LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

SADIQ MOMOH JIMOH -VS- HON. MINISTER OF EDUCATION & 7 ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON TUESDAY 21ST DAY OF JANUARY 2020

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

SUIT NO: NICN/KD/09/2017

BETWEEN:

SADIQ MOMOH JIMOH                               CLAIMANT

AND

  1. THE HON. MINISTER OF EDUCATION
  2. FEDERAL UNIVERSITY DUTSINMA (FUDMA)
  3. COUNCIL, FUDMA
  4. THE VICE CHANCELLOR, FUDMA
  5. PROF. HARUNA ABDU KAITA
  6. THE REGISTRAR, FUDMA
  7. THE LIBRARIAN, FUDMA
  8. THE BURSAR, FUDMA                        DEFENDANTS

J U D G E M E N T

The Claimant commenced this action vide Complaint and Statement of Facts filed in this Court on 21/02/2017, and claimed against the Defendants, the reliefs set out as follows:

  1. A DECLARATION that the fact finding Committee on allegations against some Federal Tertiary Institutions sent to Federal University Dutsinma, Katsina State failed the fundamental right test of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) not having been constituted in a manner that would ensure its independence, and impartiality.
  2. A Declaration that the Claimant was not granted the right to fair hearing when the 4th, 5th & 6th Respondents implemented the recommendation of the fact finding committee without first referring the said recommendations to the 2nd Respondents full and duly convened Council for adoption and subsequent referral to the 2nd Respondent’s Senior Staff Disciplinary Committee for a fair hearing.
  3. A declaration that having accepted Claimant’s voluntary resignation on 13th July 2016, the Claimant was no longer a staff of the 2nd Respondent for them (sic – it) to terminate his appointment on 28th October, 2016.
  4. A Declaration that the 4th & 5th Respondents’ appointment  being statutorily defective is void ab initio and therefore lacks legitimacy to exercise any disciplinary power over the Complainant as principal officer (Bursar) of the 2nd Respondent.
  5. A Declaration that the appointment of Prof. Haruna Kaita as Vice – Chancellor of Federal University Dutsinma is contrary to law and is therefore void.
  6. An order setting aside the recommendations of the fact finding committee on allegations against some Federal Tertiary Institutions relating to Federal University, Dutsinma forwarded to the Vice-Chancellor Federal University, Dutsinma by MallamAdamuAdamu, Hon. Minister of Education vide letter reference FME/PSE/TE/1038/C.1/1/8 dated 9th September, 2016, same having been made in violation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).  
  7. An Order setting aside the letter of termination appointment for gross misconduct with Reference FUDMA/REG/PSW/004/1/052 dated 28th October, 2016 for being ultra vires, null and void. 
  8. AN ORDER setting aside the appointment of Prof. Haruna Kaita as Vice Chancellor of Federal University Dutsinma same being contrary to the statutorily prescribed procedure and as a tool to victimize the Complainant.
  9. The cost of this action.
  10. It is borne by the records of the Court that the Defendants were duly served with the originating and all other processes in the suit. Hearing notices of the scheduled hearing dates were equally served on them but they elected not to defend even though they were represented by counsel.
  11. At the plenary trial, the Claimant testified in person by adopting his written depositions on oath. He further successfully tendered four (4) documents in evidence; whilst the Defendants’ learned counsel elected not to cross-examine him, and as a result of which the Claimant closed his case.
  12. The Court thereafter ordered parties to file and exchange their written final addresses as prescribed by the provisions ofOrder 45of the Rules of this Court.

Only the Claimant’s learned counsel, A. A. Akume, Esq., filed his final written address on 08/10/2019, wherein he formulated two issues as having arisen for determination in this suit, namely:

  1.  Whether or not the Claimant is entitled to judgement based on the strength of his case alone.
  2.  Whether or not the Defendants by their failure to file any defence have not by so doing conceded to the Claimant’s claim.
  3. In my view, considering the uncontroverted evidence led on the record, the only issue arising for determination in this suit could be reframed as follows:

“Whether the termination of the Claimant’s appointment by the Defendants was not unlawful, having accepted the resignation of the Claimant’s appointment; and if so, whether the Claimant is entitled to his claims in this suit.”

In proceeding to determine this sole issue, I have taken due cognizance of the arguments canvassed by the Claimant’s learned counsel in his final address; and as I consider needful in the course of this judgment, I shall make specific reference to his submissions.

  1. As a preliminary point, it is pertinent to establish the point that even though the Defendants failed to defend the present suit, the Claimant still has the onerous responsibility to establish his entitlement to the declaratory reliefs claimed. This is so in that the law is well settled that a declaratory relief sought in an action is granted principally upon cogent and satisfactory evidence adduced by the Claimant, regardless of whether or not the Defendants admitted the claim or failed to defend the action. In other words, in a claim for declaration, the burden as well as the onus of proof does not shift from the Claimant to the Defendant. SeeMotunwase Vs Sorungbe[1988] 5 NWLR (Pt 92) 90; Dumez Nigeria Ltd Vs Nwakhoba [2009] All FWLR (Pt 461) 842.

In the present case therefore, the failure of the Defendants to defend the action would not ordinarily relieve the Claimant of the burden placed on him by law to adduce cogent evidence to establish his declaratory reliefs and other reliefs sought.

  1. Essentially, the case of the Claimant as CW1 is that until his voluntary resignation of his appointment, he was the former bursar of the 2ndDefendant andwas also amongst the members of staff that were investigated by a fact finding committee that was inaugurated by the 1st Defendant on 10th December, 2015 to investigate some petitions against the principal officers and some members of staff of the 2nd Defendant.

The Claimant testified further that based on the concerns of some of the members of staff on the composition of the panel of the fact finding committee, they instructed their solicitors to petition the Executive Secretary of National Human Right Commission but the 1st Defendant ignored the petition written by their solicitors and further directed that the panel proceeded to the 2nd Defendant to conduct the fact finding exercise. The copy of the solicitor’s petition and the recommendations of the fact finding committee were tendered in evidence as Exhibit C4 and Exhibit C2 respectively.

  1. The Claimant further testified that being a senior staff of the 2ndDefendant, only the Council of the 2ndDefendant can discipline him in line with the disciplinary procedure prescribed in the 2nd Defendant’s enabling law and condition of service for its senior staff.

The Claimant also testified that the report of the Senior Staff Disciplinary Committee was not approved by the Council as the Council was not convened as prescribed by the enabling law and condition of service.

  1. The Claimant also testified that he resigned his appointment as the bursar of the 2ndDefendant due to the victimization, intimidation and threats he faced from the 5thDefendant and other principal officers who are all indigenes of Katsina State. He further testified that he received a letter of acceptance of his resignation. The Claimant also testified that regardless of his resignation, the Pro-Chancellor, the Chairman of Council along with the 4th, 5th, 6th, 7th and 8th Defendants implemented the Committee’s report and terminated his appointment without according him fair hearing or without regard for the prescribed due process.

The Claimant tendered the letter of acceptance of resignation dated 13/07/2016 and the letter of termination of appointment as Exhibits C1 and C2 respectively.

  1. From the totality of the evidence adduced by the Claimant,the kernel of the case of theCW1 centered basically on the termination of his appointment for gross misconduct after he had duly resigned his appointment.

Now, could it be said that the Claimant has satisfactorily established that his appointment was unlawfully terminated by the Defendants as alleged to entitle him to the reliefs he claimed?

  1. Before I go on to consider the arguments made by the learned Claimant’s counsel in his written address, I will like to state here the fundamental principles that govern statutory employment.

It is now beyond any argument, indeed the law is on a firma terra that in a statutory employment, as in the instant case going by the reliefs sought, the termination of the employment of an employee by the employer cannot be unlawful unless it is in breach of the terms and conditions of employment.
Therefore, an employee who complains that his employment was unlawfully terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. This principle finds support in a long line of judicial authorities the likes of Amodu Vs Amode [1990] 5 NWLR (Pt 150) 356; Iwuchukwu Vs Nwizu [1994] 7 NWLR (Pt 357) 379; Katto Vs CBN [1999] 6 NWLR (Pt 607) 390; Ibama Vs S.P.D.C. [2005] 17 NWLR (Pt 954) 364.

  1. The unchallenged evidence is that the Claimant was an employee (the bursar) of the 2ndDefendant (his employer) and that he voluntarily resigned his appointment by giving notice of resignation. It is also unchallenged that the Claimant’s employment was governed by statute. The grouse of the Claimant is whether the 2ndDefendant’s letter of 28th October, 2016 signed by the 6th Defendant terminating his appointment was not unlawful and void as against the 2nd Defendant’s earlier letter of 13th July, 2016 accepting the notification of the resignation of the Claimant’s employment.
  2. I hereby pause to discuss the law relating to notice of resignation. The law is that a notice of resignation is effective not from the date of the letter, nor 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 carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See:Osu Vs PA.N. Ltd[2001] 13 NWLR (Pt 731) 627; Yesufu Vs Gov of Edo State & Ors [2001] 13 NWLR (Pt 731) 517; Adefemi Vs Abegunde [2004] 15 NWLR (Pt 895) 1; WAEC Vs Oshionebo [2006] LPELR-7739
  3. The Claimant’s testimony is that he voluntarily sent in his letter of resignation and that he received a letter of acceptance from the 6thDefendant conveying the acceptance of his resignation by the 2ndDefendant.

The relevant portion of the letter of acceptance dated 13th July, 2016 and tendered as Exhibit C1 reads: –

“Sequel to your letter to the Vice Chancellor dated 8th April, 2016 on the above subject, I write to convey the acceptance of your notice of resignation of appointment and secondment to Federal University, Dutsinma.

  1. The acceptance takes effect from 31stJuly, 2016.
  2. You are expected to handover all University property in your possession.
  3. Please accept the assurance of my best regard and esteem.

This piece of evidence, as I had pointed out supra, was never contradicted or challenged whatsoever; indeed, the Claimant was never cross-examined nor was evidence pleaded by the Defendants. I am of the firm view that Exhibit C1 is clearly an acceptance of Claimant’s withdrawal from the 2nd Defendant’s service.

  1. My position is more strengthened by the above cited judicial decisions as well as the persuasive decision of an India Court in the case ofSiri Krishna Vs Prescribed Authority, Kanpur [1995] (1) LLJ 1060 (ALL HC),where it was held that;

“The voluntary retirement is an act of an employee and if it is proved and established that the employee concerned had chosen to give up office of employment of his own accord and free will, the cessation of his employment and the breaking up the relationship of master and servant is immediate without calling for an approval of the suo motu action of the master unless of course, the service conditions required anything to the contrary.” (Emphasis mine)

On the strength of these judicial precedents, I am of the firm view that the Claimant had resigned from the service of his employer from 31st July, 2016 as same was accepted by the 2nd Defendant’s letter of acceptance, Exhibit C1. I so hold.

  1. What remains now is whether the termination the Claimant’s appointment for misconduct by the 2ndDefendant was not unlawful having accepted his resignation three months prior to the issuance of the said letter of termination – Exhibit C3.

By the legal authorities I had earlier cited and by which I am bound, it is now without peradventure that the Claimant’s appointment with the 2nd Defendant came to an end on 31st July, 2016, the effective date as stated in Exhibit C1.

I must further hold that the letter of termination of the Claimant by the 2nd Defendant dated 28th October, 2016 was rather too late in the circumstance of this case. It has no legal effect, it is an afterthought and thus declared null and void. I so hold.

  1. Perhaps, it is imperative to further restate the position of law as it relates to statutory employments.An employment which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect . SeeIbama Vs SPDC (Nig) Ltd (supra); UBN Ltd Vs Ogboh [1995] 2 NWLR (Pt 380) 647.

This brings me to the argument of the learned counsel for the Claimant that the Claimant’s employment was unlawfully terminated as same was based on the Federal Government White Paper on recommendations of the fact finding Committee on complaints against some Federal Tertiary Institutions.

  1. I totally agree with the learned Claimant’s counsel that the Claimant’s employment cannot be terminated outside the ambit ofFederal University of Dutsin-Ma Act of 2015 and by Section 17 thereof.

Section 17

“(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University other than the Vice-Chancellor, should be removed from office or on grounds of misconduct or inability to perform the functions of his office, the Council shall:

(a)  give notice of those reasons to the person in question;

(b)  Afford such person an opportunity of making representation in person on the matter to the Council; and

(c)   take a decision to terminate or not to terminate the appointment

(2) If the affected staff or any three members of the Council so request within the period of one month from the date of the receipt of the notice of the Council’s decision, the Council shall make arrangements for –

  1. i) a joint committee of the Council and the Senate to review the matter and to report on it to the Council;
  2. ii)for the person in question to be afforded the opportunity of appearing before and being heard by an investigating committee with respect to the matter;

and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed, the Council may so remove him by an instrument in writing signed on the directions of the Council. (Underlining for emphasis)

Any action by the Defendants contrary to the above is an infraction of the said statutory provision.
The indictment of Claimant as alleged by the Federal Government White Paper on recommendations of the fact finding committee ought to follow the disciplinary procedure of the University Act. See NEPA Vs ANGO [2001] 15 NWLR (Pt 737) 672 at 647 – 648, where the Court held thus:

“An employee of an employer with statutory flavor has no right to terminate his appointment at will because the employee does not hold the appointment at pleasure of such an employer. To terminate the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held to be ineffectual and void.”

The uncontroverted evidence on record by the Claimant is that the Defendants did comply with the procedure stated by the University Act before his employment was terminated. I am of the view that even if the Claimant did not resign his appointment, the Defendants can only terminate his appointment by complying with the procedure laid down by the University Act for discipline of its members of staff. I so hold.

  1. The Claimant also challenged the appointment of the principal officers of the 2ndDefendant namely: Prof Haruna Abdu Kaita as Vice Chancellor, the Registrar, the Librarian and the Bursar in his testimony however, there was no iota of evidence adduced in support of these claims. It is trite law that facts averred in pleadings must be substantiated and proved by evidence. Averments in pleadings are facts as perceived by the party relying on them. There must be oral and or documentary evidence to show that facts pleaded are true. Consequently, pleadings without evidence to support it are worthless. Various judicial authorities avail on this principle of law.

See: UBA Plc Vs Sani Abacha Foundation for Peace and Unity [2004] 3 NWLR (Pt 861) 510; FBN Ltd Vs Moba Farms Ltd [2005] 8 NWLR (Pt 928) 92; Berende Vs Usman [2005] 14 NWLR (Pt 944) 1; Cameroon Airlines Vs Otutuizu [2011] LPELR 827.

It therefore goes without saying that the averments made by the Claimant that were not proved or supported by evidence are deemed abandoned. I so hold.

  1. In the final analysis, the judgment of the Court is that thetermination of the Claimant’s employment was unlawful.

For avoidance of doubts and abundance of clarity, judgment is hereby entered in favour of the Claimant in part and upon the following terms:

  1. It is hereby declared as follows:

(a) The Claimant effectively resigned his appointment as the bursar and ceased to be a member of staff of the 2nd Defendant with effect from 31st July, 2016 vide the 2nd Defendant’s letter of acceptance of his resignation.

(b) The termination of the appointment of the Claimant by the 2nd Defendant on the 28th October, 2015 is unlawful, null, void.

  1. Consequently, the recommendation of the fact finding committee on allegations against some Federal Tertiary Institutions and the letter of termination of the Claimant’s appointment for gross misconduct dated 28thOctober, 2016 are hereby set aside.

I make no order as to costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

21/01/2020

 

Legal representation:

A.A Akume Esq. with S. A. Apenigafor Claimant

  1. B. Akutfor 2nd– 5th Defendants

1st Defendant not represented

admin

Website:

Related Story