BARRISTER IBRAHIM ZAKARIYA OLARENWAJU -VS- DR SIRAJ

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 16^th September, 2019 – NICN/KN/60/2016

BETWEEN

BARRISTER IBRAHIM ZAKARIYA OLARENWAJU – CLAIMANT

AND

*DR SIRAJ ABDULKARIM (THE CORDINATOR)
MUHAMMAD GHALI USMAN (REGISTRAR)
*PROF MUHAMMAD SANI ADAM (DEAN OF LAW)
INSPECTOR GENERAL OF POLICE DEFENDANTS
MINISTER OF INTERIOR
NIGERIA POLICE ACADEMY, WUDIL KANO

(**Names of 1^st and 3^rd Defendant struck out by Court order of 5^th February, 2018)

REPRESENTATIONS: Parties absent.
Hamza Haladu with J. S. Musa for the 2^nd and 6^th Defendants. Magaji Mato Ibrahim holding the brief Dayo Akinleja S. A. N for the Claimant.

JUDGMENT

The Claimant commenced this action by the Writ filed on the 6^th of December, 2016 in which he claimed the following:

A Declaration that the Defendants’ letters dated 7^th September, 2016 to the Claimant titled “Termination of Appointment” purporting to terminate the Claimant’s appointment with the Nigerian Police Academy, Wudil Kano is ultra vires, null and void and of no effect whatsoever.
A Declaration that the Claimant is still in the service of the Nigerian Police Academy, Wudil, Kano.
A Declaration that the Claimant is a confirmed staff of the Defendants and the Defendants are bound to afford him such status.
A Declaration that the Defendants are not entitled to summarily terminate the Claimant’s appointment without complying with the provisions of the condition of service of other Federal Universities and other relevant status as to discipline.
A Declaration that the purported termination of the appointment of the Claimant by the Defendant under the guise of service no longer required or under any guise whatsoever is contrary to the provision of the Pension Act of Nigeria in that the Claimant is a permanent and pensionable staff of the Nigerian Police Academy.
A Declaration that the purported termination of the Claimant’s appointment by the Defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria.
An Order setting aside the purported termination of the Claimant’s appointment and nullifying the Defendants’ letters to the Claimant in that regard.
An Order compelling the Defendants to approve and issue a confirmation letter to the Claimant.
An Order compelling the Defendants to restore the Claimant to his post as Lecturer in the Faculty of Law, Nigerian Police Academy, Wudil, Kano State with all his rights, entitlements and other perquisites of office.
An Order mandating the Defendants to pay the Claimant all his salaries and allowances from October 2016 till the Day of Judgment and henceforth.

THE CASE OF THE CLAIMANT

It is the case of the Claimant that he was appointed by Exhibit A dated 27^th August, 2013 by which he was appointed as Law Lecturer II (as a pioneer staff) of the Faculty of Law, Nigerian Police Academy, the 6^th Defendant. He maintains that he assumed duty on 9^th September, 2013. And since then he had been diligent in the discharge of his primary duties. He averred further that when it was time to confirm his appointment alongside his co-pioneer Academic staff, following the satisfactory completion of the two (2) years probationary period on 8^th September, 2015, “The Defendants for no just cause or out of sheer (sic) administration inexperience neglected and failed to do so. In his words from his Witness Statement on Oath which he adopted: “It was a rude shock that when the Defendants eventually woke up from their slumber and decided to confirm us as Nigerian Police Academy Pioneer Staff, they purportedly terminated my appointment on the ground of service no longer required. This sad and ill informed decision of the Defendants was communicated to me vide a letter dated 7^th September, 2016 . . .” That letter was admitted in evidence as Exhibit DB1.

He maintained that while he worked with the Defendant he was neither legally queried nor made to face any Disciplinary Committee let alone being legally found wanting of any wrong doing. He also maintained that in consonance with the conditions of service regulating his appointment with the Defendants, the confirmation of appointment should have been premised on the satisfactory performance of his primary duties devoid of the Defendants’ whims and caprices, religious or tribal considerations not to be used as an avenue for witch-hunt or accomplishment of personal vendetta against him.

The Claimant maintained further that the confirmation of his appointment was characterised with intrigues and politics such that when the assessment form for the long overdue confirmation was eventually given to him to fill by his Head of Department. The Defendants were given notice to produce the Assessment form. That the 3^rd Defendant (now struck off as a Defendant being the former Dean of Law Professor Muhammad Sani Ahmad) at that stage out of hatred against him bluntly refused to recommend his confirmation but termination despite his Head of Department’s satisfactory assessment/ratings for his confirmation hence the ill guided decision by the Defendants to purportedly terminate his appointment.

He maintained at paragraph 19 of his witness Statement on Oath that the 1^st, 2^nd, 4^th, 5^th and 6^th Defendants in connivance with the 3^rd Defendant and without recourse to his Head of Department (whom he was directly answerable to) terminated his appointment in circumvention of his constitutional right to fair hearing and as espoused in the conditions of service governing his appointment. He averred that he humbled himself severally to plead with the Defendants to redress the ugly situation which was to no avail though he insisted he had done nothing wrong.

THE CASE OF THE DEFENDANTS

In the course of hearing and at the close of the evidence of DW1, Dr Livinus Okere, the Dean of Law called by the 2^nd and 6^th Defendants to testify, the 5^th Defendant went on to adopt the case of the said 2^nd and 6^th Defendants and rested its case on theirs and adopted DW1 as its own witness as well as DW2.

The 1^st, 2^nd, 3^rd and 6^th Defendants in their joint Statement of Defence in denying the claims of the Claimant denied that the Claimant was diligent in the discharge of his primary duties and relied on Exhibit. The letter written by the then Dean of Law dated 21^st October, 2015 headed:

“The unbecoming attitude of Olarenwaju Ibrahim Z”. That due to the attitude of the Claimant his salary was ordered to be suspended by management pending satisfactory explanation from the Claimant on his absence from the institution for 3 months. The Defendants maintained further that the decision not to confirm the Claimant was not out of inexperience but was one done in good faith and in accordance with the conditions of service and the fact that his services were no longer required by the Academy and reliance was placed on the Exhibits D and DC, the University of Ilorin and Ibadan conditions of service respectively. They maintained that the Claimant had not in any way satisfactorily completed the 3 years probationary period as his conduct was questionable, rude and he used very disrespectful language towards the Management of the Academy.

The Defendants maintained that the letter in Exhibit DA1 dated 4^th December, 2015 written to the Management by the Claimant showed caustic aggressive and disrespectful conduct of the Claimant toward management. That letter is headed Re: Demand for payment of October, 2015 salary. The Defendants also denied that there was any hatred towards the Claimant but that the Claimant was habitually not following the hierarchical order in relation to his dealing with the Management that the Claimant disregarded his Head of Department, the Dean and Personnel and reliance was placed on Exhibit DA the letter written from the Registrar urging the Claimant to route his letter through his Dean; written on 18^th December, 2014 in reply to Exhibit DA1 dated 4^th December, 2015.

The Defendants also insisted that throughout the Conditions of Service regulating the appointment of the Claimant there is no provision about assessment form to be rated by the Head of Department before confirmation is done. They also insisted that the Claimant had never been humble in his duties and to the Management of the Academy and urged the Court to dismiss the claim.

THE WRITTEN ADDRESS OF THE PARTIES

At the close of hearing parties filed their written address and proceeded to adoption thereafter. The Written address of the 5^th Defendant, Ministry of Interior was deemed adopted in the absence of Counsel pursuant to Order 45 Rule 7 of the National Industrial Court of Nigeria Civil Procedure Rules of 2017. While Counsel for the Claimant and 2^nd and 6^th Defendants adopted their address in Court.

In the written address of the 5^th Defendant, two issues were formulated for determination:

Whether the Claimant has proved his case and thus entitled to judgment.
Whether the non confirmation of the employment of the Claimant before termination confers statutory flavour on the Claimant.

The Claimant on the other hand formulated these two issues for determination:

Whether the Claimant’s appointment has not been deemed confirmed having regard to the statutory regulations governing his appointment.
Whether the appointment of the Claimant was validly terminated by the Defendant having regard to the statutory regulations regulating his appointment.

The 2^nd and 6^th Defendants in their final written address formulated the following two issues for determination:

Whether the Defendants are right when it acted in accordance with the terms of the Condition of Service obtainable in other Federal Universities when it terminated the appointment of the Claimant.
Whether the appointment of the Claimant enjoys statutory flavour.

For the purposes of this judgment, I find that the issues formulated by the Defendants as a whole can be safely subsumed within the two issues formulated by the Claimant.

In the 1^st issue: whether the Claimant’s appointment has not been deemed confirmed having regard to the statutory regulations governing his appointment.

On this issue the Claimant had submitted that a look at the Claimant’s Statement on oath; reply and relevant provisions of the conditions of service (Exhibit D and DC respectively) made it abundantly clear that the Defendants did not follow the statutorily prescribed procedure laid down for confirmation of his appointment.

It was argued for the Claimant that it was not in dispute that the Claimant who was a pioneer staff of the 6^th Defendant with DW1 at the material time of the purported termination had spent more than two years probation period in the service of the 6^th Defendant. That the import of this was agreed by DW1 under cross examination that the Claimant ought to have been reviewed or assessed by the Defendants on 8^th September, 2015 for purposes of confirmation or otherwise as mandatorily laid down in the conditions of service. Reference was made here to paragraphs 2.22.3 at page 20 and 5.1.1 at page 23 respectively of Exhibit D which is a replica of Exhibit DC. Paragraph 2.22.3 provides:

“All appointments other than those of Principal officers and Professors shall be reviewed for confirmation 2 (two) years from the date of first appointment, notwithstanding that the other officers concerned may have moved either by appointment or transfer from one Department or level to another within the probationary period of 2 (two) years.”

It was submitted further for the Claimant that the Defendants’ decision to have allowed the Claimant continue working after the completion of 2 (two) years probationary and about a year afterwards, with his salary being paid to him without deferring his confirmation in line with 2.26.0 of the University of Ilorin conditions of service (Exhibit D) makes his appointment by implication deemed confirmed as was held in OBAFEMI AWOLOWO UNIVERSITY V. DR A. K. ONABANJO (1991) 5 NWLR PT 549 at PAGE 566; PARAS A – D; PARAS G – H 570; PARAS D – E that

“A servant is deemed to have been re-appointed and confirmed, if after his probationary period, although not specifically confirmed in writing is encouraged to continue working by his master and duly paid for his continued working by the master.”

The case of DR AJEWUMI RAJI V. OBAFEMI AWOLOWO UNIVERSITY (2014) LPELR – CA/AK/109/2011 was also cited and further reference made to paragraphs 2.22.6 on deferment of probation and 5.1.2 on confirmation to a retiring age after the initial period of three years from Exhibit D.

In response to the Claimant, the 5^th Defendant in its written address had submitted that the Staff Conditions of Service of the University of Ilorin and Ibadan in Exhibit D – D6 & DC respectively did not avail and protect the Claimant as the Claimant’s employment was terminated. That the Claimant failed to prove that the termination of his employment was unlawful, relying on the case of ISIEVWORE V. N.E.P.A (2002) 7 S.C PT 11, 125 at 133 – 134 where the Supreme Court had held that the Court will not foist an employee on an unwilling employer.

In the reply on points of law the 5^th Defendant on the question whether the Claimants’ appointment has not been deemed confirmed having regard to the statutory regulations governing his appointment, submitted that the entire super structure of the Claimant’s action rested on this question, whether the Claimant’s appointment could be deemed confirmed after two years and the procedure for confirmation of appointment after 3 years was not complied with by the Defendants. On this the 5^th Defendant referred the Court to paragraph 2.22.2 of the University Of Ilorin Conditions Of Service in Exhibit D which provides:

“Any member of staff whose appointment is not confirmed within a maximum of 3 years on grounds of poor performance shall have his appointment terminated”

Reference was also made to paragraph 5.1.1 of the University of Ibadan Senior Staff Conditions of Service in Exhibit DC which provides;

“All appointments to the grade of lecturer and Senior Lecturer shall be for three (3) years in the first instance and shall be subject to review thereafter. The appointment may be extended for six months or confirmed to retiring age at the discretion of the University Council”

5^th Defendant then went on to submit that the confirmation of appointment is not automatic but discretionary as stated in Exhibit DC; citing the case of AHARANWA V. PEOPLES BANK OF NIGERIA LTD & ANOR. (2018) LPELR – 43 985 (CA) where it was held by the Court of Appeal that where the words of a contract, agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. And the case of BOARD OF MANAGEMENT OF FEDERAL MEDICAL CENTRE, MAKURDI V. KWEMBE (2015) LPELR – 40486 was also cited in support.

The 2^nd and 6^th Defendant in the argument on the first issue they formulated for determination: whether the Defendants were right when it acted in accordance with the terms and conditions of service obtainable in other Federal Universities when it terminated the appointment of the Claimant. Here, the 2^nd and 6^th submitted that a careful look at Defendants submitted that a careful look at the Claimant’s Statement of Claim and his witness deposition and the Defendant’s Statement of Defence and witness deposition with all Exhibits tendered particularly Exhibit A, the letter of appointment and Exhibit DB1 the letter of termination and Exhibit DC the University of Ibadan condition of service among others. It will be clear that the Defendants were right in terminating the Claimant’s appointment and it indeed followed what is contained in the conditions of service at paragraph 5.1.1 of Exhibit DC which the 5^th Defendant equally relied on. They also went on reproduce paragraphs 5.1.2 which deals with grounds for confirmation to retrieving age after initial period of three years. And paragraph 5.1.3 which provides:

“Appointment not confirmed at the expiration period would mean the services of the staff concerned are no longer needed and the affected member of staff accordingly informed immediately”

COURT’S DECISION

Having gone through the main arguments and submissions of all sides on the issues whether the confirmation of the Claimant could be deemed after 2 years. And whether the Defendants followed the law i.e. laid down rules governing the appointment of the rules governing the appointment of the Claimant into the 6^th Defendant. In coming to a decision it is only proper to be guided by some facts which became apparent and established in the course of the hearing.

It is a fact that the Claimant was never formally confirmed and he admitted this fact under cross examination.
Confirmation of appointment usually comes about after two years, DW1 who also testified as DW2 admitted under cross examination that his appointment was confirmed some few months after the two years probationary period.
It is clear from the Exhibits before me that the Defendants relied on both Exhibits D and DC i.e. the University of Ilorin and University of Ibadan conditions of service as it was enabled to do so.

Exhibit A the Claimant’s letter of appointment of 27^th August, 2013 had stated in the last sentence of the first paragraph that “The Salary and other conditions of service are the same as in other Federal Universities.”

Exhibit CA2, CA3 and CA4 a three page letter tendered by the Claimant dated 30^th November, 2015 written to 5^th Defendant, Honourable Minister of Interior headed Confirmation of Appointment for Academic staff of the Nigeria Police Academy, Wudil; reads in its three main paragraph:

“1. It is customary and in line with the provision in the Public Service Rules that appointment of staff on permanent and pensionable basis are confirmed or terminated after two years. The first category of the academic staff of the Nigerian Police Academy, Wudil, Kano who assumed duty in September, 2013 are due for confirmation.

Accordingly, the respective Heads of Department of the staff have submitted recommendations on each staff for confirmation of their appointments or otherwise based on their performance and disciplinary records. The attached Annex contains the list of all academic staff who have been recommended for the confirmation of appointments; while Annex B is the list of those who have not been recommended for confirmation due to unsatisfactory performance and/or poor disciplinary records.
Consequently, the Honourable Minster is requested to please approve the confirmation of the appointment of 120 staff listed in Annex A and disengagement of six (6) number of staff listed in Annex B . . .”

The letter was signed by the Coordinator.

At Annex B, marked as Exhibit CA4, the name of the Claimant appears at number one amongst the six not recommended for confirmation with the remarks stated as; unsatisfactory performance. This was as at the 30^th of November, 2015 when the letter was written to the 5^th Defendant.

Exhibit DB1 the letter of termination written to the Claimant dated 7^th September, 2016 reads:

“I reference to your letter of appointment No: NPA/OCPA/016 dated 27^th August, 2013. On behalf of the Management, I write to inform you that your appointment with the Nigerian Police Academy Wudil as Lecturer II is terminated with effect from 7^th October, 2016 on grounds of services no longer required. This is sequel to the Honourable Minister of Interior’s approval vide letter with Reference No: MPA/LU/ABJ/1092/2016/14 dated 20^th July, 2016. The period 8^th September, 2016 to 7^th October, 2016 serves as one month termination notice. By this, you are required to hand over all Academy properties in your possession including staff I.D card to your HOD . . .”

The Registrar signed for the Management.

Now, the Claimant also tendered Exhibit C his letter to the Defendants through several Heads of Department on the request for the confirmation of his appointment dated 21^st September, 2016. The Claimant also tendered Exhibit E1 headed Departmental APER form Committee dated 23^rd November, 2015. In that letter the Claimant was named among four committee members. Also were Exhibit A1 – A6 a six (6) page Annual Performance Evaluation report form for academic staff dated from 1^st October, 2014 to 30^th September, 2015.

Now, a reading and even re-reading of these Exhibits go to show the following:

The Defendants had written to the 5^th Defendant Exhibit CA2 to CA4 which contained the name of the Claimant being one of those who was not to be confirmed as at 30^th November, 2015 about 3 months after the 2 years probationary period.
It took another 8 months for the Minister of Interior to respond in the letter Reference No: MPA/LU/ABJ/1092/2016/14 dated 20^th July, 2016. Now, the Claimant had also written Exhibit C to the Defendants dated 21^st September, 2016 requesting for the confirmation of his appointment. A few days from then, on the 7^th of September, 2016 his termination letter had been written to him barely 2 months after the 5^th Defendant approved the non-confirmation which put the Defendants in the clear to terminate the Claimants appointment.
Given the sets of facts above between 30^th November, 2015 and the correspondences, the reply of July, 2010 from the 5^th Defendant and when the letter of termination was written on 7^th September, 2016. I cannot in all honesty hold the 2^nd to the 6^th Defendant liable in any way for keeping the Claimant up till 7^th September, 2016 in its employ. Because they had already indicated to the higher approving authority, the 5^th Defendant Minister of Interior in Exhibit CA2 to CA4 that they were not going to confirm the Claimant’s appointment as at 30^th November, 2015. It is possible given the correspondences between the Claimant and the Defendants, the 2^nd and 6^th Defendants might have terminated the Claimant’s appointment at an earlier date.

It is for the above reasons that I cannot agree with the Claimant that the appointment of the Claimant can be deemed to have been confirmed. I find here and do hold right away that there is no evidence of such an intention to confirm, the evidence in this case suggest otherwise. To this extent, I hold that the facts in this case are distinguishable from those in the cases of OBAFEMI AWOLOWO UNIVERSITY V. DR A. K. ONABANJO (Supra) and DR ADEWUMI RAJI V. O.A.U (Supra) see a contrary decision of the Supreme Court in IHEZUKWU V. UNIJOS & ORS (1990) LPELR – 146 (SC). I am in agreement with the submissions of the 2^nd and 6^th Defendants and the 5^th Defendants on this first issue formulated by the Claimant. The issue whether the Claimant’s appointment has not been deemed confirmed is therefore determined against him.

As to the 2^nd issue: whether the Claimant’s appointment was validly terminated by the Defendants having regard to the statutory regulations regulating his appointment. Here, the Claimant had argued amongst others that in order to justify dismissal or termination of appointment of an employee, the employer must be in a position to prove to the Court’s satisfaction that the employee was given a fair hearing, that the employer believes that the employee committed an offence.

I hold right away on this that none of these conditions or rights accrued to the Claimant given the facts and circumstances of this case in which he was a staff of the Defendant whose employment could not have been deemed as confirmed. In short he was a staff on probation. In the case of AL – BISHAK V. NATIONAL PRODUCTIVITY CENTRE (2015) LPELR – 24659 at page 40 – 41 cited by the 5^th Defendant in its reply on points of law it was held by the Court of Appeal:

“That an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporary during the period of probation hence the process of his removal is not subject to strict adherence to rules as is the case of a confirmed officer. That is why the rules or even Exhibit P1 provided for one month’s notice of termination of appointment on both sides. Thus, in the case of IGWILO V. C. B. N. (2000) 9 NWLR (PT. 672) 302, it was held that, ‘In the termination of the appointment of an officer on probation, no procedure need to be followed provided there is satisfaction that there is good cause for termination . . .”

I hold that I am persuaded by the decisions of the higher Courts in the 2 cases mentioned here. I find and do hold that the Defendants did not have to follow the procedure reserved for a confirmed staff in terminating the Claimant in the way they did. The 2^nd issue is equally determined against the Claimant as holding otherwise would be tantamount to forcing a willing employee on an unwilling employer which the law frowns at. See ISIEVWORE V. N. E. P. A. (2002) 7 S. C (PT 111) 125 at 133 – 134 per Onu JSC.

On the whole, the claims of the Claimant fail in their entirety and are consequently dismissed. There are no awards as to costs, parties to bear their own cost.

Judgment is entered accordingly.

___________________________

HON. JUSTICE E. D. E. ISELE

JUDGE