IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 21st MAY, 2019 SUIT NO: NICN/IL/02/2017
BETWEEN
DR. AYOTUNDE ALAO ………………….CLAIMANT
AND
1. KWARA STATE UNIVERSITY MALETE
2. KWARA STATE UNIVERSITY GOVERNING
COUNCIL ………………..DEFENDANTS
3. PROF. ABDULRASHEED NA’ALAAH
(The Vice Chancellor, KWASU)
REPRESENTATION:
Y.A. Dikko with him are O.D. Kuranga, Y. A. Alajo, Olayemi Hudonu-Johnson for the Claimant.
Yakub Dauda with him are A.O. Obayomi, A. M. Salman, Tajudeen Shogo, Miss R.T. Bamigboye, Miss D.L. Olonuma, Sr. M.T. Adekilekun for the Defendants
JUDGMENT
The Claimant commenced this suit against the Defendants on the 7th February, 2017 vide a General Form of Complaint. It is the case of the Claimant by his sworn deposition which is in tandem with his pleadings filed on the 26th June, 2018 that he holds a Doctorate Degree in Mass Communication and he joined the services of the 1st defendant on the 10th July, 2014, his offer of temporary appointment was regularized by the defendants on the 6th May, 2016. That he is also a strong member of the Local Branch of Academic Staff Union of University of the 1st defendant. It is his further testimony that on many occasions he vented out his disenchantment about the suppression of the labour union in the 1st defendant’s institution by the 3rd defendant. That however in 2015, he alongside five (5) other officers of the Local Chapter of ASUU were suspended by the 3rd Defendant for their participation in union activities in the 1st defendant and the order of suspension was later lifted upon the intervention of the Governor of Kwara State who is the visitor to the 1st defendant. He stated further that sometimes in August 2016, he was invited verbally to the office of the Head of department by a Lecturer-Colleague, one Dr. Isiaka Aliagan for an “Interactive Session” which he attended and the matters raised in the meeting were laid to rest but he however wrote a letter dated 24th August 2016 challenging the said invitation. That however on the 20th September 2016, he was also invited through an SMS message sent upon the directive of the Registrar of the 1st defendant to appear before the Senior Staff Disciplinary Committee (SSDC) on allegations of extortion, threat to a student’s life and indecent conduct which he denied vehemently before the Committee. It is his statement that none of his allegers /complainants (the students) were present before the Committee and he never heard of any other thing or development until the termination letter dated 10th October, 2016 was served on him. It is his contention that the proceeding before the SSDC did not comply with the extant laws and the rules and regulation of the 1st defendant and the entire process leading to his termination falls short of the requirement of the law and that he was not afforded fair hearing before the unlawful termination of his appointment hence he is entitled to be reinstated and that he appealed to the defendants to reverse their decisions which they refused to. That it is consequent upon this that he instructed his counsel to give a month notice of intention to approach the Court and seek redress. He continued that he was expected to retire in 2048 when he would have clocked 65 years and as such he is due to take his salary, allowances and other emolument for the remaining period he would be in service as well as pension and gratuity and that in the event that he is not reinstated, he is entitled to compensation for loss of earning which is to be calculated from October, 2016 till December, 2048, that his salaries and emolument for the said period is N137,108,721.56 which he said are derived from Recommended Consolidated University Academic Salary Structured (CONUASS).
It is consequent upon this that he claims against the defendants the following reliefs:
1. A Declaration that the termination of employment of the claimant as contained in the letter dated the 10/10/2016 written by the defendants is illegal, wrongful, null and void and of no effect whatsoever having been done in contravention of Section 8 of the University condition of service and regulation and the rules of fair hearing.
2. An Order of this Court reinstating the claimant as lecturer II in the 1st defendant’s University without prejudice to his promotion, salaries and other entitlements.
3. An Order of the Court directing the defendants to pay the claimant’s salaries and entitlement from the time of the termination until he is reinstated.
ALTERNATIVELY
1. A Declaration that the claimant is entitled to damages in form of loss of earning for unlawful termination of the appointment by the defendants in forms of loss of earning with effect from 10th October, 2016 till December, 2048 when he is due to retire from service in accordance with the condition of service governing his employment.
2. An Order of this Court directing the defendant to pay a calculated sum of N137, 108,721.56 as damages for the abrupt termination of the carrier in the form of loss of earning.
3. An Order of this Court directing the defendants to pay a sum of N10,000,000.00 to the claimant as damages for psychological and emotional trauma and agony which the action of the defendants have occasioned to the claimant.
The defendants on the other hand in their Statement of Defence filed on the 3rd April 2017 stated that they intend to challenge the competence of this suit on the ground that this Court lacks the jurisdiction to entertain this suit, and that the suit has not disclosed a reasonable cause of action against them. Also, that the action constitutes a gross abuse of Court process and it is statute barred by virtue of the provision of Section 2(a) of the Public Officers Protection Act. They contended also that the claimant failed to exhaust the internal mechanism of the 1st defendant for dispute resolution before approaching the Court. Furthermore, they averred that the claimant was found wanting of his employment as a staff of the defendants to maintain a high moral standard, unblemished integrity and good conduct in the discharge of his duties hence he was suspended from duty on the 3rd November, 2017 for acts of misconduct and holding a meeting at Open Theatre without official permission and also harassing and abusing an officer of the 1st defendant performing his lawful duty. That he was recalled from suspension when he was found to be remorseful and also upon his apology to the Vice Chancellor that he would be committed to the sustenance of peace and tranquility vide the letter dated 3rd November, 2015. They went on further that sometimes in 2016, he was involved in the act of misconduct which include extortion, threat and indecent behavior which contravened the rules and regulations contained in the 1st defendant. The defendants continued that he was then invited before an Investigation Panel on the 8th August 2016 and interrogated in respect of the act wherein he admitted some of the misconduct. That subsequently, he was invited again with other persons to a meeting at the DCSO’s office, KWASU Vetting and Surveillance Office on the 24th August 2016 where further investigation was conducted into the matter after which the claimant and the other persons made a written statement. It is the further averment of the defendants that the claimant also appeared before the SSDC on the 21st September 2016 and all the allegations against him were heard, and that moreover, he was afforded an opportunity to make representation for himself and he was held liable for indecent behaviour for which the committee recommended to the 2nd defendant that his appointment be terminated. The defendants stated further that the 2nd defendant considered and approved the said recommendation of the SSDC at its regular meetings dated the 30th September and 6th October 2016 respectively, sequel to which the claimant’s appointment was terminated vide the letter dated 10th October 2016.
At trial, the Claimant gave evidence in support of his case as CW, he adopted his written statement on oath dated 29th September, 2017 as his evidence in this case, he also tendered some documents which were admitted in evidence and marked Exhibits A-A9. The Defendants on the other hand also testified through One Yakub Mubarak Aliagan, he adopted his sworn deposition on oath dated 3rd April 2017 as his evidence in this case, he also tendered some documents admitted and marked by the Court as Exhibit Y-Y7.
In compliance with the rules of this Court, parties caused their Final written addresses to be filed at the close of trial, the defendants filed theirs on the 16th of January 2019 and formulated a sole issue for the determination of the Court, and likewise the claimant who filed his on the 18th February 2019 and canvassed three (3) issues for the Court’s determination. The defendants in addressing some crucial issues raised by the Claimant in his written address also filed a reply on point of Law on the 25th February 2019; pertinent parts of all the arguments and submissions would be referred to in the course of writing this judgment.
I have careful read and considered the processes filed by parties and supporting documents, their respective written submissions canvassed by both learned counsel; it is in my considered view that the issues that would meet the justice of this case are:
Whether or not this suit is competent as constituted;
Whether or Not the Claimant has proven his claims to be entitled to the reliefs sought?
The Claimant’s grouse for which he took out a Complaint before this Court is that the termination of his appointment vide the letter dated 10th October, 2016 (Exhibit A4) from the services of the 1st defendant on the allegations of extortion, threat, and indecent behaviours is unlawful, it is his contention that the allegations against him was unsubstantiated with credible evidence and that upon his appearance before the Senior Staff Disciplinary Committee (SSDC) of the 1st defendant, he was not given ample opportunity to make proper representation for himself, he stated further that treatment meted on him by the defendant is unfair. The Defendants on the other hand stated that the Claimant misconducted himself in a manner which contravenes the Condition of Service of the 1st defendant hence he was invited before an investigation panel and also the Senior Staff Disciplinary Committee (SSDC), that he was afforded an opportunity to defend himself but was found culpable of the allegations levied against him as such the 2nddefendant considered and recommended to the SSDC at its regular meeting that the Claimant’s employment be terminated which was done vide the letter dated 10th October, 2016.
There is no gainsaying the fact that the nature of the employment relationship existing between the claimant and the defendants in this suit is statutory employment as evinced by Clause 6 of Exhibit A1. Claimant’s employment is said to be subject to the University’s terms and condition for staff which is the Kwara State University Senior Staff Condition of Service cited as “Conditions of Service and Regulations” (Exhibit A3). It is noteworthy that Exhibit A3 is made pursuant to the Kwara State University Law of 2008 that confirms the claimant’s appointment with the defendants is statutorily flavoured.
Before delving into the substantive suit, I need to deal with some preliminary issues raised by Learned Defence Counsel in his written submission, Firstly, Learned counsel in Paragraph 2.00 of his submission argued that this Court lacks the jurisdiction to entertain this suit, he relied on the locus classicus case of Madukolu v. Nkemdilim [1962] 2 N.S.C.C 374, Elebanjo v. Dawodu [2006] 15 NWLR (Pt.1001) 76. He noted that jurisdiction is to a Court what blood is to a human being, he argued that where a Court embarks on entertaining a case without jurisdiction the result of the exercise no matter how well conducted will be a nullity. Learned Claimant’s Counsel in response in Paragraph 3.02 of his written address argued that the Defendants have however failed to show how the claimant’s case is lacking in jurisdiction as adumbrated in Madukolu v. Nkemdilim Supra. Counsel contended that Learned Defence Counsel did not pin-point the grounds upon which this Court lacks the jurisdiction to entertain this suit; hence the objection of Learned Defence Counsel is insignificant and inconsequential. Learned Defence Counsel continued in Paragraph.3.00 of his written submission that the claimant’s action before this Court is an abuse of Court Process; he opined that the abuse of Court process may lie in both a proper and improper use of judicial process in litigation. He continued that more importantly, an improper use of judicial process will amount to that which is to the irritation and annoyance of the opposing part, he cited the case of Pavex International Company Ltd v. Ibwa [1994] 5 NWLR (Pt.347) 685). Learned claimant’s counsel on the other hand argued that the defendants have failed to show in their submissions how the Claimant’s case constitutes an abuse of Court Process.
It is imperative to state that the preliminary issues raised by the defendants is one that touches on the competency or otherwise of this suit and eventually the jurisdiction of this Court to adjudicate on same. It is settled law that where a jurisdictional issue is raised, it must be considered first, this is because jurisdiction is a radical and crucial question of competence, See the cases of Attorney General Lagos State v. Dosunmu [1989] 2 NWLR (Pt.1 1) 552) at 566, Fumudoh v. Aboro[1991] 9 NWLR (Pt214) 210, IGP v. Andrew [2014] LPELR-22310 (CA). Aero Contractors Company of Nigeria Ltd v. Mr Kingsley Oguine & Ors [2018] LPELR-46764CA. The issue of jurisdiction is very fundamental, it is a threshold matter and it is the life and Spinal Cord of the litigation, the absence of which a suit cannot survive. If a Court has no jurisdiction to determine a case, our case law is replete with plethora of authorities that the proceeding remains a nullity no matter how well conducted. This is so because any defect in competence is not only intrinsic but extrinsic to the entire process of litigation. Since Madukolu v. Nkemdilim, supra was handed down, it has remained a locus classicus as to when a Court is competent to assume jurisdiction to entertain a suit or matter. It is stated clearly therein that a Court is competent when; it is properly constituted as regards members of the bench, and no member is disqualified for one reason or the other; and the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court exercising its jurisdiction, and the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See also the cases of Nduul v. Barr. Wayo & Ors [2018] LPELR- 45151SC; Impersit Bakolori Plc v. A.U.I Motors Division Ltd [2016]1 NWLR (Pt.1492) 27 CA, Rt. Hon Emeka Ihedioha & Anor v. Owelle Rocahas Anayo Okorocha & 36 Ors [2016] 1 NWLR (Pt.1492) 147 SC, SCOA Nig Plc & Anor v. The Registered Trustees of Methodist Church of Nigeria &Anor [2016] LPELR-40191 CA. I agree with the observation of the learned claimant’s counsel that the defendants in their written address only stated the trite position of the law as regards jurisdiction but failed to address the Court on why they alleged that this Court lacks jurisdiction to adjudicate on this case. I find no further argument on this issue, in that the defendants did not substantiate their claim for lack of jurisdiction. All that learned defence counsel stated at paragraph 2.0.4 of his written address is that “We therefore submit that this Honourable Court will only be competent to entertain this matter if and only if none of the identified circumstances is not lacking in the claimant’s case’. Learned counsel unfortunately failed to tell the Court the particular circumstances in Madukolu’s case supra that is lacking in this case for which he would want this Court to refuse to take cognizance of this suit. It will be a disservice to the course of justice for this Court to produce the missing link to the defence argument, or differently put to conjure the circumstances referred to by learned defence counsel for which I can refuse to adjudicate on this case. It is in the light of this that I discountenanced with the argument of learned defence counsel in paragraph 2.00 to 2.04 of his written address.
Respecting the contention of the defence that this suit is an abuse of Court process. The Concept of abuse of Court process is when the process of the Court has not been used bona fide. Where it is characterized by an action initiated without a just or reasonable cause, improper use of judicial process. See the cases of Ndome v. Bisong & Ors [2018] LPELR-44200 CA, Abayomi Fabunmi v. The Registered Trustees Four square Gospel Church in Nigeria [2011] LPELR 9168, Chief Great Ovedje Ogboru & Anor v. Dr. Emmanuel Ewetan Uduaghan & Ors [2013] 12 NWLR (Pt 1370) 33, Senator Alphonsus Uba Igbeke v. Lady Margaret Okadigbo & Ors [2013] 12 NWLR (Pt1368) 225, Comm. Education Imo State v. Amadi [2013] 13 NWLR (Pt1379) p.133 @154, Arubo v. Aiyeri [1993] 3 NWLR (Pt280) 126; Central Bank of Nigeria v. Saidu H. Ahmed &Ors [2001] 5 SC (Pt 11) 146, Chief E.O.I Ojumo & Ors v. Momodu Adalemo & Ors [2010] LPELR-9012 (CA). A law Lord, Nnaemeka Agu JSC (as he then was), captured, graphically, the purports and hall marks of the term in the celebrated case of Saraki v. Kotoye [1992] 11/12 SCNJ (pt.1) 26 at 48-49, in these illuminating words: “The Concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions; its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may be both a proper or improper use of the judicial process in litigation…This will arise in institution a multiplicity of actions on the same subject matter against the same opponent on the same issues…The abuse lies in multiplicity and manner of exercise of right, rather than the exercise of right, per se..”
Flowing from the above, it is fair to ask whether or not the Claimant’s suit constitutes an abuse of Court process? I answer in the negative and on the reasoning of the Apex Court decision in the case of Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd &Ors [2007] 18 NWLR (Pt.1066) 319 where Ogbuagu (JSC) held:
“..the circumstances in which abuse of Court process can arise has been said to include the following:
Instituting a multiplicity of action on the same subject-matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action,
Instituting different actions between the same parties simultaneously in different Courts even though on different grounds,
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
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 Court below
Where there is no iota of law supporting Court Process or where it is premised on frivolity or recklessness. The abuse lies in the inconveniences and inequities involved in the aims and purposes of the action
It is safe to state here that the claimant’s suit does not fall within the purview of the above stated circumstances, moreover, the defendants have equally failed to establish before this Court the reasons why this suit constitute an abuse of Court process. Consequently I discountenanced with the defendants’ argument and find that the Claimant’s suit before this Court does not constitute an abuse of Court Process. I so hold.
It is the further argument of Learned Defence Counsel that the Claimant failed to exhaust the internal mechanism of the 1st defendant for dispute resolution before rushing to Court, he cited Paragraph 8.4 of Chapter 8 of the 1st defendant’s Condition of Service and Regulations for Senior staff which provides that “No staff shall resort to litigation without first exhausting the internal avenues for settling grievances or seeking redress in the University”. Counsel posited that it is not in doubt that the internal avenues a claimant is expected to exhaust in the circumstances is nothing but an appeal to the appropriate authority within Seven (7) days from the date of the occurrence of the act done by the 1stdefendant which the claimant seeks to challenge before the Court. He noted further that the Claimant is expected to appeal to the council of the 1st Defendant against the termination of his appointment and wait for the outcome of the appeal before approaching this Court to ventilate his perceived grievances that where this procedure is not complied with by the claimant, the action is said to be premature, he cited the cases of Prof Greg. I. Anyanwu v. University of Jos [2014] LPELR-22556 (CA), Kayili v. Yilbuk [2015] LPELR-24323 (SC), University of Ilorin v. Oluwadare [2006] 14 NWLR (Pt 1000) 751 @781 to 782. It is the further observation of Counsel that a clear and careful perusal of the Claimant’s statement of fact and documents attached to his processes did not show or allude to the fact that he wrote a letter of appeal to the 1st defendant’s Council for a review of his termination as prescribed by the 1st defendant’s Condition of service and Regulation for Senior Staff (Exhibit A3), he argued that the Claimant by paragraph 37 of his Amended Statement of fact stated that he engaged the services of his Counsel to write a letter of Appeal on or about the 26th day of October , 2016 to the Defendant to revise the termination of his appointment and the said letter was never frontloaded nor tendered before this Court that the only document which bears semblance to the letter of appeal is the Claimant Counsel’s letter dated 2nd November, 2016 and the letter cannot be taken to be a letter of appeal because of the tone of the letter. He argued further that assuming without conceding that the claimant wrote the letter of appeal on the 26th October 2016 as pleaded in Paragraph 37 of his statement of facts, there is however no indication whatsoever that the claimant received any response to that letter. Learned Claimant’s counsel in response to the argument of the Defendants on this issue argued that on the premise of Paragraph 17 of the Statement of Defence, the defendant gave the impression that it is mandatory for the claimant to appeal to the Senior Staff Disciplinary and Appeal Committee or the Council before he can approach the Court on the issue of termination of his appointment and he has failed to make such appeal. It is the contention of learned counsel that there is no single provision mandating the claimant to appeal to the Council or any Committee against termination of his appointment before he can approach the Court, that by Chapter 8(vi) and 8.3 of the Condition of Service and Regulations for Senior Staff (Exhibit A3), what can only be inferred there from is that the Claimant has a right of appeal which he may decide to exercise or waive that it is within his discretion to either take advantage of or waive it. He contended further that there is no such mandatory provision and specific procedure in the laws regulating the Claimant’s employment with the Defendants as regards internal avenues for settling grievances or seeking redress, he added by Paragraph 37 and 38 of the amended statement of fact and the claimant’s solicitor’s letter dated 2nd November, 2016 which was admitted jointly with the letter of termination and the defendant’s letter dated 26th December, 2016 (Exhibit A4), the claimant appealed to the defendant to have his termination reversed, that the said letter was received and replied to by the defendant vide their letter dated 28th December 2016 and jointly admitted with the Claimant’s solicitor letter dated 2nd November 2016 and the termination letter (Exhibit A4).
It is evident by Clause 8(iv) of exhibit A3 that; “A member of staff shall have a right to appeal.” Also Clause 8.3 is to the effect that;
“8.3 APPEAL
A person who is sanctioned for an act of misconduct pursuant to the provisions of the Kwara State University Law may exercise his or her rights of appeal and will have a total of 7 days to file such an appeal.”
Clause 8.4 equally provides that- “No staff shall resort to litigation without first exhausting the internal avenues for settling grievances or seeking redress to the University”. It is manifestly clear that the claimant’s employment with the 1st defendant was determined on the 10th October, 2016 as disclosed in Exhibit A4 based on the allegation of extortion, threat and indecent behavior, it is also apparent that the Claimant instructed his Counsel upon the receipt of the termination letter to write a letter of appeal to the defendants to revise the said termination. By a cursory look at the documents on record, claimant’s Counsel wrote a letter dated 2nd November 2016 where in paragraph 5 he demanded that the said letter of termination be withdrawn by the defendants. The grouse of the defendants is that the letter written by the claimant’s counsel does not have the tone of appeal and moreover it was not received by the defendants. On whether or not Exhibit A4 has the tone of appeal? The Black’s law dictionary 9th Edition, page 113 defines appeal as” to seek review (from a lower Court’ decision) by a higher court.” Basically, the term appeal connotes to apply for the re-examination of the decision reached. Now the appropriate question to ask is, does the content of Exhibit A4 depict that it was intended to appeal to the decision reached by the 2nd defendant? I answer in the affirmative, in view of the fact that the essence of Exhibit A4 was merely to persuade the defendants to restore the claimant to his erstwhile position and in my view within the purview of the provision of Clause 8.4 of the 1st defendant’s Condition of Service (Exhibit A3). On the subordinate issue which is the contention of the defendants that the letter written dated 2nd November 2016 (Exhibit A4) by the Claimant’s counsel was not received by them, assuming but not conceding that the letter dated 2nd November 2016 was not received by them, why then did the defendants respond to the said letter vide the one dated 28th December, 2016, written by one Taoheed O. Oyebode for the Registrar of the 1st defendant, Reference number KWASU/ADM/08/Vol.1. On the flip side a germane question to answer is what is the propriety or otherwise of exhibit A4 dated 2nd of November, 2016 after the statutory requirement of 7 days to appeal? It is obvious that the claimant’s appointment was terminated on the 10th of October, 2016 and that the letter of appeal dated 2nd of November, 2016 is though over the 7 days within which to appeal, which right he has a discretion to either exercise or not. It is however, plain on record that the defendant responded to his letter of appeal, the import of this is that the defendants condoned his lateness in writing the letter. That in my considered view has not in any way affected the exercise of claimant’s discretion to appeal. On the second leg of this issue pertaining to Clause 8.4, I have perused Exhibit A3 and at nowhere have I seen the procedure of exhausting internal avenues for settling grievances or seeking redress to the 1st defendant as the defendants would want this Court to believe. The defendants in this suit cannot claim what it has not provided for. It is in this light that I discountenance with the argument of defendants and dismiss same.
The defence have made heavy weather about this action being caught up by the provisions of Section 2(a) of the Public Protection Law of Kwara State, learned Counsel referred the Court to the termination letter dated 10th October, 2016 (Exhibit A4) and the General Form of Complaint dated and filed on the 7th day of February 2017, that a comparism of both dates discloses that a period of 3 month has elapsed as provided for in Section 2(a) of the Public Officers Protection Law of Kwara State, he cited Dr. Emmanuel Chukwuemeka Nwafor v. Medical and Dental Council of Nigeria [2016] LPELR-41495 (CA) case in support of his assertion, he noted further on the issue that the failure or neglect of the Claimant to approach this Court within the stipulated period of time (3 months) has robbed this Court of its requisite jurisdiction to entertain this suit thereby rendering the claimant’s case as being caught by the statute of limitation, he cited also the case of Fred Egbe v. The Hon. Justice J.A Adefarasin [1987] LPELR-1032 (SC).The learned Claimant’s counsel on his own part vehemently contended that the Claimant’s case is not caught by the provision of Section 2(a) of the Public Officer Protection Law of Kwara Sate in the sense that same was filed within three(3) months from the date of accrual of the cause of action, he opined that for the Court to be able to determine whether a suit is statute barred or not that the processes used in commencing the action that is the Statement of facts and the accompanying processes would be looked at, he made reference to the case of Ogundipe v. Nigeria Deposit Insurance Corporation [2008] FWLR (Pt.432) 1220 at 1239, Paras A-V , Military Administrator Ekiti State v. Aladeyelu [2007] FWLR (Pt.349)1195 at 1218, Para G-H, he argued that a cursory look at the original General Form of Complaint and the accompanying processes before same was amended, leaves no one in doubt that the claimant instituted this action on 7th February, 2017. Also the last relevant event or fact in this case which concluded or completed the cause of action occurred on 28th December, 2016 when the Defendants reacted to the Claimant’s Solicitor’s letter of 2nd November, 2016 vide their letter dated 28th December, 2016, to the claimant, it is therefore beyond doubt that the period between 28th December, 2016, when the cause of action finally accrued and 7th February 2017 when this matter was instituted is less than three months required by the Public Officers Protection Law of Kwara State to make the case statute barred.
Section 2 (a) of the Public Officers Protection Act which law is of general application to this clime and impari materia with the Kwara State Public Officers Protection Law gives protection or cover to all public officers or persons engaged in the execution of public duties, who at all material times acted within the confines of their public duties/powers. Once they however, stepped out of their statutory or constitutional boundary/duty, they automatically lose protection of the law. In other words a Public Officer can be sued after the 3 months limitation period if he acted outside of the scope of his power, or statutory duty. It is trite that generally when a statute prescribes a period within which an action must be instituted, same must be institute within the prescribed period, failing which the action will become otiose. In other words, an action commenced after the expiration in the statute of limitation is not maintainable, Consequently, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for institution such an action has elapsed. See the cases of Eboigbe v.NNPC [1994] 5 NWLR (Pt347) 649 at 659; Odubeko v.Fowler [1993] 7 NWLR (Pt.308) 637, Sanda v. Kukawa Local Government [1991] 2 NWLR (Pt174) 379, Ekeogu v. Aliri [1991] 3 NWLR (Pt.179) 258. A Statute of Limitation such as Public Officers (Protection) Law removes the right of action, the right of judicial relief in a claimant and thus leaves him with bare and empty cause of action which he cannot enforce if the alleged cause of action is found to be statute-barred. In other words, the right to commence the action is extinguished by such law, See the case of Ibrahim v. Judicial Service Commission Kaduna State [1998] 114 NWLR (Pt.583)1, Obiefuna v. Okoye [1961] 1 SCNLR 144. In Araka v. Ejeagwu [2000] LPELR-533 (SC) per Kalgo JSC held among other things that: “Statute barred simply means barred by the provision of the statute, it is usually as to time i.e the bar gives a time limit during which certain action or steps should be taken, one is barred from taking action after the period specified in the statute .Any action taken after or outside the specified limit or period is of no avail and has no valid effect..” In the recent Court of Appeal decision of Adetula v. Akinyosoye & Ors [2017]LPELR-42130 CA where the Court held that ‘the raison d’etre for limitation law are to ginger up aggrieved persons to be vigilante, to discourage cruel actions and to peruse the evidence by which a defendant will defend the action.
The authorities are multifarious in determining whether an action is statute barred. The Courts when faced with the issue of jurisdiction the first point of call in the determination of same shall be the examination of the writ of summons and statement of claim to determine when the cause of action arose. See the case of Ogbdeido v. Osifo [2007] ALL FWLR (Pt. 365) at 566-577, Kwara State Pilgrim Welfare Board v. Alhaji Jimoh Baba [2018] LPELR-43912 SC. A Cause of action is the series of facts that give rise to a legal action and for the purpose of determining the cause of action, time begin to run from the date the cause of action accrues, see the notorious case of Adekoya v. Federal Housing Authority [2008] 4 SC, 167, where the Court held that a cause of action arises the moment the wrong is done to the claimant by the defendant and the wrong which is basis of a dispute represents a factual situation which entitles him to seek redress before this Court. See also Joint Komputer Kompany v The Governor of Lagos State and Anor [2014] 5 NWLR (Pt. 1399) 151; NEPA v. Olagunju [2005] 3 NWLR (Pt 913) 604, Suffice to say that it is the sum total of wrong complained of which impelled an aggrieved person to go to Court to seek redress. It is the bundle of aggregate of fact which the law will recognizes giving the claimant a substantive right to make the claim for the relief or remedy being sought.
Let me now consider the statement of facts as it is trite to do in a case of this nature, claimant in his statement of fact which was later amended on 29th September 2018, averred at paragraph 30 that on the 10th of October, 2016 he was issued with a letter of termination, however by paragraph 37 he stated that on the 26th of October he wrote a letter of appeal to the defendants appealing to them to revise the termination and the defendants responded to it on 28th December, 2016. The grouse of the defendants as stated earlier in this judgment is that claimant was late in approaching this Court. It is imperative at this stage for the Court to consider the intendment of the limitation laws. i.e. what purpose does limitation statute seeks to serve if I may ask?, the answer to this question is found in the decision of the Court in Atunrase v. Sunmola [1985] 1 NWLR (Pt.1) 105 at 120, the appellate Court giving reasons why persons with good causes of action should pursue them with reasonable diligence, stated thus;
In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sic) or abandon his right.” In the case of BOARD OF TRADE v. LAYSER IRVINE & CO. LTD (1927) A.C. 610 at 628, Lord Atkinson said: “The whole purpose of the limitation Act is to apply to person who have good causes of action which they could if so disposed, enforced and to deprive them of power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use.”
See also the case of Addax Petroleum Dev. Nig Ltd v. Emef IBT’L Operation & 2 ORS [2012] ALL FWLR (Pt. 621) P1585.
It is obvious in all the decisions cited supra that the main purpose of limitation law/ the mischief the legislature intends to forestall/cure is to put a check on lethargic or slothful litigant who waits for so many years after the accrual of the cause of action before waking up one day and feels that he has a right to enforce against the defendant and thereby putting the defendant in a difficult situation of sourcing for evidence which might not be available because of length of time. The essence of statute of limitation is to guide against slothfulness of litigants. That being the case, the paramount issue for this Court to consider now is whether or not the claimant in this case stood at an akimbo, kept mute, was slothful/went to sleep after the accrual of his right of action for so many years before approaching this Court for enforcement of his rights?. It is apparent in the statement of facts that that is not the situation of the claimant in this case as stated earlier in this judgment. He wrote through his counsel a letter urging the defendants to reconsider their decision and reinstate/recall him back to his employment. The defendants responded to his letter on 28th December 2016, a month after his letter of appeal and he approached this Court on the 7th February 2017, all this happened within 4 months less 2 days of the accrual of the cause of action, i.e. the termination of the claimant’s appointment by the defendants. A germane question that requires an answer is would it be right and will the interest/course of justice be best served to dismiss this suit in the circumstance? The answer to this question is found in the Apex Court case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt. 1656) Page 247 @ 269 -270; where the apex Court Per Ariwoola JSC, succinctly captured the position of the law thus-
Ordinarily the purpose of the public officers protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not Instituted within three months, after the act, default or neglect complained of…”
His Lordship went further to state that;
“There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construction General, Farsura Cagefar Spa & Anor [1974] All NLR (PT.2)463; Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (PT.1038)66; [2007]3 SC (PT.1)131; [2007] 6 SCM 145; [2007] LPELR-2817” [Emphasis mine]
The above reasonable and lawful position of law was adhered to by the Court of appeal in the case of Nasarawa State University & Anor v. Nekere [2018] LPELR- 44550CA. In other words the claimant is at liberty to come to Court to enforce his right where he feels that same has not been considered on its merit and the Court can be called in, in its inherent jurisdiction in aid to do substantial justice by ensuring that the case is heard on the merit. Given that the essence of adjudication is to do substantial justice by hearing both sides before judgment is handed down, this is the masterpiece of justice and that is what this Court seeks to do in this case. In view of the fact that the claimant in this case has never gone off the radar/slothful in seeking to enforce his right, he has since the accrual of the cause of action taken steps to seek justice as could be seen in the statement of facts. The Nigerian Constitution, which is the Supreme law of the land and the groundnum from which all other laws take their legitimacy in the land including the Public Officers Protection law of Kwara State, affords a complainant/an aggrieve person the opportunity to vent his grouse in a Court of law no matter how spurious, on the principle that wherever a wrong is alleged, there must be an avenue for redress as encapsulated in the maxim ‘ubi jus ibi remedium’, meaning: where there is a wrong, there is a remedy, See Section 6(6) of 1999 Constitution as amended. I have equally found the decision of the apex Court and Court of appeal in both Ajibola Johnson’s case and Nekere’s case cited supra persuasive and strongly believe it to support the position of substantial justice this Court seeks to do in the instant, hence I wish to rely heavily on those decisions and now find and hold that the claimant’s employment being one of contract of service, cannot be affected by Section 2(a) of the Public Officers Protection Law of Kwara State. Accordingly, claimant’s case is competent before this Court and same is to be considered on the merit. I so find and hold.
Next is to consider the claimant’s claims, the claimant is seeking for a declaration that the termination of his employment by the defendants is illegal, wrongful, null and void and of no effect, having failed to comply with the defendants law and regulation guiding his employment. The claimant seeking a declaratory relief must prove to the satisfaction of the Court his entitlement to the declaration sought, which he must do on the strength of his case. See Mohammed v. Gbugbu & Ors [2018] LPELR-44494CA. The claimant in prove of his case laid before the Court his letters of one year temporary appointment which was regularized by a letter dated 6th May, 2016, this letter contains his terms of employment as well as the University’s terms and Conditions of service for staff which is also on record admitted as exhibit A3. According to the claimant the defendants failed to give him fair hearing in this case, in that they failed to follow strictly the provision of Section 8.5 of exhibit A3 as well as Section 16 of Kwara State University law, the provision of which is almost the same is hereunder highlighted thus-
REMOVAL OF AND DISCIPLINE OF ACADEMIC, ADMINISTRATIVE AND PROFESSIONAL STAFF:
1. If it appears to the Council that there are reasons for believing that any person employed as a member of the Academic or Administrative or Professional staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or inability to perform the functions of his office or employment, the Council shall:
a. give notice of those reasons to the person in question;
b. afford him an opportunity of making representations in person on the matter to the Council; and
c. if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements:
i. for a joint Committee of the Council and the Senate to investigate the matter and to report on it to the Council; and
ii. for the person in question to be afforded an opportunity of appearing before and being heard by the investigating Committee with respect to the matter; and if the Council, after considering the report of the investigation Committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directives of the Council.
It is claimant’s contention that he was not notified of the allegation leveled against him by the defendants. That when he was invited at the SSDC, he informed them that he did not know the reason for his invite to the committee. To the defendants the claimant was afforded an opportunity to answer to the allegation of misconduct bordering on extortion, threat and indecent behavior. That the claimant was interrogated at his departmental level as well as at the vetting and surveillance office, before he was subsequently invited to the Senior Staff Disciplinary Committee of the 1st defendant and the committee recommended his termination to the 2nd defendant who approved of the recommendation and terminated his appointment vide exhibit A4.
By Olalekan v. Management Board, University of Maiduguri Teaching Hospital [2012] LPELR-20099CA; employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant provisions of the statute is null, void and of no effect. See also the cases of U.B.N. Ltd. v. Ogboh [1995] 2 NWLR (pt. 380) p.647 at p.664 and (2) Ibama v. S.P.D.C. (Nig.) Ltd. [2005] 17 NWLR (pt. 954) p.364. Now, has the claimant proven that the defendants failed to follow the prescribed procedure for termination of his employment? To the claimant he was not given a query in form of a notice of the allegations leveled against him by the defendants. It is obvious by paragraphs 17 and 23 of his statement of facts as well as by paragraphs 12 and 17 of his sworn deposition that he was verbally informed vide SMS of his invitation to the departmental committee. It is plain by clause 8.5 (1)(a) captured above that where it appears to the 2nd defendant that an Administrative/academic staff should be removed, it shall give notice of the reasons to the person; afford him an opportunity to make representation on the matter to the 2nd defendant; a joint committee of the 2nd defendant and the Senate is to investigate the matter and the report submitted to the 2nd defendant who if satisfied that the staff should be remove is to do so by an instrument in writing signed on the directive of the 2nd defendant. By Ojabor v. Hon. Minister of Communication & Ors [2018] LPELR-44257CA; the status of employment with statutory flavour, in its own rights, guarantees an employee’s right to fair hearing before the termination of his employment. It is the argument of the learned defence counsel that since the claimant’s appointment has not been confirmed before the determination of same, the defendant need not follow the procedure for termination as stipulated under the regulation of the 1st defendant and that what the defendants did was just a mere supplusage. It is correct that the claimant’s appointment is yet to be confirmed by the 1st defendant, however by paragraph 6 of the letter of regularization of claimant’s appointment dated 6th May, 2016, it was stated that “The appointment is also subject to the University’s terms and conditions of service for staff as may be revised from time to time. A copy of this has been made available to you on your first appointment” This Court in the case of Fasilat Olayinka Lawal & anor v. Dr O. O. Odunubi, (the Medical Director, National Orthopaedic Hospital) and 5 ors [2015] 57 NLLR (Pt 195) 227. Per Hon. Justice Kanyip B.B held that; “Where an employee’s appointment is under the statute and not under a common law contract of master and servant, the employee’s appointment even though on probation cannot be terminated without fair hearing. The employers are expected to comply with the procedure for termination as provided by the Public Service Rules.” See also FMC, Ido-Ekiti v Alabi [2012] 2 NWLR (Pt. 1285) 411 CA. The import of the above provisions is that before the employment of an employee on probation as in this instance is terminated, the defendant has to comply with the terms and condition of service regulating his employment. I have perused all the Y exhibits representing the various reports of the committees of the defendants that investigated the claimant’s matter. One thread that runs through all is that, first it is obvious that claimant was not issued with a query or notice of any allegations against him, secondly, he was not given the opportunity to confront his complainants with any question, given that his complainants were not present at any of the committees when he was present. In fact at the SSDC, it is plain on exhibit Y7, that it was only claimant that was invited to that committee and they relied on the evidence given by the DCSO and not what the complainants presented before them in making a finding and recommendations. It is also evident by exhibit Y7 that claimant was not informed of the reasons for his appearance before the SSDC until he appeared before the committee. This is seen at paragraph (b) of the minutes of the SSDC at page 4, when the Chairman of the SSDC asked whether he knew why he was invited for the interaction and his response was “NO”, it was at that stage that the chairman informed him of the allegations leveled against him. The apex Court in Falomo v. Lagos State Public Service [1977]5S.C.P51@ 75-76; pronouncing on similar provision as the one under consideration, held that the affected officer like the claimant in this case will be at liberty to call witnesses, examine documents which were placed at the disposal of the panel and cross examine witnesses, if any, who testified and may still testify against him. I find this lacking in this instant, the defendants failed to give the claimant the opportunity of meeting with his accusers for the purposes of cross examining them, no iota of evidence is on record to evince that he was given any document/s used against him ahead of time to examine before he approached the panel. See the notorious case on this, Aiyetan v. Nigerian Institute for Oil Palm Research[1987] 3 NWLR (PT. 59) 48SC. The whole proceedings was like a hush hush one, just to get at terminating claimant’s employment. Would it then be correct to find that the claimant was given fair hearing in the circumstances of this case? It is the law of certain that the rules of fair hearing is not a technical doctrine but are of substance. The question is not whether injustice has been done because of lack of hearing but whether a party is entitled to be heard before a decision had in fact been given an opportunity of hearing. See Audu v FRN [2013] LPELR 19897; Agbo v. CBN [1996] 10 NWLR (Pt 478) 370; Ime Udo-Osoh v CBN [2013] 35 NLLR (Pt103) P 1 CA; Oloruntoba-Oju v Abdul Raheem, supra. Audu v. Petroleum Equalization Fund Management Board & Anor [2010] LPELR-3824. It is so apparent on record and from all the reasoning supra that the claimant was not given fair hearing by the defendants before his employment was terminated. It is therefore, without hesitation that I resolve this issue in favour of the claimant. Accordingly, I hold that termination of claimant’s employment by the 1st defendant dated 10th October 2016 is unlawful, null void and thus set aside as same is against the terms and condition of claimant’s employment.
Claimant by relief 2 of his complaint is seeking for reinstatement back to his position in the 1st defendant as Lecturer 11 with his promotion, salary and entitlement paid from the date of the termination till he is reinstated. I wish to state that the law is well settled that where an employee’s service is protected by statute and his employment is wrongfully/unlawfully terminated he would be entitled to reinstatement in his office and in addition damages representing his salaries during the period of his purported dismissal/termination. See C.B.N. v. Igwillo (2007) 4 – 5SC 154. Shitta Bey v Federal Public Service Comm. [1981] 1 SC, 26., also Olaniyan v. University of Lagos [1985] 2 NWLR (Pt.9) 599. The import of all stated supra is that claimant in this case is to be reinstated back to his office in the 1st defendant with all his rights and privileges attached and without loss of promotion effective from the date of the purported termination dated 10th October, 2016 till he is reinstated.
It is the law that where the main reliefs in a case are granted, there would be no need to dabble into the alternative claims. It is in this light that I discountenanced the alternative reliefs.
It is in sum that I find that claimant’s case succeeds and thus I make these declarations and orders-
That claimant’s case as constituted before this Court is not statute barred and thus competent.
That the termination of claimant’s employment by the 1st defendant is unlawful.
That claimant is to be reinstated back to his position without loss of promotion and entitlements.
That claimant is to be paid all his salaries and entitlements from the 10th of October, 2016 till the date of his reinstatement.
That the defendants are to comply with this judgment within 30 days of this judgment.
No order as to costs.
Judgment is accordingly entered.
Hon. Justice Oyebiola Oyewumi.
Pr esiding Judge.
