 1^st Defendant before the Court, the Claimant’s testimony challenging the qualification of the members of Senior Staff Disciplinary Committee, the violation his right to fair hearing and the allegation that the Defendant did not comply with due process is unfounded and is lacking in merit. I so hold.

In totality, the Claimant has woefully failed to discharge the burden to entitle him to his declaratory claim, reinstatement, salaries and other entitlements and perpetual injunction. Therefore, I find and hold that the Claimant is not entitled to all the reliefs claimed.

On the basis of the foregoing analysis therefore, I resolve the issues against the Claimant. I further hold that this case is lacking in merit. The Claimant’s case fails in its entirety and is hereby accordingly dismissed.

I make no order as to cost.

SINMISOLA O. ADENIYI

(Presiding Judge)

13/11/2019

Legal representation: