SAMUEL JATAU -VS- AHMADU BELLO UNIVERSITY, ZARIA & 4 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON MONDAY 27TH DAY OF JANUARY, 2020

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

SUIT NO: NICN/KD/38/2018

BETWEEN:

SAMUEL JATAU…………… CLAIMANT

AND

AHMADU BELLO UNIVERSITY, ZARIA (ABU)}
THE COUNCIL, ABU}
THE VICE CHANCELLOR, ABU}
THE REGISTRAR, ABU}
THE BURSAR, ABU}.……………………….. DEFENDANTS

J U D G E M E N T

The Claimant was the former Deputy Bursar of the 1^st Defendant until 3^rd January, 2017 when he was transferred to another office. His appointment was however terminated by the 1^st Defendant for gross misconduct on 13^th August, 2018.

The case of the Claimant is that he received queries from the 4^th Defendant on allegations of diversion of money and issuance of confirmation letters to third parties without authorization. After he replied the queries, he was invited to appear before the Joint Council and Senate on Staff Disciplinary matters – Disciplinary Committee. The Claimant appeared before the Disciplinary Committee and he subsequently appeared before the 1^st Defendant’s Governing Council. As a result of the decision of the Council, the Claimant’s appointment was terminated. Thereafter, the Claimant appealed in exercise of his right to the Council but he did not receive a positive result from the Defendants.

Being thereby aggrieved by the Defendants’ action, the Claimant commenced the present action;videComplaint and Statement of Facts filed in this Court on 05/11/2018, whereby he claims against the Defendants, the reliefs set out as follows:
A Declaration that the composition of the Joint Council and Senate Committee on Senior Staff Disciplinary Matters which sat between the 25^th – 27^th April, 2018 (particularly on the 26^th April, 2018) was incompetent and the decision reached at the meetings and report passed unto the University Governing Council was void ab initio; same having not been composed with the Chairman of Council (Mallam Adamu Fika, the Pro-Chancellor) presiding as the Chairman as provided by the Statutes establishing the Defendants.
A Declaration that the termination of the Claimant’s appointment without fair hearing violates his right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and 1^stDefendants enabling law and Scheme and Condition of service as approved by Council of 1^st Defendant.

iii. A Declaration that the termination of the Claimant’s appointment by the Defendants is wrongful and undue victimization by the 4^th Defendant, the Claimant having been cleared of any wrong doing or gross misconduct by the Governing Council as reflected in the minutes of the meeting when he appeared before them.

An Order setting aside the letter terminating Claimant’s appointment with 1^st Defendant dated 13^th August, 2018.
A Consequential Order reinstating the Claimant back to his job as Deputy Bursar with all arrears of salaries, allowances, promotions, annual increments, leave and other entitlements as prescribed by the 1^st Defendant’s Scheme and Conditions of Service with the effect from 13^th August, 2018 until he is reinstated.
An Order compelling the Defendants jointly and severally to pay the Claimant the cost of this action including his solicitors fee.
The Defendants joined issues with the Claimant by filing aJointStatement of Defence on 07/01/2019 to which a Counter-Claim was subjoined. The Defendants contended, in summary, that they complied with all the applicable laws and regulations with respect to the termination of the Claimant’s appointment. The Defendants further contended that the Claimant is not entitled to any of his claims.
Whereof the Defendants counter – claimed against the Claimant as follows:
A Declaration that the Claimant’s employment with the 1^st Defendant was lawfully terminated in accordance with the 1^st Defendant’s law, thus the Claimant is not entitled to any of his claims in this suit.
N1,000,000.00 (One Million Naira) being solicitor’s fee.

The Claimant further filed a Reply to the Defendants’ Statement of Defence on 16/01/2019.

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 fourteen (14) sets of documents as exhibits. He was thereafter cross-examined by the Defendants’ learned counsel.

The Defendants, called two witnesses, namely Mrs. Aisha Isah and Mallam Yahaya A. Hassan. They both adopted their written depositions as their evidence-in-chief and tendered in all, a total of twenty-one (21) sets of documents in evidence. They were also both cross-examined by learned counsel for the Claimant.

At the conclusion of plenary trial, parties filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

In his final address filed on20/08/2019but adopted on 29/10/2019, the Defendants’ learned counsel, A. Ishaq Esq., formulated three issues as having arisen for determination in this suit, namely:
Whether or not the Defendants’ Joint Committee of the Council and Senate on Senior Staff Disciplinary Matters which considered and investigated the Claimant’s disciplinary case was duly constituted in accordance with the extant laws?
Whether the termination of the Claimant’s appointment with the 1^st Defendant was in accordance with fair hearing and/or rules of natural justice?
Whether the termination of the Claimant’s appointment by the Defendants is wrongful owing to undue victimization and sic – whether the Claimant was cleared of wrong doing by the 2^nd Defendant?
In the Claimant’s final address filed on27/09/2019, his learned counsel,Emmanuel Shodeinde, Esq., adopted the first issue already identified by the Defendants’ learned counsel as the sole issue for determination but with a slight modification, that is:

“Whether or not the Defendants’ Joint Committee of the Council and the Senate on Senior Staff Disciplinary Matters which sat on the 26^th April was duly constituted in accordance with the Statutes creating the 1^st Defendant, same having not being composed with the Chairman of Council (Mallam Adamu Fika) presiding as Chairman?”

The Defendants’ Reply to the Claimant’s final address was filed on 07/10/2019.

Now, on the basis of the pleadings of parties before the Court; and the totality of the evidence placed on record by either side, it is my considered view that the focal issues that call for resolution in this suit are as adopted by respective learned counsel and but I have taken liberty to rephrase the issues as follows:
Whether the Defendants complied with provisions of the 1^st Defendant’s Laws, Statutes and Ordinances in dismissing the Claimant from his employment.
If the answer to the above issue is in the negative, whether the Claimant is not entitled to his claims.

I have also taken cognizance of the totality of the arguments canvassed by the respective learned counsel in their written addresses; to which I shall endeavour to make specific reference as I deem needful in the course of this judgment.

I shall proceed to take both issues together.

It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus:

(a) To place before the Court the terms of the contract of employment and

(b) To prove in what manner the said terms were breached by the employer.

To establish that a contract of employment existed between the Claimant and 1^st Defendant, the Claimant as CW1 tendered in evidence his letter of offer of appointment as Accountant II in the Bursary Department of the 1^st Defendant dated 17/06/1992 as Exhibit C1. The Claimant also testified that he was the Finance Officer of the 1^st Defendant until 03/01/2017 when he was transferred to another office. His hand over notes was tendered as Exhibit C2. He further testified that sometime in October 2017, he received two queries from the Registrar and Secretary to the Council of the 1^st Defendant; that he replied the queries; that sometimes in 2018, he further received a letter of invitation to appear before the Joint Council and Senate Committee on Senior Staff Disciplinary Matters; that he appeared and defended himself and presented substantial documentary evidence and that thereafter he got a letter dated 14/06/2018 from the Registrar and Secretary to Council inviting him to appear before the Council (the 2^nd Defendant). The queries, the Claimant’s reply to the queries, the letters of invitation to appear before the Joint Council and Senate Committee on Senior Staff Disciplinary Matters and the Governing Council were tendered in evidence as Exhibits C3, C3A, C4, C5 and C6 respectively.

The Claimant alleged that when he appeared before the Council, he was not afforded the opportunity of defending himself. He testified that he received a letter dated 13/08/2018 terminating his appointment and further testified that he made an appeal against the purported dismissal. The letter of termination of appointment and the letter of appeal to Council were tendered in evidence as Exhibit C10 and Exhibit C11 respectively.

Now, theClaimant’s letter of appointment Exhibit C1, makes it clear that his appointment and the terms thereof including termination of the employment are subject to and governed by the 1^stDefendant’s Laws, statutes and ordinances. In other words, the Claimant’s employment was one with statutory flavor, conferring him with a legal status higher than an ordinary matter/servant relationship and could only be terminated in the way and manner prescribed by the Statute establishing the University or the Regulations made under it.
Evidence on record, as adduced by theDW1and DW2 is that the Claimant issued letters of confirmation to 3^rd parties without proper authorization or approval. Pursuant to the issuance of the alleged unauthorized letters of confirmation by the Claimant, the Defendants witnesses testified that the Defendants received complaints, letters of demand from the third parties and a letter from the Economic and Financial Commission (EFCC) inviting the Claimant to appear before it (EFCC). The letters of confirmation issued to third parties, letter of demand, letters of complaints and letter of invitation from EFCC were tendered in evidence as Exhibit D2, Exhibit D2A, Exhibit D2B, Exhibit D1, Exhibit D7, Exhibit D8, D10 and Exhibit D3 respectively.

The Defendants witnesses further testified that internal memos and queries were issued to the Claimant to explain his roles in the alleged unauthorized issuance of confirmation letters to third parties and also to show cause why disciplinary action should not be taken against him; that the Claimant replied the said memos and queries but according to the Defendants, the Claimant’s responses were unsatisfactory, therefore his case was subsequently referred to the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (disciplinary Committee) which recommended the Claimant’s compulsory retirement from the services of the 1^st Defendant. The Defendants tendered in evidence Exhibits D4, D5, D4A, D5A, D9A and D11, namely, the memo and the query issued by the bursar, reply of the Claimant to the memo and query and letter of bursar to the Vice Chancellor.

DW1 and DW2 further testified that the Claimant was invited before 2^nd Defendant – the Governing Council; that at the Council’s meeting of 19^th and 20^th June, 2018, the Claimant’s compulsory retirement was converted to termination of appointment.

The Defendants’ witnesses maintained that the Claimant’s actions amounted to gross misconduct and that the Defendants afforded him adequate opportunities to defend himself. The witnesses further testified that the composition of the Defendants’ Disciplinary Committee and the termination of his appointment were in accordance with the Defendants’ Law and Regulations. In support of their defence, the witnesses tendered the report of the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters, minutes of the 176^th and 179^th meeting of the Governing Council, Regulations governing the conditions of appointment of senior staff of 1^st Defendant, appointment letter of Dr. Mora to serve as Chairman of Joint Council and Senate Committee on Disciplinary Matters as Exhibits D13, D12, D12A, D14 and D16 respectively.
Now, from the totality of the evidence adduced by the Claimant, could it be said that he has satisfactorily established that his appointment was unlawfully terminated by the Defendants as alleged to entitle him to the reliefs he claimed?

The crux of the Claimant’s case and upon which the determination of his claims turns, is the propriety of the manner of the termination of his appointment by the Defendants. The Claimant alleged that the procedure for the termination of his appointment was not as prescribed by the Laws and Regulations of the 1^st Defendant.

The submission of the learned Claimant’s counsel on the termination of senior members of staff of the 1^st Defendant such as the Claimant in the instant case is that the termination must conform with the Statute 8 (5) (a) and (b) of the 1^st Defendant Law, and that any other means adopted by the Defendants is illegal, null and void and of no effect whatsoever for its inconsistency with the University Statutes and Laws. Learned counsel for the Claimant further submitted that the composition of the members of the Disciplinary Committee is clearly stated by the 1^st Defendant Statute. Learned Claimant’s counsel argued that the Disciplinary Committee which submitted the report by which the Claimant’s appointment was purportedly terminated is illegal, null and void and of no effect whatsoever and that any action contrary to the provisions of the Statute renders any act or decision reached unlawful.

In support of his propositions, learned counsel for the Defendants relied inter – alia on the cases of Fakuade Vs O.A.U.T.H.C.M.B [1993] LPELR 1233; Iderima Vs Rivers State [2005] 7SCNJ 493; Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt. 9) 623; Olufegan Vs Abdulraheem [2010] All FWLR (Pt 512) 1093; Ibama Vs S. P. D. C. (Nig) Ltd [2005] 17 NWLR (Pt 954) 364

On the other hand, the argument of the learned counsel for the Defendants on the issue of the composition of the members of the Joint Council and Senate on Senior Staff Disciplinary Matters is that strict and literal interpretation of Statute 8 (5) (a) and (b) (supra) will amount to a violation of the principle of fair hearing. Learned counsel further argued that to allow the Chairman of Council chair the investigation of the Disciplinary Committee and thereafter preside over Council will be prejudicial to the case of the Claimant.

Learned counsel argued further that the appointment by Council of Dr. A. T. Mora as the Chairman of the Disciplinary Committee is pursuant to the Council’s powers under Statute 4 (14) (2) of the 1^st Defendant’s Law. He further submitted that the appointment of the Chairman was to afford the Claimant fair hearing and/or in accordance with the principles of natural justice and maintained that the termination of the Claimant was not unlawful.

Now, issues were not joined by parties on the fact of employment and the terms of the said employment and that the Claimant’s appointment was governed by Exhibit C1.Paragraph 2 of Exhibit C1 states:

“The appointment is subject to the provisions of the University Laws, Statutes and Ordinances made thereunder, and to the Regulations governing the Conditions of Appointment of Senior Staff made by the University Council from time to time”.

Section 4 (h) (i) of the Regulations made by the 1^st Defendant governing the condition of appointment provides:

“An appointment may be terminated before its due date of expiry as follows:-

(i) By the Council in accordance with the University statutes.

As rightly submitted by respective learned counsel, the way and manner prescribed for the termination of statutory employment such as the Claimant’s employment must be religiously observed otherwise such termination has no effect whatsoever and the employee will be deemed as continuing in his employment. See Shitta – Bey Vs Federal Public Service Commission(supra); Olaniyan Vs University of Lagos(supra); Iderima Vs Rivers State Civil Service Commission (supra)
The argument of the learned counsel for the Defendants is that the strict application of Statute 8 (5) will violate the rules of natural justice and it will occasion miscarriage of justice to the Claimant. His reason being that, to allow the Chairman of Council preside over the investigation of the Disciplinary Committee and to thereafter preside over the Council will be prejudicial to the case of the Claimant. His further argument is that the word “shall” as constructed in Statute 8 (5) could be interpreted where the context so admits as “may”. In support of his propositions, learned counsel citedinter – aliathe cases of Nyame Vs F. R. N [2010] 7 NWLR (Pt 1193) 344; Skye Bank Vs Iwu [2017] 16 NWLR (Pt 1590) 24; LPDC Vs Fawehinmi [1985] 2 NWLR (Pt 7) 300; Okonkwo Vs U. B. A Plc [2011] 10 NWLR (Pt 1572) 1 at 35.
In view of its relevance to the determination of this case, I find it necessary to refer to the provisions ofStatute 8 (5) of the Ahmadu Bello University Law, Cap A 14 Laws of the Federation, 2004(hereinafter referred to as the Act). I have reproduced same herein below.

“Subject to the provisions of this Statute and to the terms of his appointment, no member of senior staff shall be dismissed save by the decision of Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment.

Provided that:-

(e) Before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and Senate consisting of the Chairman of the Council as Chairman and equal members of the Council and of the Senate.

(f) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council”. (Underlining for emphasis)

It is clear that before a decision can be taken to terminate an employee as the Claimant in the instant case, the 2^ndDefendant, the Council, consisting of the Chairman, must have done two things, namely:-

(1) Received and considered a report of the Joint Committee of the Council and the Senate on the case with the Chairman presiding;

(2) Shall have given the employee reasonable opportunity of being heard.

For emphasis, paragraph 5 (e), provides that “the Joint Committee of the Council and the Senate consisting of the Chairman of the Council as Chairman and equal members of the Council and of the Senate” shall receive and consider the report and the recommendations on the allegation against a senior staff.

It is an elementary and established principle of law that facts admitted needs no further prove.

In paragraph 31 of the Statement of Defence and Exhibits D12, D12A and D16, the Defendants admitted that the Chairman of the Council did not preside over the meeting of the Joint Committee of Council and Senate on Disciplinary Matters.

Paragraph 31 of the Statement of Defence reads as follows:-

“The Defendants’ Council in the exercise of its powers under the ABU Law and Statutes appointed Dr. A. T. Mora to chair the Joint Committee of Council and Senate Committee on Senior Staff Disciplinary Matters. The Defendants’ Council Letter appointing Dr. A. T. Mora dated 25^th April, 2018 is pleaded.”

The said letter appointing Dr A. T. Mora was tendered in evidence as Exhibit D16.

As rightly submitted by the learned Claimant’s counsel, it is now firmly established that where a statute confers specific power on any person or authority for the performance of certain acts or duty, it is only that person or authority and no other person that is contemplated in the performance of the acts or duty under the relevant law. Anything short of this cannot be endorsed by the law.

In Bamigboye Vs Unilorin [1999] 6 SCNJ 295, the Apex Court re-stated the law, thus:

“The person to whom an office is delegated cannot lawfully devolve the duty to another unless he is expressly authorized to do so. In the instant case, the power of the University Council to discipline senior administrative, academic and professional staff of the University of Ilorin Act was delegated to it by that Section of the Act, thus the Council cannot delegate it to another, that is the staff Disciplinary and Appeal Committee”.

Furthermore, it is trite that in matters of discipline, the laid down procedure must be strictly adhered to, otherwise any decision affecting the right, or repudiation or tenure, of office of the employee will be declared null and void.

See also U.N. T.H.M.B. & Ors Vs Nnoli [1994] 8 NWLR (Pt 363) 376; Raji Vs Unilorin [1999] All FWLR (Pt 345) 325; Ahmed Vs Ahmadu Bello University Zaria & Anor [2016] LPELR 40261.

Similarly, in the instant case, the power or authority vested in the Chairman of Joint Committee of the Council and the Senate by Statute 8 (5) of the 1^stDefendant cannot be usurped, or substituted by the Council conferring same on another person, as conferred on Dr. A. T. Mora in the present case.

The strenuous argument of the learned counsel for the Defendants is that a strict interpretation of Statute 8 (5) will violate the rules of natural justice and it will occasion of injustice to the Claimant. With due respect to the learned counsel, I disagree with his interpretation of the provisions and his line of reasoning. Where a section of the law such as Statute 8 (5) confers powers on an authority but subjects the exercise of that power donated by that section to a proviso or provisos, it will not only be contrary to the intendment of the law maker, but also contrary to the operation of the proviso or provisos to interpret that section in a manner that ignores or neutralizes or plays down the effect of the proviso on the power so donated in the main section. In other words, to give to that section an interpretation that goes beyond the effect of the proviso will be wrong.

In a bid to justify the appointment of the Dr. A. T. Mora as Chairman Joint Council and Senate Committee on Senior Staff Disciplinary Matters, learned Defendants’ counsel had argued that the 2^ndDefendant is empowered by Statute 4 (14) (2) of Ahmadu Bello University Law to make such appointment.

Statute 4 (14) (2) (supra) in reference provides as follows:

“The Council may establish disciplinary committees of the Council and the Senate to which the Council may appoint members of Council and Senate. The Council may delegate to any such Joint Committee any powers or functions which it is itself competent to perform”.

I agree with the submission of the learned counsel for Claimant that by a literal interpretation of the provision of this Statute, the Council may only delegate powers or functions to any such joint committee which it is itself competent to perform. The Council does not have power to amend the express provision of the composition of its members to substitute the Chairman Council with another member. I so hold.

Consequently, it is glaringly clear that the Defendants blatantly violated the procedure for the termination of appointment provided in Statute 8 (5) (supra) which applies to the Claimant in terminating his appointment.

The question really is not whether the Claimant committed any act of gross misconduct (though this is not saying that he did), but the germane question is whether in terminating his appointment, the statutory prescribed procedure was complied with.

I am satisfied that the termination of the Claimant’s appointment was not in accordance with the law. Therefore, I find and hold that the Defendants did not strictly and fully comply with the provisions of the Ahmadu Bello University Act (supra) and was therefore in breach thereof.
The learned Defendants’ counsel had vehemently argued that the Claimant was accorded fair hearing as adequate opportunity was given to him to defend himself.I consider a detailed consideration of the requirement of fair hearing as elaborated by the learned counsel for Defendants as unnecessary in the light of the conclusion that the Defendants did not strictly comply with the prescribed procedure on the composition of the members. The reasoning for this is premised on the ground that failure to comply with any of the conditions is tantamount to non compliance as there can be no partial or half compliance. The non – observance on the composition of the members in the process of reaching a decision renders the decision itself a nullity. I so hold.

Having held that the Defendants did not strictly and fully comply with the provisions of the Ahmadu Bello University Act the purported termination of the Claimant is hereby set aside as same is unlawful, null, void and of no effect whatsoever. I so hold.

Having set aside the termination of the Claimant, what then is the remedy available to the Claimant? Or to put it differently, what is the effect of unlawful termination of an employee whose appointment enjoys statutory flavour?

In Central Bank of Nigeria & Ors Vs Igwillo [2007] 14 NWLR (Pt 1054) 343, the Supreme Court per Karibi- White JSC, (as he then was) held thus:-

“If termination or dismissal is illegal or unconstitutional or null and void and of no effect whatsoever, then a Court is entitled to order reinstatement as it happened in the instant case”.

It is on record that before the Claimant’s appointment was terminated, he had been transferred from the office of the Deputy Bursar to another officer that is, the Claimant was not a Deputy Bursar as at the time his appointment was terminated. The term reinstatement in its ordinary and primary meaning is to replace the person to the exact position he was before his removal. That is, to restore him to his status quo ante. It is therefore retroactive of the act of dismissal and restoration of payment of wages for the intervening period.

I find and hold that the Claimant is entitled to his claim for reinstatement.

Perhaps, in closing the curtain of this judgement, it is imperative to state that the Defendants did not prove the Counter – Claim and same fails in its entirety. I so hold.

In the final analysis, standing on the solid position of the law, I hereby grant the Claimant the following reliefs:
A Declaration that the composition of the Joint Council and Senate Committee on Senior Staff Disciplinary Matters which sat between the 25^th– 27^thApril, 2018 (particularly on the 26^th April, 2018) was incompetent and the decision reached in the meeting and report passed unto the University Governing Council was void ab initio; same having not been composed with the Chairman of Council (Mallam Adamu Fika, the Pro-Chancellor) presiding as the Chairman as provided by the Statutes establishing the Defendants.
An Order of this Honorable Court setting aside the letter terminating the Claimant’s appointment dated 13^thAugust, 2018.
An Order of this Honourable Court reinstating the Claimant as a member of the Senior Staff of the 1^stDefendant.
An Order of this Honourable Court directing the Defendants to pay within one (1) month all arrears of salaries, allowances and other entiltlements from the date of the purported dismissal till date.

Parties shall bear their respective costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

27/01/2020

Legal representation:

Emmanuel Shodeinde Esq. for Claimant