Dr. Inih A. Ebong -VS- University Of Uyo & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 23RDJANUARY, 2020                    SUIT NO: NICN/UY/33/2017

 

BETWEEN:

 

  1. INIH A. EBONG               ..………………………..CLAIMANT

 

AND

 

  1.         UNIVERSITY OF UYO
  2. MR. PETER JEROME EFFIONG

(REGISTRAR & SECRETARY TO COUNCIL DEFENDANTS

UNIVERSITY OF UYO)

  1. THE GOVERNING COUNCIL

            (UNIVERSITY OF UYO:

 

REPRESENTATION

 

Nsikak Effiong with Imabong Ukanna and Iberitam Abasi Ofon for the Claimant.

Inibong Okon with A.C. Ohia For Defendants.

 

 

JUDGMENT

This case has a protracted history. It was originally instituted sometimes in 2002 at the Federal High Court, Calabar with Suit no. FHC/CA/CS/58/2002. Upon the creation of Uyo division of theFederal High Court, the case was transferred to the Federal High Court, Uyo and given Suit no. FHC/UY/CS/144/2003. At the end of trial, judgment was entered for the Claimant after which an appeal was entered at the Court of Appeal, Calabar in Appeal No. CA/C/164/2012.The appeal was allowed and the action was transferredfrom the Federal High Court, Uyo to this Court for trial de novo.The case was registered as Suit No. NICN/UY/12/2015and came up for mentionon 13thOctober, 2015. On 26th September, 2017 with the leave of court, the suit was withdrawn. On 22nd November, 2017 the Claimant refiled the Suit as Suit No. NICN/UY/33/2017 praying for the following reliefs against the Defendants as follows:

 

(a)        A declaration that the stoppage of the Claimant’s salary, the indefinite suspension of him from duties, and the purported termination of his appointment, by the Defendants without due process were malicious, ultra vires; and unlawful, and therefore null, void and of no effect whatsoever.

 

(b)        A declaration that the indefinite suspension of the Claimant from duties for taking his employer to court was a flagrant breach of the Claimant’s right of access to court, and is therefore unlawful, null and void and of no effect whatsoever.

 

(c)        A declaration that the purported termination of the Claimant’s appointment by the Defendants was actuated by malice, improper motives and bad conscience.

 

(d)        A mandatory order compelling the Defendants, their servants, agents, assigns, and privies, howsoever known or called to withdraw forthwith their letter with reference number UU/REG/76/Vol.1/52 dated 28th March, 2002 terminating the Claimant’s appointment and reinstate the Claimant to his duty post with effect from 28th March, 2002 when they terminated his appointment and, further, to restore the Claimant’s salary that was stopped; withdraw forthwith their indefinite suspension of the Claimant from duties, and pay to the Claimant all the salaries, allowances and non-pecuniary entitlements accruing to him since 1st August, 2001 when his salary was stopped and from 28th March, 2002 when his appointment was wrongfully and unlawfully terminated.

 

(e)        An order that the Defendants pay in addition to the Claimant the equivalent of his full annual salaries and allowances for the 2001/2002, 2007/2008 and 2014/2015 academic years, being the academic years the Claimant should have proceeded on Sabbatical leave in accordance with the terms and conditions of his employment, had the Defendants not unlawfully suspended him indefinitely from duties and terminated his appointment.

 

(f)          An order that the Defendants approve and allow the Claimant to take and enjoy his accumulated annual leave of 30 working days a year from May, 1995 when he joined the service of the 1st Defendant, and his research leave of 26 days a year from May, 1995 when he joined the service of the 1st Defendant.

 

(g)        N50,000,000.00 (Fifty Million Naira) damages for violation of the Claimant’s fundamental right to fair hearing and right of access to court.

 

(h)        N50,000,000.00 (Fifty Million Naira) aggravated damages.

 

(i)          N100,000,00.00 (One Hundred Million Naira) exemplary damages.

 

The Claimant opened his case on the 16thOctober, 2018 and tendered fifty four (54) (Exhibits CW1 – CW54) and was cross examined on the 24thJanuary, 2019 and 5th May,2019. On the other hand, the Defendants opened their defence on the 3rdJuly, 2019 and tendered three (3) documentsas Exhibits(DW1-DW3) through a lone witness, Otu Etukudo, Esq.who wascross examined on 4thJuly, 2019 and 5th July,2019. The matter was adjourned to October 23, 2019 for adoption of Final Written Addresses.And the Defendants’ Written Address was filed on the 23rdNovember, 2019 while that of the Claimant was filed only on 5thNovember, 2019. Parties adopted their Final Written Addresses on 18th November, 2019.

            The Case of the Claimant

The Claimant was appointed as a Senior Lecturer by the 1st Defendant by a letter No. UU/REG/DPA/SE/8/VOL.6/280 dated 8/3/1995 under the terms and conditions applicable in Federal Universities in Nigeria. The Claimant accepted the appointment by a letter dated 30/3/1995 and reported on 2/5/1995. The Claimant worked assiduously for the1st Defendant and rose to the position of the Head of Department of Theatre Arts, from April 23, 1997 to October 11, 2000 when he voluntarily resigned. The Claimant was promoted to the rank of Associate Professor of Theatre Arts by the 1st Defendant on December 28, 2001. However, problems began to set in between the Defendants and the Claimant for his refusal to belong to a group of colleagues who bitterly wanted to oustthe Vice Chancellor of the 1st Defendant, Prof. Fola Lasisi from office and to compromise academic standards.

The Claimant who had never gone on annual leave since employment on 3rdSeptember, 1999, applied for deferment of his leave pursuant to the 1st Defendant’s policy directive but the requests was refused for being against the policy of the 1st Defendant with an advise that leave should be taken as and when due and when the academic session will be in progress. Based on the above, the Claimant timeously applied for his annual leave on 11thJune, 2001, through the Head of Department of Theatre Arts, who recommended on 12thJune, 2001 and it was approved by the 2nd Defendant on June 22, 2001. The leave was to runfrom 1stAugust, 2001 to 12thSeptember, 2001 and was issued with a Leave Certificate endorsed by the Head of Department and the Registrar thereon.No sooner had the Claimant embarked on leave than the Defendants to stop the Claimant’s salary on 31stAugust, 2001 with retrospective effect from 1stAugust, 2001, the day the leave commenced. On 12thSeptember, 2001, the Claimant resumed for work and notified the Defendants accordingly.The Claimant had prior to resumption for duties, written to the Defendants on 7thSeptember, 2001 to protest the stoppage of his salary. On receipt of this letter, the Defendants wrote to the Claimant accusing him of abandonment of dutyand threatening to take severe disciplinary action against him to which the Claimant promptly responded by explaining the circumstances that led to his going on the annual leave for 2001.

Thereafter, the Defendants, in a manner suggestive of a premeditated act, belatedly constituted a panel to investigate the allegation of abandonment of duty by the Claimant on 15thOctober, 2001. The Panelabsolved the Claimant of wrongdoing on the issue and recommended the reversal of the directive stopping his salary. But the Defendants not only refused to implement the recommendation of their own panel but suspended the Claimant indefinitely for instituting the said suit against them without their consent or resigning.This was in flagrant breach of the Claimant’s fundamental right of access to court and without affordingthe Claimant an opportunity to defend himself or be heard.

 

The Claimant was, thereupon, invited to appear before the Senior Staff Disciplinary Committee over an allegation of “Walking out on a Panel of Investigation”. Even though the letter of invitation was dated 25th January, 2002, it was served on the Claimant at 8.20a.m for him to appear by 10:00a.m the same day. The Claimant promptly reacted to this late invitation by writing Exhibit DW2 and also appearing in person to raise objections on the composition of the panel and was never invited to the Panel again. The Claimant pointed out the double standard for suspending him and placing him on half salary for challenging the action in court while nothing was done to the 2nd Defendant (also member of the panel) and other staff who instituted a case (Suit No. HC/438/1999) against the 1st Defendant.

It was the case of the Claimant that even though the Senior Staff Disciplinary Committee was not properly constituted as mandatorily required by law, it produced, a report of sort, which recommended that “Panel of Prof. E. D. Qkon should be reconstituted” on the basis that, “it could not give fair hearing to the appellants.”

It is against this background that the Defendants without any notice, proceeded to terminate the appointment of the Claimant for “serious misconduct”, even when he was allegedly investigated for “gross misconduct”. To the Claimant, the stoppage of salary, suspension and eventual termination of appointment, did not comply strictly with the terms and conditions of services of employment as provided in Exhibit CW4.The Claimant has suffered hugely by the acts of the Defendants in material, financial and emotional terms hence this action with all the attendant reliefs.

            The Case of the Defendant

           

            The Claimant was until 28thMarch, 2002, an Associate Professor in the Department of Theatre Arts of the 1st Defendant. The case of the Defendants is that following the allegations of misconduct levelled against the Claimant, two investigative panels were set up at various times to investigate the conduct of the Claimant regarding:

  1. a)Allegations of abandonment of duty from 1st August 2001 to September 12, 2001.
  2. b)Allegation of sexual harassment of a female student.

The 1st panel absolved the Claimant on the ground that though, it was wrong by virtue of the Conditions of Service of the 1st Defendant for the Claimant, a Senior Academic Staff to proceed on leave while School was in session without any arrangement as to his students’ academic activities; the Claimant couldn’t be totally condemned since he had not gone for long vacation for some times.On the date of sitting of the 2nd panel to investigate alleged sexual harassment of a female student, the Claimant appeared before the panel and walked out on the panel.

It is the case of the Defendants that in accordance with the Regulations Governing the Senior Staff Conditions of Service of the 1st Defendant particularly Chapter 2.22, Defendants duly constituted a Senior Staff Disciplinary Committee to review the Reports of the two panels. The Claimant was duly invited to appear before the Senior Staff Disciplinary Committee by a letter dated 25th January, 2002 which the Claimant received and replied by a letter dated 28thJanuary, 2002. It is the further case of the Defendants that the Claimant appeared before this Committee only at its first meeting and abandoned the proceedings. The Senior Staff Disciplinary Committee stayed action on the allegation of abandonment of duty as a result of the action instituted by the Claimant challenging stoppage of his salary. As for the allegation of sexual harassment in which the Claimant walked out on the panel, the Senior Staff Disciplinary Committee of the 1stDefendant stated in its report that was admitted in evidence as follows:

“A panel of investigation headed by Prof E. D. Okon had been directed by the Vice-Chancellor to look into a report of sexual harassment against Dr. Inih Ebong.  Dr. Inih Ebong walked out on the panel. He was earlier condoned for a similar act. This action constituted gross misconduct.”

It was on the basis of the Report of all the panels set up to investigate the Claimant’s acts of misconduct particularly the one he walked out on and subsequently the Senior Staff Disciplinary Committee which he shunned their subsequent meetings, that the 3rd Defendant in its 32nd meeting held on 27th March, 2002 decided that the Services of the Claimant was no longer required by the Defendants. Hence the termination of the Claimant’s appointment on 28thMarch, 2002.

            Defendant’s Submission:

 

The Defendant formulated four (4) issues for determination, to wit:

  1. Whether by virtue of the unsigned writ & summons by which this present Suit was commenced as Suit No. FHC/OVCS/58/2002 at the Federal High Court, Calabar; all subsequent proceedings founded on that writ of summons including this present action is not incompetent which incompetence robs this Honourable Court of jurisdiction
  2. If the answer to question one (1) above is resolved to the effect that the proceedings before this Honourable Court is an entirely new action; whether this present action is not statute barred regard being had to the Public Officers’ Protection Act.

 

  1. Whether the Claimant has established that his employment with the 1st Defendant was terminated in breach of the Conditions of Service of the 1st Defendant?

 

  1. Whether or not the Claimant was granted fair hearing before his appointment was terminated?

The Defendants argued issues 1 and 2 together. It is the contention of the Defendants that the suit which this court inherited was not commenced and was neither signed by the Claimant or any Legal Practitioner thereby robbing this court the requisite jurisdiction to entertain it.

The Defendants submitted that the Claimants having admitted in their pleadings particularly paragraph 24 that the instant Suit is a continuation of Suit No. FHC/CA/CS/58//2002,whatever defect is found to be inherent in the said suit would invariably affect the present suit like a virus.

The Defendants submitted that any such process not signed by a Legal Practitioner or the litigating party is invalid and the jurisdiction of the court is ousted. In support of this proposition of the law, the Defendants cited the case of Aaron Karma & 4ors v.Isaiah Samuel (2013) 7 NWLR (Pt 1352) pg. 19 43 paras. A-C, where it was held thus:

“Once an Originating Process, be it Writ of Summons or Notice of Appeal is not signed or authenticated either by the Litigating Party or the Legal Practitioner on his behalf,  then the Process is invalid and the Jurisdiction of the Court is ousted. The defect is taken as incurable and the process signed in the name of the Legal Firm will not suffice….”

The Defendants further cited the cases of Alhaji Tajudeen Baba Tunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni (2015) 5 NWLR (PT. 1453) P. 486 505 paras F; 506 paras A-C;507 para D-F. and Dr. Tunji Braithwaite v. Skye Bank Plc (2013) 5 N.W.L.R (PT.1348) Pg.1@ p .15 paras. D-E.

It is therefore the submission of the Defendants that since the Claimant commenced this action by an invalid Writ of Summons, all other accompanying processes as well as evidence led in respect thereof cannot stand as the Claimant cannot put something on nothing and expect it to stand. The Defendants also placed reliance on the locus classicus case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to the effect that the Jurisdiction of a Court can only be exercised when the case comes before the court initiated by the due process of law and upon the fulfilment of any condition precedent to the exercise of Jurisdiction.

The Defendants further submitted that lack of signing an Originating Processes is not an issue of technicality and as such is incurable as strongly held by the Supreme Court in the case of First Bank Plc v. Maiwaida (supra) as follows:

“The Legal Practitioners Act seeks to make Legal Practitioners responsible and accountable more especially in modem times. There is nothing technical in insisting that a Legal Practitioner should abide by the dictates of the Law in signing Court Processes. The issue is not in the domain of public policy. The Convenience of Counsel should have no pre-eminence over the dictate of the Law. The law as enacted should be followed.”

Similarly, the Defendants contended that the instant action is incompetent as the three months period prescribed by the Public Officers Protection Act, Cap. P41 within which the action can be commenced had long expired.

On the authority of the recent case of University of Jos v. Dr. M. C. Ikegwuoha (2013) 9 NWLR (P1.1360) p. 478 R. 1, the Defendants submitted that itis now firmly established that Federal Universities in Nigeria are Public Officers within the meaning of the Public Officers (Protection) Act.

The Defendants asked when did the cause of action in this suit arise and when did the Claimants approach this Court?  For an answer, the Defendants proffered the definition of cause of action in the Supreme Court case of Union Bank of Nigeria Plc v. Romanus C. Umeoduagu (2004) 11 MJSC 127 :

“The combination of facts and circumstances giving rise to the right to file a claim in court for a remedy. It includes all things which are necessary to give a right of action – and every material fact which his to be proved to entitle the Plaintiff to succeed.”

The Defendants therefore posited thata cause of action accrues on the date on which the incident giving rise to the cause of action arose and statute of limitation begins to run from the moment the cause of action arose, citing Okenwa v. Military Governor of Imo State (1997)6 NWLR (P1507) P.154 at 167.

Applying the above to the facts of the instant case, the Defendants noted that the grudge the Claimant is the termination of his appointment dated 28th March, 2002 and submitted that having waited

 

14 years having waited for 14 yearsbefore approaching this Court, the Claimant has lost his right of action if any, relying on the case of Cross River University of Technology (Crutech) v. Obeten (2011) 15 NWLR PT. 1271.

 

Finally on the point, the Defendants submitted that under the circumstance, the proper order for the Court to make is that of dismissal as in Cross River University of Technology (Crutech) v. Obeten (supra).

On issue three, the Defendants submitted that in determining the appointment of the Claimant, the Defendants complied with the spirit and letters of the Regulations Governing the Senior Staff Conditions of Service of the University of Uyo 1998to the hilt. Quoting the Chapter 2, 21 of the Regulation 770111, the Defendants submitted that to terminate the appointment of an Academic Staff like the Claimant, the 1st Defendant must:

 

(i)           Set up a joint Committee appointed by the Council and the Senate and at least one-third of its members must be appointed by the senateand,

 

(ii)      The person concerned, has if he so request bepermitted to appear to defend himself either in person or through his representative.

 

(iii)     And the report of the Committee should be considered by senate and ultimately the Governing Council which shall take appropriate action.

It is the further contention of the Defendants that the 1st Defendant complied with the above provisions in terminating the appointment of the Claimant by the following actions:

  1. Setting up investigative panels to investigate various acts of misconductlevelled against the Claimant.
  2. Thepanels invited the Claimant, took evidence and submitted its reports to a Joint Committee appointed by the Senate which is also christened Senior Staff Disciplinary Committee.
  3. The Joint Committee duly invited the Claimant who not only replied to the letter of invitation but attended the sitting of the Committee once.
  4. A report of this Committee was eventually presented to the senate and ultimately the Governing Council being the highest decision making body in the University.
  5. The Council considered all the Reports and came to a conclusion that the services of the Claimant was no longer required.

Having followed the above procedure, it is the submission of the Defendants that the termination of the Claimant employment was lawful and without reproach particularly given the position of the law that once an employer complies with the terms of its contract with its employee it can terminate the services of the Employee and the Court will have no business with the motive behind the termination of such contractrelying on the case of Fakuade v. Obafemi Awolowo University Teaching Hospital Management Board (1993) 5 NWLR (Pt 291) 47.

The Defendants strongly maintained that the walking away from the panel set toinvestigate his alleged act of sexual misconduct constituted “gross misconduct” which is enough to earn the Claimant a dismissal as in the case of Teliat Sule v. Nigerian Cotton Board (1985) 6 5012, where Obaseki, J.S.C (as he then was) stated:

“When a Servant grows too big to obey his master, the Honourable course open to him is to resign in order to avoid unpleasantconsequences should an occasion which calls for obedience be serviced with disobedience both common law and statutes law brook no disobedience oflawful order from any servant, high or low, big or small such conduct normally or usually attracts thepenalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishments.”

On the contention by the Claimant that the Senior Staff Disciplinary Committee was not properly constituted as “there being no representation of Senate on the Committee.“, the Defendants advanced thatnothing could be farther from the truth as this much was admitted by the Claimant himself when confronted with the names of the Representatives of the Senate as clearly spelt out on Exhibit C41.

The Defendants also argued that by virtue of Section 4 (m) of Exhibit C4, misconduct by an employee of the 1st Defendant is construed to include, acts that embarrasses officers, Committees, Senate or Council of the 1st Defendant and that that if the Governing Council of the 1st Defendant comes to a conclusion that the act of walking out on a panel set up by the 1st Defendant by the Claimant is embarrassing enough to amount to misconduct warranting the disengagement of the Claimant from the services of the 1st Defendant; it does not lie in the mouth of the Claimant nor this Court with respect to state otherwise. The rationale for this, according to the Defendants is that the right to discipline any employee of the 1st Defendant including suspension is sacrosanct, once the rules, of engagement have been duly complied with. It is therefore the further submission of the Defendants that an employer can suspend his employee pending investigation of any allegation against him and such suspension will not give rise to an action by virtue of the cases of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) Pg 142 Para F-L; Amadiume v. Ibok (2006) 6 NWLR (P7975) P. 158 R. 4; Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (P7 1189) Pg. 1 060 Para E.

By way of conclusion, the Defendants reproduced extensively the report of the Governing Council on the Claimant on page 38 of Exhibit C 41 as follows:

“The Registrar thereafter presented a report on gross misconduct by Dr. Inih A. Ebong to the Council. The report catalogued Dr. Ebong’s acts of gross misconduct since his employment by the University of Uyo in 1995. Council observed among other things that:

  1. Dr. Ebong has caused lots of problems in the Department of theatre    Arts;
 

He was very rude to the constituted authorities of the University and consistently undermined the authority of Investigation Panels set up by Management to look into cases involving him. He either bluntly refused to appear before such panels or when he did, he would abuse the members and would walk out on them. The cases of Prof. E.D Okon and Prof. E.O.Ekpo’s Panels were cited.

 

iii.       He volunteered the information that he had faced thirteen (13) different panels in the University within his short stay.

Council considered the report of Prof. E. D Okon’s panel in which Dr. Ebong was indicted for walking out on the panel. Prof. Okon’s Panel was investigating a case of sexual harassment preferred against Dr.. Ebong. The Panel had recommended his dismissal from service in

 

line with Public Service Rules.Council expressed dismay at the consistent and flagrant acts of gross misconduct displayed Dr. Ebong and decided that Dr. Ebong’s services were no longer required in the University. Council approved the termination of his appointment with immediate effect.”

 

Finally on the point, the Defendants submitted that it ought not to keep an employee with these damning report in its employ and urged the court to holdthat the 1stDefendant was justified in terminating the Appointment of the Claimant having complied with the spirit a letter of the Condition of Service that governed the Claimant’s employment.

On issue four, which is whether the Claimant was granted fair hearing before his appointment was terminated, the Defendants contended that the Claimant was afforded all the opportunity to defend himself, some of which he utilized and others he spurned.

The Defendants thereafter recounted how two panels were constituted to 1ook into the allegations against the Claimant and how the Claimant attended the panel that looked into abandonment of duty made a short representation and left and how the Claimant attended the second panel on sexual harassment and walked out on the panel mid-way into the sitting. The Defendants also recalled the setting up of a third panel, the Senior Staff Disciplinary Committee (also called the joint Committee of the Council and Senate) as prescribed by the Regulations Governing Senior Staff of the 1st Defendant wherein a formal invitation letter was sent to the Claimant only for him to reply vide a letter dated 28th January, 2012, appearonce before the Committee and no more.

To the Defendants, it is pertinent to ask the following questions:

  1. a)        If the Claimant was not given a hearing, how come he gave evidence before the panel on abandonment of duty? Did he deny appearing before that panel?
  2. b)       What happened to the reply written by the Claimant to the letter of invitation sent to him to appear before the Senior Staff disciplinary Committee? Did he deny writing the said letter or appearing before the Senior StaffDisciplinary Committee once?
  3. c)        Was it not only the panel set to investigate allegations of sexual harassment that he denied appearing before even in the face of the Report of the Senior Staff Disciplinary Committee before the Court?

Referring to the cases of S & D Construction Company Limited v. Chief Bayo Ayoku & Anor (2011) 13 NWLR (PE 1265) Pg. 487 Particularly at Page 509 Paragraph E-Fand Omo v. Judicial Service Commission Delta State (2000) 12 NWLR. (PE 682) 444, the Defendants submitted that the position of the law is that a party who had opportunity of being heard but failed to utilize same cannot complain of breach of fair hearing.

Having noted that the panels in the instant case were merely administrative panels, the Defendants submitted that where a body as a panel of inquiry acts in an administrative and not in a judicial or quasi-judicial capacity, the need for a hearing is satisfied by an opportunity to make representations, written or oral to the body. The essential thing is that the body gives a fair opportunity to the person to be affected to present his own side of the case. This is the case of Udo v. Cross Rover State Newspaper Corporation (2001) 14 NWLR (Pt. 732) P. 116 @ 153, 154.

By way of conclusion, the Defendants posited that the Claimant’s appointment was lawfully terminated and accordingly this action deserves to fail.

            Claimant’s Submission

 

The Claimant formulated three (3) issues for determination as follows:

  1. Whether the Suit, as it is presently constituted, is incompetent.
  2. Whether in the circumstances of this case, the Defendants had complied strictly with the conditions of service before stopping the Claimant’s salary, suspending him from duties and terminating his appointment.
  3. Whether the Claimant is entitle to the reliefs sought.

On issue one (1) which is whether this Suit as it is presently constituted is incompetent, the Claimant noted that the Defendants challenged the competence of the suit on two prongs: The non-signing of the Writ of summons of the previous Suit transferred from the Court of Appeal, Calabar which led to the institution of Suit No. NICN/UY/12/2015 and the three months period prescribed by the Public Officers Protection Act, Cap. P41 within which the action can be commenced had expired.

The Claimant stressed the importance of jurisdiction as enunciated in the case of Madukolu v. Nkemdilim(1962) 1 SCNLR 341 and responded to the Defendants’ position in turns. On the issue of non-signing of the writ, the Claimant asserted that jurisdiction is a question of law relying on Heritage Bank Ltd. v. Benthworth Finance Nig. Ltd (2019) All FWLR (Pt. 997)1 at 23, line G; Attorney General, Kwara State & Anor v. Adeyemo & Ors (2016) 7 SC (Pt. 11) 149and submitted that the law establishing and creating this Court is donated, both by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and theNational Industrial Court Act (Third Alteration) Act, 2011 (sic) as distinct from the law establishing the Federal High Court. It is the further submission of the Claimant that the jurisdiction of this court is as donated by section 254C of the National Industrial Court (Third Alteration)

 

Act, 2011 (sic)which does not confer it with unlimited powers to determine claims or matters relating to the interpretation and application of the rules of any other Court, be it Federal or State. It is therefore the submission of the Claimant that the argument canvassed by the Defendantsthatthe unsigned Writ of Summons issued as Suit No. FHC/CA/CS/58/2002 by the Federal High Court, Calabar on June 27, 2002 was incompetent is an attempt to invite this Court to interpret and apply the law and the rules of another Court which is not allowed in law. The Claimant cited the case of Onagoruwa v. IGP (1991) 5 NWLR (Pt.193) 593 at 636 ratio 12, where it was held thus:

 

            “In law, a Court of law is basically and generally bound by the law establishing it and not that establishing some other Court. While a Court exercising an appellate jurisdiction can draw attention to a lower Court for act complying with a provision of a statute establishing it in the process of invoking its interpretative jurisdiction, it is not competent to make use of a section of that statute as if it is bound by it.”

It is also submitted by the Claimant that the Writ of Summons dated June 27, 2002 issued in Suit No. FHC/CA/CS/58/2002 was validly issued as required by the provisions of Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules 2000 which provided thus:

“Issue of a Writ takes place upon its being signed by the Judge in Chambers.”

On the cases cited by the Defendants is support of their position on this, the Claimant taking refuge in the cases of Emeka v. Okadigbo (2012) All FWLR (Pt. 651) 1426and Adedara v. Arowoio (2014) All FWLR (Pt. 761) 1536 at 1558, ratio 1 submitted thatcases are only authority for what they decides and that for cases to be binding on Courts, it must relate to the facts of the case. The Claimant advanced thatthe modern approach adopted by the Supreme Court in the case of Akeredolu v. Abraham (2019) All FWLR (Pt. 998) 179, is that it is no longer opened to the Court to apply principles of law without scant reference to the facts of the case cited and the prevailing circumstance of the case under consideration. It was held at 221, lines B as follows:

 

            “It is trite law that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case.Secondly, each case remains authority for what it decided. Therefore, an earlier decision of this Court will only bind the Court and subordinate Courts in subsequent case if the facts and the law which informed the earlier decision are the same or similar to those in the subsequent case. Where the facts and/or legislation which are to inform the decision in the subsequent case lifter from those which informed the Court’s earlier decision, the earlier decision cannot serve as a precedent to the subsequent one.”

Applying the above principles to the facts of the instant case, the Claimant observed and argued as follows. First, unlike the issue before this Court, in all the cases cited, the issue was the interpretation and enforcement of the provisions of Section 2 (1) and 24 of theLegal Practitioners Act, 2004 from where the Rules of the Federal High Court on signing of the Writ of Summons derives its validity and force. Second, and most importantly, the principles of law enunciated in these cases are in relation to processes filed by a legal practitioner, without more. Third, the true intent and purpose of the principles in the earlier cases cited are only intended to protect the legal profession, not the ways of a litigant who seeks justice in the court. This is even so in the case of Ministry of Works & Transport, Adamawa State & Ors v. Yakubu pon) at 53 NSCQR (Pt. 11) 1 at 18-19cited by the Defendants,where the Supreme Court held thus:

            “It is not in doubt that the provisions of the law cited above are meant to protect the legal profession. To ensure that no person other than a lawyer whose name is on the call roll sign legal documents and eliminate impersonators and fake lawyers from legal practice.”

Four, none of the cases cited and relied upon by the Defendants had decided any issue concerning or arising from a case transferred from the Court of Appeal to this court for trial denovo or the validity or otherwise of a prior process in the subsequent trial or on the basis of a writ of summons issued under the Federal High Court (Civil Procedure) Rules, 2000 by a Plaintiff in person.

On the issue of this action being statute barred, the Claimant posited that this court having ruled previously that the suit was instituted within time and not statute barred per Exhibit CW49, the Defendants wanted another bite at the cherry, the implication of which amounted to invitingthis Court to sit on appeal over its decision. Referring to paragraph 3 (c) of the Reply to Statement of Defence and the proceedings of September 26, 2017, the Claimant urged the court to be bound its record as constituting resjudicataas the Defendants cannot easily resurrect the ghost of an issue that was long buried in the labyrinth of the past. To the Claimant, the law is settled that, an issue that has been resolved and settled by the Court between the parties cannot be re-litigated again as it constitutedissue estoppel in accordance with the case of Polyvalent (Mg.) Ltd. & Ors v. Akin Akinbote(2010) 8.NWLR pt. 1197) 506 at 519.

Not only that, the Claimant submitted that on the authorities of Addax Petroleum Development (Nig.) Ltd. v. Emef International Operations (2012) All FWLR (Pt. 621) 1585 at1596 ratio 3and Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd (2015) All FWLR (Pt. 803) 1857 at 1901,a suit that was filed within time and later struck out and re-filed is not caught up by the Public Officers Protection Act. It was held in Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd (supra) at 1901 ratio 8, thus:

“Where an aggrieved person commences an action within the period prescribed by statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such an action is still open to be recommenced at the instance of the Claimant and the limitation period shall not count during the pending of the earlier Suit. In other words, computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates.”

It is also the contention of the Claimant that the argument of the Defendants on the issue can no longer be an issue for debate given the position of the law which has since navigated the ocean of rigidity has berthed at the shore of flexibility. To buttress this, the Claimant cited the case of Osun State Government v.  D. N. Ltd (2007) 17 WRN 1 at 16, ratio 2, where the Supreme Court held thus:

            “It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract.”

This principle of law has been re-echoed by the Supreme Court in the recent case ofN.R.M.A.F.C v. Johnson (2019) 2 NWLR (Pt. 1656) 246 at 269 270,1ines H-A, G, where the law was put in its proper perspective thus:

 

“Ordinarily, the purpose of the Public Officer 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…. The law is said to be designed to protect only officer, who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification…. There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now law settled that section 2 of the Public Officers Protection Act does not apply to cases of contract.”

 

The Claimant’s issue no. 2 is whether in the circumstances of this case, the Defendants had complied strictly with the conditions of service before stopping the Claimant’s salary, suspending him from duties and terminating his appointment.The Claimant answered in the negative. Asserting that the law is settled that parties are bound by their pleadings as in the cases of Sapo & Anor v. Sunmonu (2010-2013) 6 SOL 78 at 85; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412 at 433-434 paras H-A; Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 141, the Claimant reeled out the pertinent paragraphs the Statement of Facts, Statement of Defence and Reply to the Statement of Defence which represented the substance of the claim against the Defendants. These were paragraphs 5, 6, 10, 11 and 12 of his Statement of Facts and paragraphs 4, 5, 7, 8 and 10 the Statement of Defence.

Noting that the law is settled thatcases are decided on the facts before the Court as in Buhari v. INEC (2009) 7 WRN 1 at 122 ratio 20, the Claimant submitted thatfrom the facts pleaded in this case, it is safe to assert, as proved and establish that, parties are agreed that, the contract of employment is governed by the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit CW4). To the Claimant the court is bound to accept the fact as proved because it is not the business of the Court to spend judicial time resolving matters not in dispute relying on the case of Ogundalu v. Macjob (2015) All FWLR (Pt. 784) 103 at 123 ratio 10.

It is the submission of the Claimant thatby the nature of the contractemployment which is one with statutory favour, the Defendant must strictly comply with all the terms and conditions of service. For this proposition of the law, the Claimant cited the cases of Shitta-Bey v. The Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos (1985) 2 NNLR (Pt. 9) 599; Ekpereokun v. University of Lagos (1986) 4 NINR (Pt. 34); Bakare v. L.S.C.S.C. (1992) 8 (Pt. 252) 641; CBN v. Igwillo (2007) 147 LRCN 913; SPDCN v. Olarenwaju (2009) 6 WRN 72.The Claimant further quoted the Court of Appeal in the recent case of University of Uyo v. Dr. E. P. Akpan (2014) All FWLR (Pt. 736) 472 at 515, thus:

“When an office or employment has a statutory flavour in the sense that, its conditions of service are provided for and protected by statute or regulations made thereunder, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right of reputation or tenure of office ofthat person may be declared null and void in an appropriate proceeding.”

It is the contention of the Claimant in this case that, the Defendants did not comply with the terms and conditions of service of his employment before stopping his salary, suspending him from duties and terminating his appointment. Having noted that both the Claimant and Defendants relied on the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit CW4) as the centre-piece of all their argumentsin this case, the Claimant set out the provisions of Paragraph 2.21 at Page 8 of the document thus:

“The appointment of any member of the academic staff who, holds an appointment until retiring age shall not be determined by the Council unless there has been an investigation relating to his case by a Joint Committee nominated by the Council and the Senate of which Joint Committee, at least one third of the members, have been appointed by Senate and the person concerned, has, if he so requests, been permitted to appear to defend himself in person or through his chosen representative before the Joint Committee, and the report of the Joint Committee considered by the Senate and by the Council which shall take an appropriate decision on the case.”

To demonstrate that the above provisions were not followed, the Claimant submitted that his salary was wrongfully stopped vide Exhibit CW13after he validly obtained permission and approval to embark on his annual leave for 2001 vide Exhibit CW11 which wasendorsed by the 3rd Defendant.Since the Defendants have in nowhere repudiated the validity and content of Exhibit CW11, the Claimant urged the court accept as credible calling in support the recent case of Solomon v. Monday (2015) All FWLR (Pt. 762) 1695-1720, where it was held thus:

 

“Documentary evidence if not challenged in any manner pejorative to its integrity and authenticity must be believed and accepted.”

 

The Claimant also posited that the Report of the Investigation Panel of the Case of Abandonment of Duty (Exhibit CW17) not only supported the evidence of the Claimant but clearly vindicated the Claimant and absolved him of any blame as stated atpage 3 thus:

          “(1) Dr Ebong was authorized by the Registry on the recommendation of the Head of Department to proceed on leave within the period of 1st August to12 September, 2001.”

The Claimant further singled out Exhibits CW11 and CW17 as documentary evidence to support the credibility of his evidence, the combined effect of which makes his oral evidence more credible referring to Jolasun v. Bamboye (2010) 18 NWLR (Pt. 1225) 285 at 318-319.Alluding to the principle that documentary evidence is the best evidence as held in the cases of AG, Bendel State & 2 Ors v. United Bank for Africa Ltd (1986) 4 NWLR (Pt. 337) 547 at 563; Egharevba v Osagie (2010) 180 LRCN 75 at 103, ratio 6, the Claimant asserted that thesedocuments cannot be faulted or controverted as  documentary evidence carry the heavy weight of a hanger upon which oral evidence is assessed: B. Stabilini & Co. Ltd v. Obasi (1997) 9 NWLR (Pt. 520) 293 at 305.

Thereafter, the Claimant attacked the position of the Defendants that they have followed the provisions of the Rules to the hilt in determining his appointment on three (3) grounds.First, Claimant strongly submitted that the composition of the Senior Staff Disciplinary Committee isunknown to the regulations of the 1st Defendant (Exhibit CW4). The committee envisaged under section 2.21 (a) of Exhibit CW4 is a “Joint Committee” to be “nominated by Council and the Senate”, of which number, “at least one third of the members” should be nominated by the Senate and not the Senior Staff Disciplinary Committee. It is also the submission of the Claimant that, neither the pleadings of the Defendants and the evidence of DW1 have proved or established, in concrete terms, that, the composition of the members in Exhibit DW3was in strict compliance with the regulations. In fact, it is the argument of the Claimant that DW1 did not even know the members’ of the panel, let alone the number of those that were appointed by the Council or nominated by the Senate to satisfy the mandatory number.

The Claimant contended that general proposition of the law is that the burden of proof lies on that person who would fail if no evidence at all were given on either side referring to section 132 of the Evidence Act, 2011; Olaiya v. Olaiya & Ors (2000-2006) 6 SCE 560.But further contended that it is not static as provided for by section 136 (1) and (2) of the Evidence Act, 2011 thus:

“(1)    The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless….

(2)         In considering the amount of evidence necessary to shift the burden of proof regard shall be heard by the Court tothe opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”

Based on the above provision, the Claimant submitted that havingdenied and refuted the composition of the Joint Committee as provided in paragraph 2.21 (a) ofExhibit CW4, the burdenhas been shifted to the Defendants, who had “the opportunity of knowledge withrespect to the fact” of the membership of the Committee. According to the Claimant this position has found judicial expression in the Supreme Court case of David Itauma v. Akpe-lme (2000-2006) 6 SOE 184 at 191 where it was held:

            “In civil cases the burden of proof is not static. Whilethe burden of proof initially lies on the Plaintiff, the proof or rebuttal of issues, which arise in the course of proceedings may shift from the plaintiff to the Defendant and vice versa.”

Thereafter the Claimant quotedthe answers elicited from DW1 under cross examination on 5th July, 2019 to demonstrate the ignorance of the DW1 on the composition of the committee as follows:

Q:        Are you familiar with the composition of the Committee, the Senior Staff Disciplinary Committee?

A:        As to the names, no. But is usually comprises members of the Senate and Governing Council with the Directorate of Counsel Affairs as the Secretary.          

  1.       Since you are not familiar with the names, what was the number of the people in the Committee?

A:        I cannot recall the number, although there is usually a static number as specified by the law and extant regulation of the school.

Q:        Since you do not know the number and the names of the people who constituted the Committee, I will also be correct to say that, you did not know the number of those that were nominated by the Senate?

A:        I cannot recall the number.

Arising from the above, it is the submission of the Claimant that the inconsistencies and endless equivocation in the evidence of DW1 have, no doubt, proved that, the testimony of the witness is hearsay and therefore unreliable and that, evidence of a party that is not believed cannot possibly form the foundation of any defence, legal or equitableas in the cases of Kakih v. PDP (2014) 59 NSCQR 1 at 61 and Alade v. Alemuloke & 2 Ors (1988) (Pt. 1) (Reprint) 1 at 8, lines 25-30.

In the further argument of the Claimant that even if the composition of theCommittee was faultless, the mere fact that the procedure for the consideration of the report failed to comply with the requirements of paragraph 2.21 (a) of Exhibit CW4render it void ab intio. The Claimant reiterated thatunder the said paragraph, the report of the joint committee must be “considered by the Senate and by Council”. The Claimant also asserted that there is evidence which is uncontroverted, that, Exhibit DW3, which is the sole mantra of the Defendants or any other report, was never considered by the Senate of the 1st Defendant before relying upon it to terminate the appointment of the Claimant.The Claimant invited the court to note that even DW1 admitted this under cross examination on 5th July, 2019 thus:

Q:        Was the report of the Senior Staff Disciplinary Committee considered by the Council?

A:        Yes, My Lord, all the reports concerning the Claimant that were made by the Committee were considered at various times.

Q:        The proceedings of the Senate of the 1st Defendant are usually recorded?

A:        Yes, My Lord.

Q:        And it is true that they are reproduced in the form of minutes?

A:        Yes, that is correct.

Q:        Was the report of the Senior Staff Disciplinary Committee considered by the Senate?

A:        No, My Lord. The Senate considers only student matters. It is the Governing Council that considers staff matters.

It is therefore the submission of Claimant that unless the report is first considered by the Senate, as mandatorilyrequired; it will be futile if the Council takes a decision there upon as the consideration of the report of the Joint Committee by the Senate is a sine qua non as envisaged by Exhibit CW4. In the case of U.N.T.H.M.B v. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 413, the Supreme Court held thus:

“Where a public body fails to comply with certain procedural safeguards in an enabling act or regulation, there is a breach of a duty imposed on it and it its decision in such circumstance is ultra vires. To render the decision void, however, the procedural provision must be mandatory and not merely directory. Thus, where the procedural provision is mandatory, a breach of it by the public body renders its decision ultra vires and void.”

The Claimant also submitted that since the evidence of DW1 above supported the case of the Claimant, the Court is entitled to rely upon it, without more as stated in the case of Akomolafe v. Guardian Press (2010) 3 NWLR (Pt. 1181) 338 at 351 where it was held:

Evidence elicited from a party or his witness under cross examination, which goes to support the case of the party cross-examining; constitutes evidence in support of the case or defence of the party.”

Third, and having regard to Exhibit DW3, the Claimantsubmitted that there was nothing incriminating or indicting in the report for the 3rd Defendant to have relied upon in terminating the appointment of the Claimant. In fact to the Claimant, the findings and recommendation of the Committee clearly supported the Claimant, in that at page.12, Recommendation No. 2 Exhibit DW3recommended thatthe panel headed by Prof. E.D. Okon should be reconstituted because “its report misled the Senior Staff Disciplinary Committee and Council”.

The Claimant also posited that even the content of Exhibits DW3 contradicted CW17. Whereas Exhibit CW 17 at page 2 contains record of proceedings where the Claimant appeared before the Panel and testified, Exhibit DW3, at page 4, (A) (2), it is stated “Dr. Inih Ebong was invited to appear before the Committee. He failed to do so.”

To the Claimant this contradiction is too material to be ignored and the court is entitled to reject the entire evidence as unproven given the fact that it cannot pick and choose which one to believe relying on Olaiya v. The State (2018) 10 NWLR (Pt. 1626) 1 at 18, line C. and Zakirai v. Muhammed (2017) 70 NSCQR (Pt. 2) 833 at 898, where the Supreme Court held:

“The law insist that, where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow.”

Similarly, the Claimant cited the case of Effiom v. C.R.S.I.E.C (2010) All FWLR (Pt. 552)1610 at 1631, ratio 1, in which the Supreme Court held:

“Itwill be extremely dangerous to uphold or sustain a claim in the face of glaring and unresolved conflicts in exhibits.”

The Claimant accused the Defendants of prevarication or evasiveness and noted the copious reference by the Defendants to the “damning report” of the panel of investigation of Prof. E. D. Okon on the allegation of sexual harassment against the Claimant but made no effort to tender the report before this court. To the Claimant, the deliberate withholding of the report by the Defendants knowing that if produced, the report would have been unfavourable to them entitled the court invoke the provisions of section 167 (d) of the Evidence Act, 2011; Onwiyuba & Ors v. Obienu & Ors (1989-1992) 3 SCE 574 at 581. The attempt by DW1 to avoid the question by alleging that, some documents were burnt in an inferno according to the Claimant is lame and unassailable as even a Police Extract of the incident was not made.It is therefore the submission of the Claimant that in the absence of the report the Court cannot speculate, after all the Court is an adjudicator and not an investigator. On this, the Claimant referred to the cases of Ajanaku v. Osuma (2014) All FWLR (Pt. 727) 698 at 724and Ogundele v. Agiri (2010) 9 WRN 1 at 35-36, ratio 12.

The Claimant also took a swipe atthe manner and procedure the report, Exhibit CW3, was presentedto the 3rd Defendant for being irregular and void. The Claimant also highlighted the disconnection between the report (Exhibit DW3) and the decision taken by the 3rd Defendant in Exhibit CW41.While it was recorded in pargraph 9, pages 16-22 of Exhibit 41 that, the 3rd Defendant received, considered and decided on the report of the Exhibit DW3, paragraph 9.2, pages 20-22 of Exhibit CW41 expressed no decision or comment on the alleged two cases investigated against the Claimant. It is therefore curious thatat page 38 paragraph (c) of Exhibit CW41, the 2nd Defendant presented another strange and yet to be identified report on the basis of which the appointment of the Claimant was terminated. The Claimant went ahead to refer to page 38, paragraph (c) of Exhibit CW41 thus:

“The Registrar thereafter presented a report on gross misconduct by Dr. Inih A. Ebong to Council. The report catalogued Dr. Ebong’s acts of gross misconduct since his employment by the University of Uyo in 1995.”

Under the circumstances, the Claimant asked on which of the reports did the 3rd Defendant rely on to terminate the Claimant’s appointment and submitted that if it is the latter report as presented by the 2nd Defendant, who was not a member of any panel or committee that investigated the Claimant, the purported termination was a nullity ab intio. The reason being that the Claimant cannot be suspended from duty on one allegation, while his appointment was terminated for a different allegation on which he was not heard. The Claimant alleged that there was no report of any panel or Committee set up by the 1st Defendant and headed by the 2nd Defendant to investigate the Claimant for gross misconduct against him and pointed out thelaughable and spurious contradiction in which he was accused of “gross misconduct”, while his appointment was terminated for “a case of serious misconduct” noting that they are not synonymous.

Noting that the contention of the Defendants that the appointment of the Claimant was validly terminated upon a “damning report” was to no avail, the Claimant submitted that there was no fair hearing on the allegations which led to his termination. To support this the Claimant submitted that the evidence before this court has shown that none of the allegations were communicated to him in violation of his right to be heard and that this failure to communicate these allegations meant there was a denial of fair hearing. The Claimant found judicial support for this in the cases of PHCN v. Offoelo (2013)16 WRN 28 at 48-49, ratio 2; Tsokwa & Sons Co. Ltd v. CFAD (1991) 5 NWLR (Pt. 291) 120; Bamboye v. University of Ilorin (1999) 70 LRCN 2146.

On the suspension of the Claimant, it was contended on behalf of the Claimant that it was tainted with illegality and fraught with anomalies. The Claimant admitted that byParagraph 2.25 of Exhibit CW4, the 1st Defendant is empowered to suspend any employee from duties as circumstances and occasion would arise. The Claimant quoted the exact provision of Paragraph 2.25 of Exhibit CW4thus:

            “A member of staff shall be suspended from duty where prima facie case (the nature of which is serious) has been established against him and it is considered necessary in the interest of the University that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the Vice Chancellor shall forthwith, suspend him from the exercise of the powers and functions of his office. A member of staff placed on suspension shall be entitled to only half of his monthly salary….

From the above provision the Claimant advanced three cardinal points. The first is that, the prerogative of suspension of a staff from duties is exclusive to and exercisable by the Vice Chancellor of the 1st Defendant. The second is that, the reason for suspension must be based on the establishment of a prima facie case of a serious nature against the staff. The third, and the most profound, is that, a staff can only be placed on “half of his monthly salary” onlyafter he has been suspended from duties. Applying these points to the facts of this case, the Claimant submitted that his suspension by the 3rd Defendant was wrongfully and illegally as the 3rd Defendant had no mandate under the regulations that governs the contract of employment to suspend him. To the Claimant it was a fact that his suspension was the decision of the 3rd Defendant, not the Vice Chancellor as required by law. This is clear from paragraph 2 of Exhibit CW18:

“This decision of Council takes effect from today, December 18, 2001.”

It is the further submission of the Claimant that the prerogative to suspend a staff of the 1st Defendant is exclusive to and exercisable only by the Vice Chancellor of the 1st Defendant and therefore not delegatable and that the principle of delegates non potest delegare is on all fours with the provisions of paragraph 2.25 of Exhibit CW4in respect of this case.

Another aspect in which the Claimant attacked his suspension and eventual termination is that these actions were taken during the pendency of Suit No. FHC/CA/CS/110/2001 challenging his suspension from duty. While the Motion restraining the Defendants from interfering with his employment, the Defendantswho entered appearance on 15thMarch, 2002 and applied for time to file processes,terminated the appointment of the Claimant on 28thMarch, 2002, 12 days before the adjourned date of 9thApril, 2002. The Claimant submitted thatthis action of the Defendants, alone, is enough to vitiate the decision of the Defendants on the Claimant relying on the settled law that, where there is a Motion on Notice or a dispute which has been submitted to the Court for adjudication, all parties must stay action as in Governor, Lagos State v. Ojukwu (1986) All NLR 194; Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 156) 514; AG, Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396; FATS v. Ezegbu (1993) 6 NWLR (Pt. 297) 1; Doma v. Igiri (1998) 3 NWLR (Pt. 960) 145.

Finally on the point, the Claimant while conceding thatan employer can suspend his employee in appropriate cases, submitted that the power is not absolute or total and does not deny the employee the right of actionif his right is violated. This is the position of the Supreme Court as elucidated in the case of Longe v. First Bank of Nigeria Plc (2010) 5 NSCR 1 at 29 Line B,where it was held thus:

Suspension is not a demotion and does not entail a diminution ofrank, office or position of the employee.  Certainly, it cannot import a diminution of the right of the employee given to him under the law.”

On the stoppage of Claimant’s salary, it was submitted that the stoppage of his salary before suspension and in the absence of any prima facie case against the Claimant by a person who had no prior authority, was a fundamental breach of both the procedural safeguard embedded in the Regulation and the right to fair hearing. It was the further argument of Claimant that it was not opened to the Director of Personal of the 1st Defendant vide Exhibit CW13, to issue the letter stopping the salary of the Claimant and thereafter proceeded to copy the Vice Chancellor of the 1st Defendant, who alone, was vested with the power to suspend beforethe stoppage of salary.Similarly, it was the case of the Claimant that Exhibit CW13 was issued on August 31, 2001, preceding the suspension of the Claimant vide Exhibit CW18 in December 18, 2001, a period of 4 months after the stoppage of his salary by a kangaroo agent of the 1st Defendant. The Claimant was therefore of the firm view that stoppage of his salarywas a nullity which in the eyes of the lawis void with no legal effect or consequences referring to Oyeneyin v. Akinkugbe (2010) All FWLR (Pt. 517) 597 at 613and Omoniyi v. Alabi (2015) All FWLR (Pt. 774) 181 at.197, ratio 5.

 

It is in the light of the foregoing that the Claimant urged this Courtto resolve Issue No. 2 in favour of the Claimant and grant all the reliefs sought.

Issue No.3: Whether the Claimant is entitled to the reliefs sought.

The Claimant answered this in the affirmative and reiterated that his employment has statutory flavour which placed it on a higher pedestal over and above the ordinary master and servant relationship.

The Claimant submitted that in an employment with statutory flavour, termination must be in strict compliance and in accordance with the relevant statute, otherwise it would be null and void. The Claimant found support for this proposition of the law in Patrick Ziideh v. Rivers State Civil Service Commission (2001) All FWLR (Pt 46) 821 at 828-829; CBN v. Jidda (2001) All FWLR (Pt. 47) 1065 at 1082; Iderima v. Rivers State Civil Service Commission (2005) All FWLR (Pt. 285) 431,431-445.

The Claimant submitted that he has shored up enough credible facts to have the court declare all the decisions and actions of the Defendant unlawful and ultra viresto entitle him an order of specific performance as held in Kabelmetal Nig. Ltd v. Gabriel Ativie (2001) All FWLR (Pt. 66) 662 at 678.

Not only that, the Claimant also submitted that he has copiously pleaded the ignoble role played by the 2nd Defendant in the arbitrary and unlawful stoppage of his salary, suspensionand the termination contrary to the provisions of the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit CW4). For effect, the Claimant cited the recent case ofB. S. S. C. v. Danjuma (2017) 7 NWLR (Pt. 1565) 432 at 455thus:

            “In a plethora of cases, courts have held severally that any action to terminate the employee’s service must comply with the statute or regulation governing his employment otherwise the termination will be null and void and the employee be entitled to remain in his employment.”

Consequently, the Claimant asked if under the circumstances he is entitled to an order of reinstatement and damages and found an answer in the recent Supreme Court casesof Comp. General, Customs v. Gusau (2017) NWLR (Pt. 1598) 353 at 378,lines HandBusari v. Edo State Civil Service Commission (2014) 42 NLLR 1 at 20, lines C-D.In Comp. General, Customs v. Gusau(supra), itheld:

The effect of a party terminating a contract of servicegoverned by regulations, rules or statutory instrument is that such arbitrary or unilateral termination is invalid and ineffectual.”

Similarly, in the case of Busari v. Edo State Civil Service Commission (supra) it was held:

Where a servant’s appointment is founded on statute or has statutory flavour and the appointment is not brought to an end in compliance with laid down procedure in the statute, he will be entitled to reinstatement as a matter of course without much ado.”

Flowing from the above and on the authority of Texaco Nigeria Plc v. Kehinde (2014) 42 NLLR 480 at523 line B; the Claimantsubmitted that he is entitled to damages for the unlawful stoppage of his salary, suspension from duties and termination of appointment by the Defendants. This is the approach and the law as stated in that case in which the Court held as follows:

“It follows therefore that the measure of damages in action for wrongful dismissal is founded on the law of contract. It is aimed at putting the injured party at the position he would have been but for the breach.”

          Decision of the Court

I have digested the facts of this case as given in the various processes and heard the witnesses and evaluated all the evidence particularly the copious documentary evidenceas it were, and I think two issues will determine the justice of this case:

 

  1. a)        Whether this Suit is not incompetent.

 

  1. b)       Whether the Claimant has proved his case to be entitled to any or all of the reliefs sought.

 

  1. a)        Whether this Suit is not incompetent.

           

The competence of this suit has been impeached by the Defendant on two (2) fronts. First, the factthis suit which commenced originally at the Federal High Court, Calabar by unsigned writ of summons and which was transferred to this court, was ab initio incompetent having not been signed by neither the Claimant nor by any legal practitioner. Second, the suit is incompetent as the three months period prescribed by the Public Officers Protection Actwithin which the action can be brought had long expired.

It should be noted from the onset that it is trite that a defective originating process cannot activate the court’s jurisdiction and failure to sign a writ or statement of claim goes to the root of the action. See the cases of Braithwaite v. Skye (2012) 12 S.C.N.J. 119,Alawiye v. Ogunsanya (2012) 12 S.C.N.J. 981-982, Okarika v. Samuel (2013) 2 S.C.N.J. 500-501, Obaro v. Hassan (2013) 2 S.C.N.J. 807 to mention but a few. To this extent, I find merit in the submission of the Defendants that Suit no. FHC/CA/CS/58/2002 is incompetent and incapable of initiating proceedings in the Federal High Court. But I am not prepared to accept that suit no. NICN/UY/33/2017 as instituted in this court is incompetent.I am therefore in total agreement with distinctions advanced by the Claimant to the effect that the cases cited by the Defendant dealt with the provisions of Section 2 (1) and 24 of theLegal Practitioners Act, 2004

and not with the transfer of a case from the Federal High Court to this court or any other courtfor that matter. For our purpose here, I have taken a careful look at the Compliant filed on the 22nd November, 2017 and can say the process does not suffer from the signature defects as it was duly signed by Edima Isua, Legal Practitioner with NBA NO. 04978913 in compliance with the rules of this court. So it will be unjust to declare this suit incompetent in that regard and I so hold.

 

On the suit being statute barred, it is on record that this same issue was canvassed and a ruling dismissing the objection delivered by my learned brother, Esowe, J on 26th September, 2016. The question now is, can an issue raised and conclusively determined at an earlier stage of a proceeding, be available for fresh consideration and determination at a later stage?For a complete answer, I will place reliance on two (2) cases, one from the Court of Appeal and the other from the Supreme Court. In the Court of Appeal case of Senator Chris Adighje v. Hon. Nkechi J. N. Nwaogu (2008) LPELR-3626 (CA), Eko, J.C.A., (as he then was) stated as follows:

 

“No trial judge or court has any legal justification to alter the effect of his own ruling or decision on an issue previously decided by him in the course of the proceedings:  See Nnajiofor v.  Ukonu (1985) 2 NWLR (Pt.9) 686 at p.706. He cannot also,as a general rule, set aside his ownor another Judge’s previous ruling. Rehearing the matter upon which he has delivered his decision or judgment is not his function, butthe function of the appellate or superior court: See Grace Amanoba v. Alex Okafor (1966) 1 ALL NLR 205 at 207; Chief Uku v. Okumagba (974)1All NLR (1) 475.”

 

Similarly, in the Supreme Court case of Dingyadi v. INEC (2010) 44 N.S.C.Q.R. 327-328,C. M. Chukwuma-Eneh, J.S.C.stated thus:

“In other words, the big deal is whether this court has become functus officio, thus lacking the power of entertaining this case. In this regard, having had another look at the principle of functus officio, it connotes that a court as this court, having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings. See: Mohammed v. Hussein (1998) 11-12 S.C.N.J. 136 at 163-164. Albeit, where a court has duly performed its duty by handing down its decision/ruling as in this case it has exhausted as it were, all its, powers with regard to that matter. And so, the court becomes functus officio and incapable of giving any decision or making any competent orders with regard to the same matter it has previously decided for want of the jurisdiction to do so.”

In any case, I am at one with the Claimant that the application of the Public Officers Protection Act on this case being one rooted in contract of employment is no more tenable.In his concurring judgment,in the very recent case of National Revenue Mobilization Allocation and Fiscal Commission & Ors v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247 at 279, Kumai Bayang Aka’ahs, J.S.C., put this beyond reproach thus:

 

“Since the action instituted by the respondents is a contract of employment, the Public Officers Protection Law cannot be invoked to bar the action undertaken by the plaintiffs/respondents. The main appeal therefore fails and it is dismissed.” 

 

In the final analysis, it is my finding and holding that that this suit is competent and deserves to be heard on the merit.

 

  1. b)       Whether the Claimant has proved his case to be entitled to any or all of the reliefs sought.

 

The case of the Claimant is that the stoppage of his salary, the indefinite suspension and termination of appointment by the Defendants without following due process were malicious, unlawful and therefore null and void. Generally, the law is that he who asserts must prove and since this is the assertion of Claimant, the burden is on him to so prove. I have identified three (3) actions of the Defendants the Claimant wish to declare null and void and wish to consider them in turns.

 

My first port of call is the stoppage of Claimant’s Salary. A recap of the facts here will do no harm. On 3rd September, 1999, the Claimant who had never gone on annual leave, applied for deferment of his leave, pursuant to the 1st Defendant’s policy directive vide Exhibit CW7. The application was refused for being against the policy of the 1st Defendant with a proviso that the leave should be taken as and when due and that the Registrar and the Dean should be informed “when you are ready to proceed on the leave”. These are Exhibits CW8 and CW9 dated on the same day i.e 2nd November, 1999. On the strength of Exhibit CW10, the Claimant rescheduled his leave”from June, 2001, when the academic session will be in progress.” The Claimant then applied for annual leave on 11thJune, 2001, through the Head of Department of Theatre Arts, who recommended on 12thJune, 2001 and was approved by the 2nd Defendant on 22ndJune, 2001. This is the Leave Certificate, Exhibit CW11. The leave was to runfrom 1stAugust, 2001 to 12thSeptember, 2001. The Claimant resumed duty from Annual Leave on 12th September, 2001 as evidenced in Exhibit CW12. While on leave, the Defendants stopped the salary of the Claimant on 31st August, 2001 with retrospective effect from 1st August, 2001. This is Exhibit CW13. By Exhibit CW15, the Defendants wrote to the Claimant accusing him of abandonment of duty and threatening to take severe disciplinary action against him. In reply, the Claimant wrote Exhibit CW 16, explaining the circumstances that led to his going on the annual leave for 2001. Thereafter and on 15th October, 2001, the Defendantsconstituted a panel to investigate the allegation of abandonment of duty by the Claimant. The Claimant appeared before the panel to deny the allegation and to posit that the Leave Certificate speaks for itself and declined any further comment because the matter is in court. At the end of its deliberations, the panel found that the Claimant never went on leave for the past five (5) and was authorised to proceed on leave by the Registry upon the recommendation of his Head of Department and recommended that “The University should reverse the punishment if any already meted on Dr. Ibong.” This is found in Exhibit CW17. This is the evidence of the Claimant on the events leading to the stoppage of his salary which is clearly punctuated by documentary evidence.

 

For the Defendants, the justification for stopping the salary of the Claimant can only be found in paragraphs 10 and 11 of the Statement of Defence. Paragraph 10 is to the effect that the Claimant went on leave during school session against the directive of 1st Defendant. Paragraph 11 only asserted the Defendants power to stop the Claimant’s salary and suspend him to enforce discipline in the university.

 

The validity or otherwise of the stoppage of Claimant’s salary can only be determined upon a consideration of the available evidence against the provisions of the Regulations Governing the Conditions of Service, 1998 (Exhibit CW 4). The pertinent provision is Chapter 2.24, Termination on Absence from Duty, which provides thus:

 

“A member of Senior Staff who absents himself from duty without leave or who fails to resume duty at the end of a leave period shall forfeit his salary for the period of his absence and shall render himself liable to be removed from office without formality and the onus shall rest on him to show that the circumstances do not justify the imposition of the full penalty.”

           

            From the evidence of the Claimant, I am of the firm view that he has discharged the onus placed on him to justify the non-imposition of the penalty on him of either removal from office or forfeiture of salary for the period. Not only did the Claimant proceeded on leave upon recommendation and authorisation of his Head of Department and Registrar but he has resumed duty at the expiration of the leave. This is also the stand of the Panel constituted to investigate the alleged abandonment of duty by the 1st Defendant. A further perusal of the record of event also reveals some fair hearing infractions by the Defendant. The Claimant’s salary was stopped on the 31st August,2001 with retrospective effect from 1st August, 2001 without being notified. In a serious allegation of absence from work which is likely to result in dismissal, the Claimant should have been at least confronted with the allegation or the documents to be used against him. See the case of F.M.C, Ido-Ekiti v. Alabi (2012) 2 NWLR (Pt. 1285) 411 CA. The letter of query dated 18th September, 2001 (Exhibit CW15) and the Panel constituted to investigate the matter on 15th October, 2001 are clear after-thoughts and akin to medicine after death. I have therefore no doubt in finding and holding that the stoppage of Claimant’s salary was utra vires, unlawful, null and void.

 

Next is the issue of suspension. The suspension is procured by a letter dated 18th December, 2001 tendered in evidence as Exhibit CW18. The reason for the suspension is given in paragraph 2 of the letter as:

 

“As a public servant you are required to resign your appointment or seek for and obtain the consent of your employer (the University of Uyo) before you can bring any form of litigation against it. In the circumstance that you did not do either, you are hereby suspended with half pay (basic salary only) until the case you have instituted against the University is disposed of. This decision of Council takes effect from today, December 18, 2001.”   

`

The Claimant asserted that his suspension was wrongful and illegal. It is therefore his duty to prove the wrongfulness and illegality of the said suspension.In his effort to proof this, the Claimant argued that by the Regulation (Exhibit CW 4) at paragraph 2.25,the prerogative of the suspension of a staff is exclusive and exercisable by the Vice Chancellor of the 1st Defendant and not that of the 3rd Defendant as evidenced in the letter of suspension (Exhibit CW18). The reason for the suspension must also be based on the establishment of a prima facie case of a serious nature against the staff which is non-existent. And that a staff can only be placed on half monthly salary only after he has been suspended. Under the foregoing circumstances, the Claimant argued that the stoppage of salary before suspension, the absence prima of a facie case against him and the suspension by a person with no authority constituted fundamental breach of both the Regulations and his right to fair hearing. It is also the position taken by the Claimant that even though the Defendants have a right to suspend the Claimant, that right cannot deny the Claimant the right of action where his right is violated or there is a fundamental breach of the conditions of his service as in this case. The Claimant further placed on record that his suspension and eventual termination were done during the pendency of suit FHC/CA/CS/110/2001 in flagrant breach of the rule of law and in contempt of court as shown in Exhibits CW20 to CW24.

 

As their only defence on this, the Defendants submitted that an employer can suspend his employee pending investigation and such suspension will not give rise to a right of action and sought support in the cases of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) PA 142 Para F-L; Amadiume v. Ibok(2006) 6 NWLR (P7975) P. 158 R. 4; Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (P7 1189) Pg. 1 060 Para E.The Defendants also maintained this stance that suspension does not entitled the Claimant to a right of action in paragraph 11 of the Statement of Defence.I want to state straight away that the cases cited by the Defendants did not say suspension do not give a right of action. The correct position as reiterated in these cases is that a master can suspend his servant when necessary and there can be no issue of breach of his fundamental rights. In the case of Ayewa v. University of Jos (2000) 2 S.C.N.J. 246, for example, S. O. Uwaifo, J.S.C. stated the position thus:

“The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety levelled against him can have a recourse to the Fundamental Rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.”    

 

Be that as it may,it now settled that an aggrieved employee has the right to approach this Court to challenge his/her suspension. The only condition is for the Claimant to  show that the suspension is unnecessary, unreasonable, invalid and hence unlawful.SeeBisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited (2015) 62 NLLR (Pt. 216) 40.

 

It is now imperative to refer to the exact provision of regulations dealing with suspension and see if the reasons advanced by the Claimant will prove the unlawfulness of the suspension. Paragraph 2.25 of The Regulations Governing the Conditions of Service, 1998 (Exhibit CW 4) provides thus:

            “A member of staff shall be suspended from duty where prima facie case (the nature of which is serious) has been established against him and it is considered necessary in the interest of the University that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the Vice Chancellor shall forthwith, suspend him from the exercise of the powers and functions of his office. A member of staff placed on suspension shall be entitled to only half of his monthly salary for the first three months of that suspension. Thereafter, the case shall be reviewed provided that if it is considered that he should still continue on suspension, he shall be placed on one half of his salary for a final period of three months after which the case shall be determined by the relevant Appointment and Promotion Committees.

The Claimant complained that his suspension was a breach of his right of fair hearing. This is untenable in law because when it comes to suspension, the question of fair hearing and/or natural justice is immaterial. See the case of Longe v. First Bank Nigeria Plc (supra) where it was held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also Ayewa v. University of Jos (supra), Akinyanju v. University of Ilorin(2005) 7 NWLR (Pt. 923) 87 andShell Pet. Dev. Co. v. Lawson Jack (1998) 4 NWLR (Pt. 545) 249.The submission of the Claimant on this issue is therefore hereby discountenanced.

 

The Claimant also complained that there was no prima facie case against him of a serious nature to warrant further investigation. There is force in thisassertion in the sense that the Claimant was accused of taking his employers to court which is a completed act as is shown in exhibits CW20 to CW23 and therefore requires no further investigation or suspension. It is therefore unreasonable for the Defendants to embark on suspension when they can head-long tackle the disciplinary issue. Similarly, suspending the Claimant until the case he instituted is disposed of is not only unreasonable but in clear breach ofParagraph 2.25 which does not envisage an open-ended suspension. The paragraph provided for first period of the months and the final period of three months after which the matter should be referred to any of the disciplinary committees. See Sergeant Nte Ibada v. The Inspector-General of Police, Suit no. NICN/LA/91/2013, delivered on 3rd March, 2017, per B. B. Kayip, J.(as he then was).

 

There is alsothe issue of the suspension by the 3rd Defendant instead of the Vice Chancellor of the 1st Defendant in clear violation of Paragraph 2.25.A perusal of the letter of suspension (Exhibit CW18) vis-à-vis paragraph 2.25 of The Regulations Governing the Conditions of Service, 1998(Exhibit CW 4) confirms this in no uncertain terms. This apparent anomaly or irregularity has successfully impeached the lawfulness of the suspension. See the case of A.G, Kwara State v. Abolaji (2009) 7 NWLR (Pt. 1139) 199 CA, where it was held that any disciplinary action taken pursuant to a statute, law or rule, there must be full compliance with law before the disciplinary action can be properly justified.

 

Last but not the least is that this suspension was done during the pendency of suit FHC/CA/CS/110/2001. This to say the least is done to pre-empt the court and overreach the Claimant thereby giving credence to the unlawful nature of the suspension. From all I am saying, the Claimant has been able to prove that his suspension was unnecessary, unreasonable and unlawful.

 

I am now left with the termination of Claimant’s employment. In the considering the legality or otherwise of the Claimant’s termination, I will be guided at all times by the dictates of the Supreme Court in a long line of cases such as Kato v. CBN (1999) 6 NWLR (Pt. 607) 390, Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 and Ziideel v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554.The underlining principles in all these cases and many more, is to the effect that an employee seeking the declaration that the termination of his appointment is a nullity must plead and prove the following material facts:

  1. a)The nature of the employment.
  2. b)The condition of service.
  3. c)The circumstances under which the appointment can be terminated.

 

I intend to analyse the pleadings and evidence in this case in the light of material facts (a-c) above and will only refer to the argument of the parties where necessary.

 

On the nature of employment, the consensus is that the relationship between the parties in this case is one clothed with statutory flavour enjoying special legal status over and above the ordinary master and servant relationship. The foundation of the Claimant’s case are the Offer of Appointment as Senior Lecturer (Exhibit CW1), theTermination of Appointment (Exhibit CW5) and the Regulations Governing the Conditions of Service, 1998 (Exhibit CW 4).So, the basic principles governing the contract of employment with statutory flavourwill hold sway here.In this sort of relationship, employment must be terminated in the way and manner prescribed by the relevant statute or regulations and any other manner of termination inconsistent thereof is null and void and of no effect.

 

Next is the circumstances under which the appointment can be terminated.Generally, the onus is on the Claimant to prove that the determination of his employment is unlawful, null and void. But where, as in this case, the employer gives a reason or cause for the determination of the appointment, the law imposes on the employer the duty to establish the reason to the satisfaction of the court. See the cases of Shell v. Olarewaju (2008) 12 S.C.N.J.(Pt. 11) 696-697and Institute of Health v. Anyip (2011) 5 S.C.N.J. 262, whereC. M. Chukwuma-Eneh, J.S.C. put it succinctly thus:

 

“Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has proffered any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more.”

 

The reason given by the Defendants for the termination of the Claimant’s appointment can be found in Exhibit CW5:

 

“The University Governing Council had at its 32nd meeting held on Wednesday, March 27, 2002 considered a case of serious misconduct made against you. Council decided that your services are no longer required with effect from the date of this letter. Your appointment is hereby terminated.”

 

It should also be notedthat the case of the Defendants is that the Claimant’s employment was determined in compliance with sprit and letters of the Regulations Governing the Senior Staff Conditions of Service of the University of Uyo (Exhibit CW4). Under the circumstance,the onus is also on the Defendants to so prove.See the case of Mgt. Board v. Ejitagha (2000) 6 S. C.N.J 280, whereE. O. Ayoola, J.S.C. put it bluntly:

 

“The law is also trite that where a person, body or authority claims to have acted pursuant to powers granted by a statute, such person, body, or authority must justify the act, if challenged, by showing that the statute applied in the circumstances and that he or it was empowered to act under it.”

 

The question now is,can the Defendantsbe said to establish “a case serious misconduct” to justify the termination of the Claimant’s employment and in accordance with the Regulations Governing the Senior Staff Conditions of Service of the University of Uyo (Exhibit CW4)? At the risk of repetition but for clarity, the provision of the Chapter 2, paragraph 2.20 Exhibit CW4 is reproduced:

 

“The appointment of any member of the academic staff who, holds an appointment until retiring age shall not be determined by the Council unless there has been an investigation relating to his case by a Joint Committee nominated by the Council and the Senate of which Joint Committee, at least one third of the members, have been appointed by Senate and the person concerned, has, if he so requests, been permitted to appear to defend himself in person or through his chosen representative before the Joint Committee, and the report of the Joint Committee considered by the Senate and by the Council which shall take an appropriate decision on the case.”

 

To answer this, there is the need to have a re-cap of the case and arguments of the Defendants. The 1st defendant submitted that it complied to the hilt with the provisions of its Regulations in determining the appointment of the Claimant by the following actions:

 

  1. a)       Setting up investigative panels to investigate various acts of misconductlevelled against the Claimant.

 

  1. b)       Thepanels invited the Claimant, took evidence and submitted its
    reports to a Joint Committee appointed by the senate also christened Senior Staff Disciplinary Committee.

 

  1. c)       The Joint Committee duly invited the Claimant who not only replied to
    the letter of invitation but attended the sitting of the Committee once.

 

  1. d)       A report of this Committee was eventually presented to the senate and
    ultimately the Governing Council being the highest decision making body in the University.

 

  1. e)        The Council considered all the Reports and came to a conclusion that the services of the Claimant was no longer required.

 

Now, given the circumstances of this case, are the contentions of the Defendants enough to discharge the burden of proving a serious misconduct for the termination or any justification under Exhibit CW4? I think not.To start with, the letter of termination (Exhibit CW 5) itself tersely stated the reason for the determination as “a case serious misconduct”without more. What constituted serious misconduct or gross misconduct against the Claimant can only be a subject of guess work. Could it be is a case of serious misconduct as evidenced in the letter of termination (Exhibit CW5)? Could it be the allegation of sexual harassment which got a mention in the minutes of the meeting of 3rd Defendant (Exhibit CW41) and Report of the Senior Staff Disciplinary Committee (Exhibit DW3)? Could be the rested issue of abandonment of duty? Or the allegation of walking out on a panel which appeared in CW41 and DW3?In all the 57 documents tendered (54 by the Claimants and 3 by the Defendants), there was no query on serious misconduct, gross misconduct, sexual harassment or walking out of a panel.In fact, there was no serious effort to even investigate these allegations against the Claimant or enough materials placed before the court. Be it noted that there is no fixed rule defining the degree or level of misconduct that will justify a dismissal or termination and that it is enough if the conduct is grave and weighty as to undermine the confidence of the employer on the employee. See Ajayi v. Texaco Nigeria Limited (1987) 3 NWLR (Pt. 62) 577 SC.Even with this liberal position of the law, the Defendants have failed to prove any case of serious misconduct against the Claimant to warrant his termination. I so hold.

 

Second, the submission of the Defendants that Claimant’s termination was in compliance with regulations is suspect. From the records, only two committee reports are tendered in this suit, one is the Report on the Investigation Panel on the case of Abandonment of Duty (Exhibit CW17) and the other the Report of the Senior StaffDisciplinary Committee (Exhibit DW3). There is no evidence that the said Committees are Joint Committees nominated by Senate or Council in accordance with Regulation 2.20. Even the name “Senior Staff Disciplinary Committee” has put paid to the fallacy of the Defendants that it a Joint Committee. Can Federal Government Appointees or the representatives of Federal Ministry of Education on the Council be members of 1st Defendant’s Senior Staff Disciplinary Committee? Your answer is as good as mine.I am therefore in total agreement with the Claimant that the Senior Staff Disciplinary Committee is unknown to the regulations of the 1st Defendant (Exhibit CW4) in terms of both nomination and composition as under paragraph 2.21 (a) of Exhibit CW4 it should be a “Joint Committee” to be “nominated by Council and the Senate”, of which “at least one third of the members.”It is also equally true that Defendants have failed to establishthe composition of the members in both their pleadings and evidence of DW.Similarly, there is no evidence that the report considered by 3rd Defendant passed through the Senate as envisaged by the paragraph 2.21 (a). This alone on the authority of U.N.T.H.M.B v. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 413 renders the decision to terminate the appointment of the Claimant ultra vires.

 

Third, the minutes of the 3rd Defendant held on Wenesday, 27th March, 2002 (Exhibit CW41)also leaves much to be desired. This is the proceedings which sealed the fate of the Claimant as it were. It is based on the presentation of a report on gross misconduct against the Claimant by the Registrar, Mr. P. J. Efiong. The Report catalogued Claimant’s acts of gross misconduct since his employment in 1995 which led the 3rd Defendant to observe among others: that the Claimant had caused problems in the Department of Theatre Arts and consistently undermined Investigation Panels set up by Management by refusing to appear before the panels, abusing members and walking out on the panels. Examples were given of the panels headed by Prof. E. D. Okon and Prof. O. E. Ekpo.It is also reported that the 3rd Defendant also considered the report of Prof. E. D. Okon’s panel in which the Claimant was “indicted” for walking out of the panelset up to investigate a case of sexual harassment against the Claimant. The panel recommended the dismissal of the Claimant.

 

From the barrage of documents tendered in this case and the evidence by the parties, I cannot see where the case of gross misconduct is made out against the Claimant. The case of sexual harassment remained passive with no evidence without documentary evidence or otherwise, to make it active or give it life. The only resemblance of an act of gross misconduct was the allegation of walking out on the panels. Even here, if the 3rd Defendant had done its homework properly and probed further, it would have found that the Claimant had a viable defence. It is in evidence that the Claimant was invited to appear before the Senior Staff Disciplinary Committee on a case of walking out on a panel which investigated a case of gross misconduct against him. The letter of invitation dated 25th January, 2002 was served on the Claimant on 28th January, 2002 at 8.20 a.m for a meeting scheduled for 10 a.m. See Exhibit DW1. By Exhibit DW2, the Claimant not only responded to the letter of invitation with a promise to appear for the purpose making some fundamental observations, to wit: That invitation was served a few hours to the time of sitting of the Committee so that the Claimant will not have enough time to organize his mind and prepare for his defence. That the Claimant was not availed with a copy of the allegation against him to prepare for his defence. Under cross-examination on 27th March, 2019, the Claimant testified that he made good his promise and appeared before the Committee under protest and registered his observations, among which were some of the members of the Committee such as the 2nd Defendant, Prof E. Okon, Dr. Effiong E. Inyang, Mr. Samsom Brown and Mr. Ukana should disqualify themselves for likelihood of bias. The Claimant also challenged the composition of the said panel because there was no representatives of the Senate in contravention of paragraph 21.4 of Exhibit CW4. I am not sure if the foregoing information were available to the 3rd Defendant during the proceedings of 27th March, 2002.

 

Four, the question is which Panel Report the 3rd Defendant considered in arriving at the Decision to terminate the employment of the Claimant.There are only two (2) Panel Reports in evidence in this suit. Exhibit CW17is the report on the case of abandonment of duty to which the Claimant was absolved. DW3 is the report of the Senior Staff Disciplinary Committee to investigate the case of the Claimant’s walking out on a Panel but which ended in recommending the reconstituting the Panel of Investigation headed by Prof. E. D. Okon for being high-handed as it could not ensure fair hearing and for misleading the Senior Staff Disciplinary Committee and 3rd Defendant. So the decisions taken by the 3rd Defendant could have been borne out of these two (2) panels. I must say I am as confused as the Claimant on this. Was it the nameless report which catalogued the Claimant’s acts of gross misconduct since 1995 presented Registrar?  Or was it the elusive and discredited report of the panel headed by Prof. E. D. Okon? Whichever of these reports relied upon by the 3rd Defendant, it should be noted that the Defendants have failed or/and neglected to tender the reports in evidence. I therefore agree with the Claimant that the withholding of any of this report is deliberate knowing that if produced it would be unfavourable to the Defendants. I also find section 167 (d) of the Evidence Act, 2011 and Onwiyuba & Ors v. Obiena & Ors (1989-1992) 3 SCJE 574 at 581cited by the Claimant apposite on this.

 

Five and the most crucial one is that the decision of the 3rd Defendant is not carried in compliance with the rules of natural justice. In Oloruntoba-Oju v. Abdul-raheem (2009) 6 S.C.N.J. 47, the Supreme Court has stated what compliance with Rules of Natural Justice in terminating the appointment of a University employee entails as:

 

(1)      That the complaint must be brought to the notice of the person and

(2)      He must be given an opportunity of making representation in person to council on the matter.

The Claimant was not afforded the opportunity of being heard by the University Council(3rd Defendant) before his appointments was unilaterally and prematurely terminated on 27th March, 2002 upon a questionable report. The decision of the 3rd Defendant fell short of the standard of fair hearing and is hereby declared null and void and no effect whatsoever. I take judicial cover in the dicta of A. M. Mukhtar, J.S.C.(as she then was) in Olufeagba v. Abdur-Raheem (2009) 12 S.C.N.J. 392:

 

“As the appellants were not afforded fair hearing, by being invited to make their representation, the above provision of the constitution has been violated, and so their dismissal from the employment of the respondents was not in accordance with the tenets of the law. Authorities abound that in a case of this nature with same facts where a party is deprived of his livelihood, a contravention of the law that requires that an aggrieved party must be availed the opportunity to be heard renders the termination or dismissal null and void. See Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (pt. 9) 599, Busari v. Edo State Civil Service Commission (1999) 4 N.W.L.R. (pt. 599) 365, and Eperokun v. University of Lagos (1986) 4 N.W.L.R. (pt. 34) 162.”

 

The next question is, what is the fate of the Claimant’s reliefs in this case? Having found that the stoppage of Claimant’s salary, suspension and termination of appointment unlawful, null and void, the Claimant is automatically entitled to all the declaratory reliefs sought.

 

Similarly, reliefs (d) and (e) succeeds because the order of reinstatement follows naturally upon the declaration of an employment with statutory flavour null and void. The effect of such a pronouncement is that the Claimant was always and still is an employee of the Defendants. See Iderima v. Rivers State (2005) 7 S.C.N.J. 511.

 

The relief (g) for N50,000,000.00 damages for violation of Claimant’s fundamental right to fair hearing and right of access to court cannot stand. This is because with the order of reinstatement, the issue of measure of damages for such reliefs becomes irrelevant as upon reinstatement the Claimant is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as when due and payable. See the case Ekeagwu v. Nig. Army (2010) 42 (pt. 2) N.S.C.Q.R. 1248.

 

Relief (f) for an order that the Defendants approve and allow the Claimant to take and enjoy his accumulated annual leave of 30 working days a year from May 1995 when he joined the service of the 1st Defendant, and his research leave of 26 days a year from May 1995 when he joined the service of the 1st Defendant is not tenable and hereby refused.

 

Reliefs (h) and (i) for N50,000,000.00 and N100,000,000.00 for aggravated damages and exemplary damages respectivelyhave the same import. Both are usually designed to compensate the wounded feelings of the successful party especially where the Defendant’s conduct discloses malice, fraud, cruelty, disregard of the law etc to merit punishment. See the cases of G.K.F. Investment v. Nigeria (2009) 7 S.C.N.J. 115-116 and Marine Management v. N.M.A. (2012) 12 S.C.N.J. 163.For all the Claimant endured since 2002, I think he deserves compensation. The Defendants hereby awarded N10,000,000.00 as aggravated and exemplary damages.

 

For the avoidance of doubt, it is hereby declared as follow:

 

  1. a)      A declaration that the stoppage of the Claimant’s salary, the indefinite suspension of him from duties, and the purported termination of his appointment, by the Defendants without due process were malicious, ultra vires; and unlawful, and therefore null, void and of no effect whatsoever.
  2. b)      A declaration that the indefinite suspension of the Claimant from duties for taking his employer to court was a flagrant breach of the Claimant’s right of access to court, and is therefore unlawful, null and void and of no effect whatsoever.

 

  1. c)      A declaration that the purported termination of the Claimant’s appointment by the Defendants was actuated by malice, improper motives and bad conscience.

 

It is also hereby granted as follow:

 

  1. a)      A mandatory order compelling the Defendants, their servants, agents, assigns, and privies, howsoever known or called to withdraw forthwith their letter with reference number UU/REG/76/Vol.1/52 dated 28thMarch, 2002 terminating the Claimant’s appointment and reinstate the Claimant to his duty post with effect from 28thMarch, 2002 when they terminated his appointment and, further, to restore the Claimant’s salary that was stopped; withdraw forthwith their indefinite suspension of the Claimant from duties, and pay to the Claimant all the salaries, allowances and non-pecuniary entitlements accruing to him since 1st August, 2001 when his salary was stopped and from 28th March, 2002 when his appointment was wrongfully and unlawfully terminated.

 

  1. b)      An order that the Defendants pay in addition to the Claimant the equivalent of his full annual salaries and allowances for the 2001/2002, 2007/2008 and 2014/2015 academic years, being the academic years the Claimant should have proceeded on Sabbatical leave in accordance with the terms and conditions of his employment, had the Defendants not unlawfully suspended him indefinitely from duties and terminated his appointment.

 

  1. c)      An order for the Defendants to pay the Claimant the sum of N10,000,000.00 as aggravated and exemplary damages.

 

  1. d)        All orders a), b) and c) shall be complied with within 30 days from today.

 

Judgment entered accordingly.

 

 

 

………………………………………

 

HON. JUSTICE M. A. NAMTARI