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National Industrial Court

Dr. AbubakarAliyuBafeto -VS- Federal University Kashere

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IN THE NATIONAL INDUSTRIAL OF COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI

 

Dated: July 11, 2019                                    SUIT NO: NICN/JOS/46/2016

 

BETWEEN:

  1. ABUBAKAR ALIYU BAFETO                         –           CLAIMANT

 

AND

 

FEDERAL UNIVERSITY KASHERE                                     –           DEFENDANT

REPRESENTATIONS:

A.A. Sangei with D.G. Hassan, H.M Abdu, I.H. Abdullahi. S. Danjuma, Aisha Sani and E.R. Ochinyabo for the Claimant

  1. B. Ghide with E. Eghosa for the Defendants

                                                        JUDGMENT

INTRODUCTION

The Claimant commenced this case by a writ of summons dated 22nd December, 2016and statement of claim dated 15th December 2016 but filed on 22nd December, 2016. The claimant claimed against the defendants as follows:

  1. a)A declaration that the Defendant’s letter dated 31st October, 2016 terminating the Claimant’s appointment with the Federal University, Kashere, the Defendant is unconstitutional, unlawful, null and void.
  2. b)A declaration that the Claimant is still in the employment of the Defendant.
  3. c)An Order directing the Defendant to pay and continue paying the Claimant all his salaries, allowances and other entitlements/benefits attached to his employment from 31/10/2016.
  4. d)An Order of perpetual injunction restraining the Defendant, Federal University, Kashere its agents and or privies from interfering with the rights of the Claimant’s employment as guaranteed by the 1999 Constitution as amended.
  5. e)Cost of this action

The Defendant filed their Memorandum of Appearance and Statement of Defence dated 16th January 2017 but filed 23rd January, 2017 and the Claimant filed his Reply to the Statement of Defence dated 6th December, 2017.

FACTS

The brief facts of this case according to the claimant are that he was appointed the Registrar of the Defendant for a fixed period of five years with effect from 16/2/2011(exhibit CA). That he was accused of gross misconduct which allegation was not brought to his knowledge by the Defendant.  That he embarked on sabbatical leave at the Gombe State University, Gombe which the Defendant is supposed to be paying him his salaries while on the sabbatical leave. That the defendant wrongfully terminated his appointment without affording him a fair hearing in other toavoid paying him his said entitlement on sabbatical.

On the other hand, it is the case of the Defendant that it never accused the Claimant of any wrong doing nor set up any committee to try the Claimant.Rather, it was the Federal Ministry of Education who appointed him as the Registrar of Defendantthat set up a fact-finding committee to investigate the allegation of wrong doing labelled not only against the Claimant but on some principal officers of some Federal Universities (the Defendant inclusive). That the claimant was found guilty of gross financial misconduct bygranting himself a special revolving loan of N10,000,000 and N30,000,000 the former Vice Chancellor, with a repayment period of ten years knowing that both of them were not permanent staff and did no transfer their services to the defendant. where upon disciplinary action was recommended against him by a panel set by the Federal Ministry of Education which resulted in the termination of his appointment. That the defendant only complied with the directives of the said Federal Ministry of Education to implement its recommendation but instead of dismissal which is the recommended punishment the defendant gave a lesser punishment of termination.

TRIAL

 Trial commenced on 3rd December, 2018, the Claimant testified for himself as a sole witness (CW1) by adopting his two witness statements on oath dated 22nd December 2016 and 17th January 2018 respectively. He tendered six (6) documents in support of his claim which were admitted in evidence and marked thus:

  1. Letter of Appointment CA
  2. Letter of Termination CB
  3. Rules and Regulations CC
  4. Letter 14/9/2015 (Extracts of Meeting) CD
  5. Extracts OF Meeting CE –CE3
  6. Last Payslip of Claimant CF

He wascross examined.Under cross examination, witness stated that by paragraph 2 of Exhibit CA (Letter of Appointment) his fixed period of appointment was for 5years and the anniversary of the 5years was 15/2/2016. Witness stated that by Exhibit CB (Letter of Termination) he ceased to be the Registrar of the defendant by effluxion of time and that he was paid one-month salary in lieu of notice (Exhibit CF). Thereafter he closed his case.

On 4th February 2019 Defence opened their case and called AlhajiKabiruGarbaAminu (DW1). Witness identified his witness statement on Oath dated 23/1//2017 and adopted same as his evidence in the trial. He tendered five (5) documents which were admitted in evidence and marked thus:

  1. Letter of Directive from Federal Ministry of Education 9/9/16 DA
  2. Letter of Directive 9/9/2016 DB
  3. Letter of Directive 6/12/2016 DC
  4. Action Required 10/12/2016 DD – DD31
  5. Conditions of Service(Rules & Regulations) DE – DE100

Under cross examination witness stated that he became a Registrar in August 2016, and that by that time the tenure of the Claimant as Registrar has ended but he was on Sabbatical. That during sabbatical the defendant was obligated to pay all the Salaries and entitlements of the Claimant up to the date of his termination. That from the date of the Claimant’s termination to the date of ending his Sabbatical is 3months. That from the Rules and Regulations of the defendant the Claimant’s employment ought not to have been terminated except if he commits an offence warranting termination of employment.

Witness testified further that some staff wrote a petition to the Federal Ministry of Education, the ministry thereafter constituted a panel that investigated the offence and now gave directive to the school to implement. That the offence was of gross misconduct. That the Claimant collected a loan from the school knowing full well that he cannot repay within the period of his tenure. Witness stated that he is aware that by June 2016 the Claimant repaid the loan fully but the committee was constituted in December 2015 and they concluded their assignment in February 2016, by that time the Claimant had not repaid the loan. That he is not aware if the committee took into cognisance the fact that the Claimant was entitled to his entitlement and fringe benefits when leaving the service of the defendant.  Thereafter witness was discharged.

Defendant calledits second witnessMALLAM AUWAL (DW2). Witness identified his witness statement on oath dated 23/1/2019 and adopted same as his evidence in the trial.

Under cross examination, witness stated that his designation with the defendant is Chief Accountant, and that he knows the Claimant who was their Registrar. That the Claimant took a special loan of N10, 000, 000 and that the means of repayment was meant to be from his salary and entitlement. That the period of the Claimant’s service and secondment was 5years. That he repaid the loan at the point of his exit through his salaries and entitlement. Witness was discharged and the defendants closed their case on 4th day of February 2019. Thereafter the parties were ordered to file and exchange theirfinal Written Addresses.

In his final written address, the learned counsel for the Defendants raised two (2) issues for determination by this Honourable court to wit-

1)     Whether or not having regards to the pleadings and evidence led (Exhibits inclusive) before this Honourable court, the Claimant’s claim is not an abuse of court process?

2)     Assuming but not conceding that the Claimant’s claim is not an abuse of court process, whether or not having regard to the pleadings and evidence led before this Honourable Court, the Claimant is entitled to the reliefs sought?

On issue one,counsel submitted that the claimant’s claim before this Honourable court is a clear case of an abuse of court process.Counsel referred to the case ofR-Benky Nig. Ltd. v Cadbury Nig. Ltd (2012) 5 SCM 200  @:203-204 ratios 2 and 8 where Adekeye, J.S.C opined thus

“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice. d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness. f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of court process.

Counsel submitted that applying the above principles of law to the case at hand, this case is an abuse of court process for the under mentioned reasons:-

Firstly, the Defendant is not the proper person or party to be sued: there was no basis for the filing of this claim against the Defendant since-

  1. a)It was not the defendant that employed the Claimant into its service but the President of the Federal Republic of Nigeria through the Federal Ministry of Education. Paragraph 1 of Exhibit CA
  2. b)It was not the defendant that set up the facts finding committee that indicted the Claimant for gross misconduct which led to the termination of his appointment Exhibit DA, DB, and DC.
  3. c)That the termination of the Appointment of the Claimant was directed by the Federal Ministry of Education, the defendant only conveyed the message in compliance with the directive of the Federal Ministry of Education. Paragraphs 1 and 2 of Exhibit CB (Claimant’s Termination of Appointment Letter), Exhibit DA and DB (Letters of 9/9/2016 addressed to the Pro-Chancellor and Vice Chancellor respectively) directing the Defendant’s Council to implement the Recommendations of the Facts Finding Committee set up by the Federal Ministry of Education as it/they affect the Defendant and Exhibit DD-DD31 page 2 Columns 1, 2, 3, 4 and 5 as it relates to the Claimant.

Counsel submitted that the proper party to be sued ought to be the Federal Ministry of Education as the Defendant and not the Defendant sued herein, since the basis of the Claimant’s contention is borne out of the recommendation and directives of the Federal Ministry of Education.

That the law is well established that the claimant has a duty to bring to Court a party whose presence is crucial to the resolution of the case. That it was held in the case of Chief Maxi Okwu& Anor v. Chief Victor Umeh&Ors (2015) LPELR-26042 (SC) on the legal effect of non-joinder of necessary party by Okoro JSC thus:

…. However, while it is the law that no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party, yet in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which will affect a stranger to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the instant case, there is no way the question posed by the appellants for determination would be effectually and completely answered in the absence of APGA, the ultimate beneficiary of the outcome of the decision. Also, without APGA as a party, the reliefs sought would not have any effect as APGA cannot be bound by an order of a Court in a matter it was not a party. This is, sadly, the lot of this case. See Olawoye V. Jimoh (2013) 13 NWLR (pt. 1371) 362, NDP v. INEC (2013) 6 NWLR (pt. 1350) 392.

The end result of what I have said above is that although the trial Court had the jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of APGA, including its leadership, cannot be allowed to stand. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be foolhardy not to join him in the suit. In fact, it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.”

Counsel submitted that based on the above position of the law to the case at hand the absence of the Federal Ministry of education as a party in this suit is fatal. This is so because the genesis of the Claimant’s case originated from the investigation of an allegation of misconduct by the Facts Finding Committee set up by the Federal Ministry of Education and its subsequent recommendation and directive for the termination of the Claimant’s appointment. And that any decision made By this Honourable Court declaring the termination of the Claimant’s appointment as null and void goes to the roots of the action of the Federal Ministry of Education and without joining the Ministry as a party it rendered the order of this Honourable Court an exercise in futility as the Ministry of Education was not given an opportunity to defend the justification or otherwise of its findings, recommendation and directives to the Defendant which is being challenged by the Claimant.

Secondly that the Claimant’s action is premised on frivolity or recklessness and he adopted the system of forum-shopping in the enforcement of his conceived right. This is anchored on the basis of the Claimant’s oral testimony under cross-examination and the content of Exhibits CA and CB.

Counsel submitted that the Claimant admitted under cross examination that by the content of Exhibit CA, his tenure of appointment was for single term of five years with effect from 16th February, 2011 and his tenure of office has ended by effluxion of time on 15th day of February, 2016 even before his appointment was terminated. And that by Exhibit CF a month’s salary has been given to him in lieu of the one (1) month notice less the loan deducted from his entitlements.

That the question now is, since the Claimant has admitted that his tenure of office has ended by operation of time, then what are the basis of his claim as contained in paragraph 11 (a)- (d) of his Statement of claim? That the simple answer is that the Claimant is window shopping, a gold digger, making a wild goose chase. That the suit is an academic preposition and abuse of court process, no useful purpose would be served by it. And that the law is settled that courts are not set up to engage its precious judicial time in academic exercise.

In conclusion, counsel submitted that the Claimant’s claim against the Defendant in this case is an abuse of court process and is a suit filed for mere academic exercise, counsel urged the court to resolve issue one in favour of the Defendant against the Claimant and dismiss this suit.

On issue two, that isassuming but not conceding that the Claimant’s claim is not an abuse of court process, whether or not having regard to the pleadings and evidence led before this Honourable Court, the Claimant is entitled to the reliefs sought?

Counsel submitted that the answer to this question is an absolute “no”. That the Claimant is not entitled to reliefs sought by him as endorsed on his writ of summons and paragraph 11 of the statement of claim. That this is premised on the fact that the claimant has failed woefully in establishing and/or proving his claims against the Defendant on the balance of probability or preponderance of evidence as required by law.

Counsel submitted that in a suit related to contract of employment the law ascribed that, the employee who is complaining that his employment has been wrongfully terminated has the onus:-

  1. a)To place before the court the terms of employment and,
  2. b)To prove in what manner the said terms were breached by the employer

That it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.

Counsel further submitted that while adopting the reasons advanced in support of the first issue for determination to prove that the Claimant has not established his Claims on preponderance of evidence, submits further based on the facts, pleadings and evidence led by the Claimant before the Honourable Court that:

1)     The claimant has not led evidence through CW1 nor through exhibits tendered to establish that the termination of his employment was wrongful for the following reasons: –

  1. a)The Claimant did not establish it was the defendant that set up the facts finding committee that indicted him leading to the termination of his appointment.
  2. b)The termination of the appointment of the Claimant was based on the directive given by the Claimant’s employer as contained in Exhibit DB1, DD-DD31.
  3. c)The termination of the Claimant’s employment was done in accordance with the terms and conditions of his employment as contained in Exhibit CA
  4. d)The contents of Exhibit CF, the one month salary in lieu of notice has been paid less the amount for the loan which he took and the law allows the defendant to deduct it. Counsel relied on the case of Lewis v. United Bank for Africa (2016) 1 S.C.N.J (pt.1) p.68 at 84-85.
  5. e)By the provision of Section 3.3.7 (iv) of the Rules and Regulations Governing the Condition of Service of the Defendant, leave grants or sabbatical leave allowances are only payable to Professors and not to doctors. And by the evidence of the claimant (CW1), he admitted under cross-examination that he is not a Professor and has never claimed to be one.
  6. f)That the Claimant’s employment was for a fixed time, that is, a five year period. So even if the employment of the Claimant was not formally terminated, by the content of Exhibit CA his tenure of office has ceased to exist by operation of time since the 15th day of February 2016. By this alone, he ought not to have been paid anything. The defendant was even gracious  and merciful to the Claimant by paying him one month salary in lieu of notice as confirmed by the Claimant himself under cross-examination as well as Exhibit CF.

That the law is trite that, where a contract of service is for a fixed time, that contract is determined by the expiration of the agreed term stated in the letter of employment without prejudice to the right of the employer to terminate the employment before the expiration or during the period of the term contracted on grounds of misconduct or where the employer or employee dies. Counsel referred to the cases of S.S.C Ltd v. Afropak Nig. Ltd (2008) vol 164 LCRN pg 36 at 58 para UEE; Igbe v. Governor of Bendel State (1983) 2 SC page 14; Swiss Nig. Wood Industries Ltd v. Bogo (1970) NCLR page 423.

Counsel submitted that assuming but not conceding that the Claimant’s employment was wrongly terminated, reliefs A-E as endorsed on his writ and paragraph 11 (a-e) of his statement of claim cannot be granted by this Honourable Court for these following reasons:

  1. a)Reliefs A, B, C and D are urging the Court to compel an unwilling employer (Defendant in this case) to retain a worker (Claimant) in its employment. And  the law is trite that, the court would not compel an unwilling employer to retain any worker his/her/its service.
  2. b)Similarly, an employer is not bound to give any reason for terminating the employment of a servant.
  3. c)It is equally the law in a long line of authorities that, in contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, as in this case, the only remedy available to an employee whose employment is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end.

On the above mentioned principles counsel relied on the cases of Ativie v. Cabel Metal Nig. Ltd. (2008) 164 LCRN Pg 71 at pg 84 para FP; 88 para EE – JJ; Kato v CBN (1999) 6 NWLR (pt 607) pg 890 at 906; Western Nigeria Development Corporation v Abimbola (1966) 4 NSCC pg 172, Noble Drilling (Nig) Ltd. v. Edemekong (2010) All FWLR (pt. 540) p.1377 at 1385 paras B-C where the Court held in the last case thus:-

“in a claim for wrongful termination of employment where there is a written provision for terminating the contract of employment, and there is a breach of the written provision, what the employee would be entitled to would be the salary for the period of the notice to terminate the employment of the employee. (Araromi Rubber Estates Ltd. v. Orogun (1999) 6 NWLR (Pt. 607) 390; Western Nigeria Development Corporation v Abimbola (1966)1 All NLR 159; referred to…”

 

Counsel submitted that applying these laws to the case at hand, that the Claimant’s employment was not wrongly terminated. In the event the Honourable Court sees it otherwise, the Claimant has no basis to complain since the Defendant has terminated his employment in accordance with the terms and conditions of service as contained in Exhibit CA of payment of one month’s salary(Exhibit CF) which he admitted.

In conclusion counsel urged the Court to enter judgment in favour of the Defendant against the Claimant by dismissing the suit in its entirety with cost.

In his own final written address, the learned counsel for the claimant, raised a sole issue for determination for the court to wit-

Whether or not the Claimant, in view of the entire circumstances and evidence adduced before this Honourable Court, have proved his case and is entitled to the judgement of this Honourable Court.

In arguing this lone issue, Counsel submitted that this Honourable Court is humbly urged to enter judgement for the Claimant in terms of his claim in its entirety. That the Claimant gave cogent, credible, reasonable and consistent oral and documentary evidence. That the Claimant did not commit any form of misconduct in contravention of the Rules and Regulations Governing the Conditions of Service of the Defendant.

Counsel submitted that even the witnesses of the Defendant conceded that the Claimant took a loan which was to be repaid through the salary/benefits or entitlement of the Claimant or any other source of the Claimant. That the Claimant repaid the loan before or at the expiration of his tenure as the Registrar of the Defendant.That the Claimant’s entitlements/salary/benefits were computed/assessed after the loan was deducted and the balance of over N10,000.00 was paid to the Claimant.

Counsel submitted that the action of the Defendant and its new officers including DW1 in terminating the Claimant’s appointment when he was about completing his work on Sabbatical Leave is only plannedto deprive the Claimant from his salaries/entitlements/benefits when he was conducting his services as permitted by the Rules and Regulations Governing its Conditions of Service. Counsel referred to pages 72 to 74 of Exhibit DE-DE100 (Conditions of Service (Rules & Regulations)). 

In summary, counsel urged the Honourable Court to enter judgement for the Claimant in terms of the reliefs sought herein. This is because:

  1. a)The documentary evidence and oral testimonies of the witnesses called by the Claimant is cogent, credible, reasonable and consistent.
  2. b)That even the evidence of the Defendant’s witnesses supports the Claimant’s reliefs.
  3. c)The action of the Defendant and its new officers including DW1 in terminating the Claimant’s appointment when he was about completing his work on Sabbatical Leaveis only planned to deprive the Claimant from his salaries/entitlements/benefits when he was conducting his services as permitted by the Rules and Regulations Governing the Conditions of Service of the Defendant.
  4. d)The Claimant did not commit any form of misconduct in contravention of the Rules and Regulations governingthe Conditions of Service of the Defendant.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that, 67the sole issue raised by the learned counsel for the claimant summarized the issues in controversy between the parties. I hereby adopt it as mine; consequently, I shall treat the claims of the claimant seriatim as follows:

Claim 1, is fora declaration that the Defendant’s letter dated 31st October, 2016 terminating the Claimant’s appointment with the Federal University, Kashere, the Defendant is unconstitutional, unlawful, null and void and claim 2, is fora declaration that the Claimant is still in the employment of the Defendant.Both of them shall be treated together.

There is no dispute that by exhibit CA, the claimant was appointed the Registrar of the defendant for ‘a single term of five years with effect from 16th February, 2011’. The claimant admitted under cross examination that the five years anniversary of his appointment was on 15th February 2016. Meaning that the appointment of the claimant ran its full course and terminated or exhausted fully by effluxion of time, after mid night onthat 15th February 2016it seizes to exist.

From the foregoing, the simple question to ask here is; which employment was then purportedly terminated by the letter of termination authored and, or dated the 31st October, 2016(exhibit CB) the bone of contention of this case?The answer is simple. It certainly cannot be the appointment of the claimant which seized to exist on that 15th February 2016. This exhibit CB therefore goes to no issue. The maxim is “ex nihilio nihil fit” from nothing comes nothing as expressed in the case of UAC v Macfoy(1962)AC152, something cannot be placed on nothing and be expected to stand.It willcollapseand crumble, having no base to rest see Aliyu v Bulaki(2019)LPELR 46513(CA). Consequently, claim one has succeeded and the reverse is that claim 2, has failed since there is no longer an appointment of the claimant remaining to be protected.

While claim 3 is fororder directing the Defendant to pay and continue paying the Claimant all his salaries, allowances and other entitlements/benefits attached to his employment from 31/10/2016, claim 4 is foran order of perpetual injunction restraining the Defendant, Federal University, Kashere its agents and or privies from interfering with the rights of the Claimant’s employment as guaranteed by the 1999 Constitution as amended. The Court has found out and held that the appointment of the claimant ran its full course and terminated or exhausted fully by effluxion of time, after mid night on that 15th February 2016; it seizes to exist. Both claims are naturally bound to fail, consequently they have failed.

In sum, this suit has partly succeeded. I hold and make the following orders:

1)I declare that the Defendant’s letter dated 31st October, 2016 terminating the Claimant’s appointment with the Federal University, Kashere, (the Defendant) is unconstitutional, unlawful, null and void and hereby set aside.

2) All the other claims have failed and are hereby dismissed.

3) Parties shall bear their costs of this suit.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge).

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