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National Industrial Court

DR. KAYODE NIYI AFOLAYAN & ors -VS- UNIVERSITY OF ILORIN & 3 ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP:  HON. JUSTICE A. A. ADEWEMIMO

DATE:  27TH NOVEMBER, 2018                          SUIT NO:  NICN/IL/16/2017

BETWEEN

  1. DR. KAYODE NIYI AFOLAYAN
  2. DR. OLOYEDE SOLOMON OYELEKAN                      . . . CLAIMANTS

AND

  1. UNIVERSITY OF ILORIN
  2. UNIVERSITY OF ILORIN GOVERNING COUNCIL            . . DEFENDANTS
  3. THE VICE CHANCELLOR, UNIVERSITY OF ILORIN
  4. THE REGISTRAR, UNIVERSITY OF ILORIN

REPRESENTATION:

  1. A. ALAJO FOR THE CLAIMANTS
  2. O. ATOFARATI FOR THE DEFENDANTS

                                        JUDGMENT

The Claimant by a Complaint before this Court on the 15th December, 2017 claims against the Defendant as follows:

  1.             A DECLARATION that the Defendants did not follow the due process of law before purporting to terminate the appointment of the Claimants as conveyed in the letters of Termination of Appointment dated 19th September, 2017 and consequently the purported termination is unconstitutional, ultra vires, null, void and of no effect whatsoever.

 

  1.             A DECLARATION that the purported letter of warning dated 20th August, 2015, Internal Memo dated 17th May, 2016, and the Letter of Query dated 11th July, 2016 were maliciously and oppressively issued without justification against the 1st Claimant by the Defendants, hence, null, void, of no effect whatsoever and amount to unfair labour practice, which ought to be retracted by the Defendants.

  iii.            A DECLARATION that the purported letters of Query dated 6th February, 2017, the Letters of Suspension dated 7th February, 2017 and consequent letters of Termination of Appointment dated 19th September, 2017 were maliciously and oppressively issued without justification against the Claimants by the Defendant, hence, null, void, of no effect whatsoever and amount to unfair labour practice and abuse of office, which ought to be retracted by the Defendants.

 

  1.             A DECLARATION that the refusal of the Defendants to accept the applications/publications of the Claimants for consideration for the 2017 Promotion Exercise amounts to unlawful denial of earned promotion thus, constitutes unfair labour practice against the Claimants.

 

  1.             AN ORDER compelling the Defendants to forthwith retract the queries, suspension and termination of appointment maliciously and oppressively issued and meted out against the Claimants.

 

  1.             AN ORDER directing the Defendants to reinstate the Claimants forthwith and to pay them in full all their accrued income/salary arrears from the date of the purported suspension till the date of their reinstatement and thenceforth without loss of promotion countenanced every three years interval starting from 1st October, 2017 when they were due for another promotion after their last promotion.

 

vii.            AN ORDER directing the Defendants to pay the Claimants each the total sum of eight hundred and five thousand, four hundred and thirty two naira, thirty two kobo (N805,432.32) being their unpaid half salaries from February 2017 to September 2017.

 

viii.            AN ORDER directing the Defendants to pay to the Claimants each the total sum of two hundred and ninety one thousand, three hundred and fifty eight naira, eight kobo (N291,358.08) being their gross monthly salaries as Senior Lecturers on CONUASS 05 STEP 01 from October 2017 until their reinstatement.

 

  1.             A CONSEQUENTIAL ORDER compelling the Defendants to specially process and automatically promote the Claimants in arrears to any and every successive positions attainable by them by effluxion of time during the pendency of this suit, so that there will be no loss of rank, seniority, income or perquisites of office, and to resolve any doubt in this regard in favour of the Claimants.

 

  1.             A Sum of N20 million as aggravated and/or exemplary damages for the malicious and oppressive manner the Defendants have used their offices to victimize, witch-hunt and oppress the Claimants.

 

  1.             AN INTEREST of 25% per annum on the total judgment sum as may be awarded by this Court from the date of judgment until same is finally liquidated.

 

xii.            Cost of this case as may be accessed by the Court.

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendants filed a memorandum of appearance, joint statement of Defence and other accompanying processes.

The case of the 1st Claimant is that he is a lecturer in the Department of English, Faculty of Arts of the 1st Defendant and currently the Chairman, Academic Staff Union of Universities (ASUU) of the 1st Defendant’s branch.  The 1st Claimant was employed as Assistant Lecturer on 14th September, 2009 and had his appointment subsequently confirmed, and have been promoted many times, with his last promotion in 2014, from Lecturer II to Lecturer I. He had served the 1st Defendant in various capacities as Level Adviser, Member of Room Usages and Time Table Committee, Assistant Exams Officer in the Department of English, etc.

The 2nd Claimant on the other hand stated that he is a lecturer in the Department of Science Education, Faculty of Education of the 1st Defendant and currently the Secretary, Academic Staff Union of Universities (ASUU) of the 1st Defendant’s branch. The 2nd Claimant was employed on 29th September, 2011 and was subsequently confirmed by the Defendants and have also been promoted once, his last promotion was from Lecturer II to Lecturer I.  He had acted successfully at different times in various capacities like Departmental Welfare Officer, Postgraduate Seminar Coordinator, Coordinator of Undergraduate Sandwich Programmes, Member of Technical Committee for Regional Centre Expertise, e.t.c.

The Claimants claimed that the Defendants started their witch-hunt, victimization and hostility towards them the moment they became active and well involved in the ASUU unionism of University of Ilorin Chapter, and when the 1st Claimant became the Acting Secretary of ASUU, between 2013- 2016 and the 2nd Claimant Secretary of ASUU, in 2016.  The claimants stated that the Defendants vitriolic plans to edge them out of the 1st Defendant started when the 4th Defendant wrote the 1st Claimant in his personal capacity, a letter titled “RE: OF SANCTIONS AND IMPOSTORS … AND PROFESSORSHIPS: LETTER OF WARNING” dated 20th August, 2015 accusing him in his personal capacity, of the opinion and views of the ASUU, 1st Defendant branch expressed in the Union’s newsletter and warned him thereby at the risk of appropriate sanction.  The 1st Claimant in response pointed out the inappropriateness of directing the letter under reference to him instead of the union which issued the newsletter and advised that the letter be directed appropriately. The 1st Claimant later received another Internal Memorandum dated 17th May, 2016 from his Head of Department requesting him to supply evidence of permission to be absent from duty on the 5th and 6th May, 2016 to which he responded that he was not absent on the said dates. Instead of the Defendants to apologise to the 1st Claimant for accusing him wrongly without justification, he averred, the Defendants in their acerbic and orchestrated moves to indict him at all cost served him with a QUERY dated 11th July, 2016 and in his response to the query, he reiterated his earlier position by denying the allegation.  Surprisingly, the Defendants without any proof of the said allegation issued and served on the 1st Claimant a warning letter, of which the 1st claimant protested to no avail.

The claimants aver that on the 6th of February, 2017, the Academic Staff Union of Universities (ASUU), 1st Defendant Branch under the leadership of the 1st Claimant sent a letter titled “The Scourge of Nepotism and Favouritism in University Appointment and Promotion: The Heinous Case of Dr (Mrs) Taiye Ambali”, drawing the attention of the 1st, 2nd, 3rd and 4th Defendants to the anomalies in the appointment and promotion of one Dr. (Mrs) Taiwo Toyin Ambali who is the wife of the then Vice Chancellor, Prof. Abdul Ganiyu Ambali. The claimants alleged that this led to another query accusing them circulating an inciteful leaflet in the course of their duties.  The claimants demanded for further information and details of the allegations contained in the queries, to which the Defendants refused to supply, but instead suspended them. All entreaties by the claimants to defendants to lift the suspension was rebuffed. The claimants were later invited to appear before the Staff Disciplinary and Appeals Committee (SDAC) on the allegation. Upon receiving the letter of invitation the claimants averred, they again demanded for the particulars of the allegation against them to enable them prepare for their defence, the Defendants however did not accede to this, it was later during the sitting of the committee that the 2nd Claimant was given the alleged “leaflet” for the first time.

The claimants averred that they were denied their due promotion during this period and their appointment was later terminated without any justification for misconduct and that their services are no longer required.  In line with the 1st Defendants’ condition of service, the Claimants appealed to the 2nd Defendant for a reversal of this decision but the said appeal was dismissed by the Defendants.

WHEREOF, the claimants are seeking the above reliefs against the defendants.

The Defendants on 16th March, 2018 filed a Memorandum of Appearance, Statement of Defence, Witness Statement on Oath, List of Witness as well as List of Documents to be relied upon at the trial.

The Defendants case is that the Claimants were not the Current Chairman and Secretary of the 1st Defendant’s Branch of ASUU and that the Current Chairman and Secretary of the 1st Defendant’s Branch of ASUU are Dr. A. Abdul Raheem and Mrs. A. M. Lewu respectively, who were elected on 26th February, 2017.  The defendants denied the allegation of witch-hunt, victimization and/or hostility to the claimants on their account of being active in the ASUU unionism.  The Defendants denied any vitriolic plan(s) to edge the claimants out of the University.  They stated that all the actions taken against the claimants were rightly and appropriately done and in accordance with the laid down rules as well as Revised Condition of Service for the Senior Staff.  The defendants denied the receipt of any letter on the purported anomalies in the appointment and promotion of Mrs. Taiwo Toyin Ambali and stated that the 1st Claimant used the name of the ASUU to unsuccessfully challenge the appointment and promotion of Mrs. Taiwo Toyin Ambali before the Court.

The Defendants further averred that the Claimants were given a copy of the “leaflet” in question when they appeared before the SDAC, and that while the 1st Claimant appeared before the SDAC on two occasions, the 2nd Claimant appeared on 3 different occasions on the allegation of misconduct that led to their dismissal.

The Defendants maintained that the claimants were afforded ample time and opportunity to make their representation on several occasions.  The defendants further averred that any staff facing any disciplinary issue or procedure will be denied promotion until the disciplinary issue is resolved in his favour.  The defendants averred that the termination of appointment of the claimants was in line with the law of the University as well as the Revised Condition of Service for the Senior Staff as they were found liable for an act of misconduct by the SDAC and the 2nd Defendant was not bound to reverse the termination as the appeals of the claimants were unmeritorious.

The Claimants’ filed a Reply to the Defendants statement of Defence, wherein they restated that they are the current Chairman and Secretary of ASUU, 1st Defendant branch, duly elected in an election.  The Claimants aver that the Queries, Warnings, Suspension, e.t.c came only during their Unionist period and they have never received any of such prior to that period. The Claimants stated that they could not have been found liable for any misconduct and their termination of appointment was not in line with the law because as at the time their appointment were terminated, the process leading to same has become spent and truncated.

The trial of this case commenced on 13th June, 2018 with the two Claimants testifying for themselves as CW1 and CW2. They both adopted their sworn statements on oath and tendered several documents which were admitted in evidence and marked as Exhibits KN1– KN78 and were duly cross examined.

The defendants opened their defence on the 13th day of June, 2018.  They called one Olu Mark the Chief Confidential Secretary, Directorate of Human Resources of the 1st Defendant. He gave evidence as DW1 and tendered certain exhibits which were marked Exhibits OM1 – OM7.  He was also cross examined.

The defence thereafter closed its case, and the case was adjourned for parties to file their final written addresses. Parties adopted their addresses on the 8th of October, 2018, and the case was thereafter adjourned for judgement.

In the defendants’ final written address dated 2nd July, 2018, I.O Atofarati of counsel for the Defendants raised a preliminary objection on the Reply to the Statement of Defence filed by the claimants in this suit on the ground that it violates the rules of pleadings as it relates to the filing of a Reply and urged the court to strike out same, he cited several authorities on this and highlighted the offending paragraphs, he thereafter formulated two (2) issues for determination to wit:

  1. Whether having regard to the facts, circumstances and evidence both oral and documentary led by the parties in this case; the claimants’ employments were not properly and legally terminated for acts of misconduct in accordance with laid down rules and procedures.

 

  1. Whether the claimants’ reliefs are not liable to be dismissed in the circumstances of this case.

On issue one, counsel submitted that matters involving misconduct of a staff of a university as in the instant case are matters within the domestic arena of the University and to that extent not ordinarily justiciable.  See Magit v. University of Agric, Makurdi (2005) 19 NWLR (PT.959) 211 AT 244. The counsel argued that the claimants were not maliciously victimized because they were active members of ASUU faction not recognized by the University authorities and the sanctions meted out to them were all justified.

On issue two (2), counsel submitted that the reliefs of the claimants are not only declaratory, malice is also being asserted through them. He went further to submit that evidence required to establish the entitlement of the claimant must be very cogent, convincing and direct – Newbreed Org. Ltd. Vs. Erhomosele (2006) 5 NWLR (pt.974) 499 at 539.  Counsel argued that a cumulative reading and examination of the reliefs been sought, will reveal that the 4 declaratory reliefs are the principal reliefs while others are ancillary as they are hinged or premised on the declaratory reliefs, therefore, if the declaratory reliefs fail, the other reliefs must necessarily and naturally fail, he cited Atunka v. Aboki (2016) LPELR 41199 (CA) pg. 11, Para A.  He argued further that when malice is asserted as done by the Claimants in this case, the facts or circumstance indicating such malice must not only be pleaded, it must as a matter of law be supported by cogent, reliable and admissible evidence. He cited in support of his submission the case of Newbreed Org. Ltd. V. Erhomosele (supra) at pg.539.

In conclusion, Counsel urged the court to dismiss the case in its entirety because: (1) the Claimants have not made out a case entitling them to the reliefs sought (2) the claimants employments were terminated with justification, and (3) it is best in the interest of justice to dismiss the case.

The Counsel for the claimants filed his final written address on the 21st September, 2018 and responded to the preliminary objection raised by the Defendants in their address by submitting that while it is true that the essence of a Reply is not to overreach the Defendant or to restate the facts as stated in the statement of Facts/Claim, the Reply filed by them did not in any way violate the rules guiding Reply to the statement of defence, and the objection of the Defendants is totally misconceived, unjustified and unsubstantiated, he identified the issues raised in the reply and submitted that they were in response to the new facts and new issues raised in the Statement of Defence and cited authorities to buttress the point that this is allowed, he urged the court to overrule the Defendants objection. Y.A Alajo of counsel for the Claimants thereafter adopted the following issues for determination:

  1. Considering the facts and circumstances of this case, whether the alleged acts of misconduct against the claimants were proved before the SDAC to suggest fair trial and to justify the termination of their employment.

 

  1. Whether the various disciplinary actions including termination of appointment taken against the claimants were tainted with malice, witch-hunting and victimization thus, amounting to unfair labour practice.

 

  1. Considering the circumstances of this case, whether the claimants are not entitled to all the reliefs sought as per their claims.

On issue one, Counsel to the claimants submitted that any person alleged of commission of any offence or misconduct is entitled to fair hearing/trial which includes: right to be informed of the particulars of the offence/misconduct, presumption of innocence until the offence/misconduct is proved in an open Court and in a public place, right to cross-examine his accuser or his/her witness, right not to be convicted for offence/misconduct not tried for, e.t.c.  He argued that the Defendants failed to observe the Claimants’ right to fair hearing/trial before terminating their appointment with the 1st defendant in that the detailed particulars of the alleged misconduct was not supplied to the Claimants in the queries marked Exhibits KN21 and KN61, several demands by the claimants via Exhibits KN22, KN28, KN29, KN62, KN68 and KN69 were unanswered.  Counsel argued further that after the appearance of the Claimants before the SDAC and notwithstanding the fact that no witness was called by the Defendants before the Committee to prove the allegations of circulating leaflets, making malicious statements and claims capable of inciting staff and students to protest and disrupt normal academic activities on campus, the SDAC went ahead in the case of the 2nd Claimant as apparent from Exhibit OM5 to recommend that the 2nd Claimant was found culpable of circulating ‘leaflets’ leading to the termination of his appointment.  Counsel stated that this awkward procedure is frowned at by the Courts as demonstrated in the similar case of UNIVERSITY OF ILORIN V. AKINROGUNDE [2006] FWLR (PT.302) 176 at 199 – 200 Para. C-D

On issue two, counsel to the Claimants submitted that considering the totality of events which culminated in the termination of the Claimants’ appointment, it can be safely concluded that the Claimants are victims of the Defendants’ victimization, witch-hunting, malice and bias.  He noted that the Defendants were not pretentious about the fact that the Claimants were queried and had their appointments terminated because they were parading themselves as the Executives of ASUU, Unilorin Branch.  This is confirmed by the pleadings and evidence of DW1 under cross examination.  He pointed out that the power to determine the authentic Executive of ASUU, Unilorin Branch (a Trade Union) does not lie with the Defendants (Employers), besides the Defendants cannot feign ignorance of the leadership of the Claimants as Executives of ASUU bearing in mind Exhibits KN8, KN40, KN41, KN42, KN43, KN44, KN48, KN49, KN50 and KN53. A careful analysis of the surrounding circumstances of this case, counsel submit, will show that the Claimants were only been victimized for the Union’s (ASUU) stance against some perceived maladministration in the 1st Defendant.  The law is trite that where disciplinary process is abused and used to victimize the employee, the Court is always enjoined to intervene and remedy the situation by declaring such process null and void. He cited the case of MARIAN vs. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD (2013) 35 N.L.L.R. (PT. 103) 40 at 135 – 136 Para H-D.

On issue three, the Claimants’ Counsel submitted that Claimants had demonstrably shown in their arguments under issues one and two as formulated above, how their rights to fair hearing/trial were breached in various ways. They have shown how the allegations against them were not established before they were called upon to establish their innocence contrary to the presumption of innocence enshrined in the Constitution and found culpable thereon by the SDAC.  The Claimants have also demonstrated how they were found culpable for allegations they were not tried for and how the functionaries of the Defendants have exhibited malice, victimization and bias against them. The Claimants have therefore proved their entitlement to the reliefs sought.

Counsel submitted further that when the conduct of a party which resulted to the injury suffered by another party is laced with malice, oppression, insolence, spite and contempt for the rule of law, the court would be right in granting exemplary or aggravated damages against the erring party. He cited the case of ODIBA vs AZEGE (1998) 7 SCNJ 119 at 135.

In conclusion, Counsel argued that since the Claimants’ employment with the Defendants is one that enjoys statutory flavour, the termination of same must be in strict compliance with the law to be valid.  See: IDERIMA VS. R.S.C.S.C. (2005) FWLR (PT. 285) 431 at 457; NNOLI v. UNTH MANAGEMENT BOARD & ANOR. (1994) 10 SCNJ 71 at 85.  In N.B.T.E. vs ANYANWU (2005) FWLR (PT.256) 1266 AT 1284 paras. A – F. He urged the court to grant all the claimants reliefs.

I have gone through all the processes filed in this suit, and I have listened to the witnesses called by both parties and watched their demeanour and studied the exhibits tendered. I have thereafter come up with two issues for determination in this suit, and they are as follows;

  1. Whether the termination of the employment of the claimants in this suit was proper and justifiable
  2. Whether the Claimants are entitled to the reliefs as contained in their claims before this court.

I will however want to treat the issue of the preliminary objection raised by the Defendants first, the defendants in their Final written address, raised a preliminary objection on the competence of the Reply to the Statement of Defence filed by the Claimants. The objection is based on the grounds that the Reply is incompetent having violated the rule of pleadings, the Claimants on the other hand argued that their Reply is competent in law and did not violate any known rule of pleadings. The rules guiding filing of a Reply is best captured by Nwodo J.C.A in the case;

PILLARS NIG. LTD V. MRS HANNAH DESBORDES & ORS 2009 LPELR 8204 CA, where he stated as follows;

“The rules governing filling a reply to a statement of Defence are as follows: (a)Generally, it is not necessary for a Plaintiff to file a Reply if his only intention in doing so is to deny any allegations that the Defendant may have made in the Statement of Defence. (b) A reply to join issues is not permissible if no reply is filed, all material facts alleged in the Statement of Defence are put in issue. (c) The purpose of filing a reply is to join issue on allegations made in the Statement of Defence, (d) where a new issue to attract a reply must in law be really new to the Statement of Claim in that it was introduced for the first time in the Statement of Defence by the Defendant.”

A thorough perusal of paragraphs 2, 3, 5, 6, 7, 8, 9, 10,11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 and 26 of the Claimants Reply to the Statement of Defence filed on the 2nd of May, 2018, which are been objected to by the Defendants, disclosed that the content of the majority of the aforementioned paragraphs are competent and complied with the rule guiding reply to the Statement of Defence, in that paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22 and 23 of the Reply are as a result of the issues raised in paragraphs 2, 4, 7, 8, 10, 11, 12, 13, 16, 17, 18, 20, 21, 25, and 33 of the Statement of Defence. The argument of the Defendants’ counsel that paragraphs 2, 3, 5, 6, 7, 8, 9 and 10 of the Reply are with regards to facts on the leadership of ASUU 1st Defendant branch, a subject matter of litigation before another court, which  should not therefore be countenanced by this court is begging the point, what is before me is the “alleged” unlawful termination of employment of the claimants, that there is a contention on the leadership of ASUU 1st Defendant branch is evident from the facts adduced by both parties in this case,  I must say I agree with learned counsel for the Defendants to the extent that the leadership of ASUU 1st Defendant’s branch is not before me, but in so far as the facts are relevant to the issues in contention , the court will not close its eyes to this existing facts, more so it was the Defendants that raised the issue of the status of the claimants as  executives of ASUU in the first place, I therefore find that having raised this issue in their Defence, it will be an admission if the Claimants did not respond to this in their Reply, the same also goes for the averments of the Defendants in paragraphs 8, 10, 11, 12 ,13, 16, 17, 18, 20, 21, 25 and 33 wherein there were specific allegations against the 1st claimant on absenteeism and the claimants for circulating “inciteful” leaflets that necessitated a Reply. The Defendants themselves after making an issue of the leadership of ASUU 1st Defendant’s branch have expanded the scope of the Claimants case and they are estopped from saying otherwise. I am fortified by the position of the law as espoused in the case OF PROF DUPE OLATUNBOSUN V. NISERSC 1988 3 NWLR Pt80 25 Oputa J.S.C stated and I quote;

“Pleading is a delicate art, which requires considerable tact; assiduity, effort, and circumspection. A good pleader will naturally limit himself to the issue raised by the Statement of Claim (here the vires of the Respondent to issue Ex 4 under the NISER decree). The Defendant/ Respondent should have been restrained and careful not to introduce collateral or bilateral issues which may either befog the central issue or else complicate the case unduly. What the Plaintifff called to question in paragraphs 8 and 13 of his Statement of Claim was the proper construction of Section 4 of Schedule 2 of the Niser Decree No. 70 of 1977 and whether if properly construed the new Institute had or lacked the power to terminate his appointment. This is a simple and straightforward issue. It was the Defendant itself that expanded the scope of the inquiry by gratuitously introducing the conduct or rather misconduct of the Plaintiff/ Appellant and by recklessly stepping into the delicate, difficult and sometimes dangerous arena of fair hearing or “due hearing” which it pleaded.”

Oputa J.S.C went on to espouse further in that Judgement as follows;

“After pleading thus the Defendants/Respondents has made the conduct or misconduct of the Plaintiff/Appellant the central issue. The Respondent is estopped from arguing otherwise.”

 

However, paragraphs 24 (i), 24 (ii), 24 (iii) and 26 of Claimant’s Reply to the Statement of Defence in my view raised new issues which will overreach the Defendants, the paragraphs are captured as follows;

  1. The Claimants, in reaction to the averments in paragraph 24 of the Statement of Defence state as follows:
  2. That the Claimants were not given a copy of the leaflet they allegedly circulated and queried upon until they appeared before the SDAC notwithstanding their repeated demands for a copy to be able to make proper representations.
  3. That on 27th April, 2017 when the Claimants appeared before the SDAC, the 1st Claimant observed that he could not get fair hearing from SDAC chaired by a member of the management of the 1stDefendant, Prof. A. Y. Abdulkareem, who accused him of alleged misconduct; but nothing was done about it throughout the sitting of the Committee.

iii.              That the SDAC particularly, its Chairman, Prof. A. Y. Abdulkareem and Chief O. N. Ebock actually exhibited some high level of bias and hostility against the Claimants during the sitting of the Committee by threatening and compelling the Claimants to answer questions in particular ways showing a predetermined and premeditated goal on the part of the Committee.

  1. The Claimants state in reaction to paragraphs 28 and 29 of the Statement of Defence that they could not have been found liable for any act of misconduct and their termination of appointment was not in line with the law because as at the time their appointments were terminated, the process leading to same has become spend and truncated for:
  2.        the 2ndDefendant (Council) has a statutory period of three (3) months from the date of suspension (7/02/2017) of the Claimants within which to decide whether to reinstate the Claimants, continue their suspension or take further disciplinary measures against them; and where the 2ndDefendant (Council) decided to take further disciplinary steps against the Claimants as in this circumstance, the 2nd Defendant (Council) must come to a final decision on the matter within three (3) months of its decision to take further disciplinary measure.
  3. the 2ndDefendant’s (Council) decision to take further disciplinary measure against the Claimants is inferable from the presumed reference of the case to the SDAC by the 2nd Defendant and the SDAC’s subsequent invitation via its letters of invitation dated 13th April, 2017 asking the Claimants to appear before it.

iii.      the final decision terminating the appointment of the Claimants was not taken by the 2nd Defendant (Council) within the statutory limited period.

  1.      the relevant period in relation to the termination of the Claimant’s appointments with the Defendants is between 7thFebruary, 2017 and 26thOctober, 2017; and the 2nd Defendant’s 153rd, 154th, 155th and 156th meetings relevant to this period were held on 14/03/2017, 24/05/2017, 28/08/2017 and 12/10/2017 respectively.

These paragraphs contain new allegations which ordinarily ought to have been pleaded in the Statement of Facts and as such, the Defendants would have had the opportunity of putting up a defence,  countenancing these paragraphs will deny the Defendants their rights to fair hearing, and as such I find that these paragraphs runs foul of the rules guiding Reply to Statement of Defence, paragraphs 24(i), 24(ii), 24(iii) and 26 of the Claimants Reply to the Statement of Defence filed on the 2nd of May, 2018 are hereby accordingly struck out, I so hold.

I will now go on to the issues for determination. On the 1st issue for determination, the argument of the Claimants in this case is that due process was not followed in the termination of their appointment with the first Defendant, the claimants listed the various event leading to the termination and accused the Defendants of acts of harassment, intimidation and unfair labour practice, and lack of fair hearing attributable to their union activities as Chairman and Secretary ASUU, 1st Defendant’s branch, and that they were unfairly treated in the allegation of distributing  leaflets capable of inciting unrest in the University, the “inciteful” publication was however not given to them in time to enable them prepare for their defence. The Defendants on the other hand contended that it is within their rights as an Employer to discipline/ institute disciplinary proceedings against any erring staff which they did in this case, and that they complied with all laid down procedure, regulations and statute guiding the employment relationship with the Claimants in this case. In treating the issue of whether the Defendants adhered to the statutes and regulations guiding the Employment of the Claimant, It is worthy of note that the employment relationship between the Claimants and the Defendants in this suit is a statutory employment, in IGWILLO V. CBN 2007 14 NWLR Pt 105 @393 a statutory employment was defined as follows:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant”.

The relevant statute and Regulation in this regard are; the University of Ilorin Act Cap U7 LFN and Revised Condition of Service for Senior staff (Exhibit KN 78), it is the position of the Law that the only way to terminate a statutory employment is to comply strictly with the procedure laid down in the statute guiding the employment relationship, See OLANIYAN V. UNIVERSITY OF LAGOS (No 2) 1985 2NWLR Pt 9 599

SHITTA BEY V.FEDERAL PUBLIC SERVICE COMMISSION 1988 1 SC 41 @56

While it is true that the power to discipline its staff is within the domestic purview of a university as rightly submitted by Defendants’ counsel and held in

Bamgboye V. University of Ilorin 1999 10(NWLR) Pt 622, 290@ pg 345 paras F.

The Supreme Court has held as follows in;

UNIVERSUTY OF ILORIN V RASHEEDAT ADESINA 2014 LPELR 23019(SC)

“The courts have no jurisdiction to interfere in the in the internal or domestic matters of a University.  Such matters are within the exclusive province of the Senate of the University and the visitor. But where it becomes clear that in resolving domestic disputes the University is found to have breached the civil rights and obligations of the respondents thereby raising issues of public import, the courts would have jurisdiction”.

It is settled law therefore, that the court will not ordinarily delve into this arena of the domestic affairs of a university, unless the legal rights of an aggrieved party has been breached. It is also the position of the law that where the procedure laid down by the statute regulating the employment is breached any decision affecting the right of an employee is to be declared null and void, see the case of;

Jide Osisanya V. Afribank Nig PLC 2007 1-2 SC 317per Oguntade JSC;

“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 there under, 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 disciplining 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 or tenure of office of that person may be declared null and void in an appropriate proceedings.”

In this case the relevant provision of the University of Ilorin Law cap U7 LFN is Section 16 and it provides as follows;

S.16.Removal of and discipline of academic, administrative and professional staff:

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

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

(b)     afford him an opportunity of making representations in person on the matter to the Council, and

(c)      if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements:

(i)      for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; and

(ii)     for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

Also to be considered is the University Of Ilorin Revised Conditions Of Service for Senior Staff, 2014, marked Exhibit KN 78 in this case, the relevant is Chapter 8 of Exhibit KN 78 and it provides as follows;

8.4.0 Disciplinary Procedure:

8.4.1 Disciplinary proceedings shall be initiated in accordance to the provision of the University of Ilorin Act CAP U7 Laws of the Federation of Nigeria 2010.

8.4.2 the procedure shall be as follows:

(a)  Query:

  1.             A member of staff who commits an act of misconduct shall be given a written query, a copy of which shall be sent to the Registrar. If his explanation is considered by the Head of his Department as reasonable, no further action shall be taken against him and the Registrar shall be so informed.
  2.             A member of staff who commits an act of misconduct or who is inefficient in the performance of his duties, may be warned verbally by the Head of his Department/Unit.

(b)  Warning:

  1.             If a member of staff is queried and his response therefore is found unacceptable. He shall be given a written warning. A copy and his response thereto, shall be forwarded to the Registrar through the Head of Department/Unit.
  2.             A written warning shall normally be regarded as final, and any further offence shall be liable to a more severe disciplinary action, and reason for the disciplinary action shall be communicated to the staff.

8.7.0 REMOVAL AND DISCIPLINE OF ACADEMIC, ADMINISTRATIVE AND PROFESSIONAL STAFF:

   8.7.1 if it appears to the Council that there are reasons for believing that any person employed as a member of staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the grounds of misconduct or inability to perform the functions of his office or employment, the Council shall:

  1. Give notice of those reasons to the person in question;
  2. Afford him an opportunity of making representations in person on the matter to the Council, and
  3. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements:
  4.             For an Adhoc Joint Committee of the Council and the Senate to investigate the matter and to report on it to the Council and
  5.             For the person in question to be afforded an opportunity of appearing before and being heard by the Investigation Committee, if the criminal, after considering the report of the investigation committee, is satisfied that the person should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directives of the Council.

The claimants in this case were issued with queries Exhibits KN21 and KN61 and the allegations against the two claimants were identically stated as follows:

  1. “That you… in consort with Dr Solomon Oyelekan of………on the 30th of January 2017 or thereabout, circulated and caused to be circulated, a leaflet duly signed by both of you containing words and allegations that are considered to be bluntly disrespectful and in subordinating to the office of the Vice Chancellor, which in effect has challenged the integrity and fairness of the University’s Administration
  2.       that in the said circulated leaflet you made some malicious statements and claims capable of inciting staff and students to protest, agitation and violence targeted at disrupting normal academic activities on campus.

iii.      that the said leaflet was circulated without due compliance with the laid down procedure as contained in Section 12.1.1.(b)of the University conditions of Service.

  1.      that your actions in (i-iii) above are calculated to undermine the authority of the University, its peace and order”.

This will lead me to revisit Exhibit KN78, particularly section 12.1.0. which provides thus;

12.1.0. PUBLICATIONS

12.1.1.        a member is not prohibited from publishing the results of his research or from expressing an opinion on matters of public interest, except that:

(a)          where work is undertaken concerning the activities of Governments or public bodies in Nigeria the provisions of the legislation relating to official secrets shall be applicable;

(b)          Matters of a confidential nature, concerning the University, shall not be published or disclosed to outside parties by any member of staff of the University, without the approval of the Vice-Chancellor in writing.

It was disclosed that sequel to this query the two claimants wrote several letters to the Defendant demanding for the mentioned “leaflet” in order to respond to the query but were not given, the said letters were admitted in this case and were marked Exhibits KN22, KN24. KN62 and KN64, sequel to this, the Defendants thereafter invited the Claimants to the Staff Disciplinary and Appeals Committee (SDAC) in respect of the said allegations by issuing Exhibits KN25, KN26 and KN27 to the 1st Claimant and Exhibits KN65. KN66 and K 67 to the 2nd claimant, the Claimants further responded by demanding for the said publications and particulars of the allegations in their letters marked as Exhibits KN28, KN29 an KN31 written by the 1st Claimant and Exhibits KN 68 , KN69 and KN71 written by the 2nd Claimant.

The Claimants were eventually offered the alleged leaflet at  one of the sittings of the SDAC, it is on record that the SDAC sat thrice, Exhibits OM3, OM4 and OM5, are the minutes of those meetings, wherein the response of the claimants to their been given the leaflets are captured see Exhibit OM4 and OM5, in summary the claimants  responded that the publication in question was an ASUU publication, and they have not been invited on behalf of ASUU but in their individual capacity, hence will not be able to respond to the allegation, the Committee went on to consider the case and thereafter recommended the termination of the appointment of the Claimants vide Exhibits OM5.

I have taken the pain to restate the case made out before me in this case, as contained in the record of the court in other to properly evaluate the issues in this case, it is settled law that the twin pillars of fair hearing and natural justice as enshrined in Section 36 of the CFRN 1999 are audi alteram patem and nemo judex in causa sua, the principle have been long settled in a long line of cases.  See Anidiobi v. Anidiobi [2007] 2 NWLR (Pt.1017) Pg.1; Orugbo v. Una  [2002] LPELR-2778 (SC).

The position of the law where these two basic principles are flouted is that whatever act(s) was premised on this infraction will be declared unconstitutional null and void. In Imonikhe v. Unity Bank Plc. [2011] LPELR-1503 (SC), the court per Rhodes-Vivour J.S.C explained the doctrine of Audi Alteram Partem thus:

“Audi Alteram Partem is a maxim denoting basic fairness. It is a canon of natural justice that has its root in the Old Testament. The Good Lord heard Adam before he passed sentence. It simply means hear the other side. See F.C.S.C v. Laoye [1989] 2 NWLR Pt.106 p,652; Akande v. state [1988] 3 NWLR Pt. 85 p.851. Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirement of fair hearing or natural justice.”

Section 16(1) (a) of the University of Ilorin Act provided that whenever any administrative and academic and professional staff is to:

“………be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall:-

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

………………………………………………………………”

The above provision clearly state that the notice to the offending staff must contain the reasons for the allegation.  Also section 8.4.2 of the Revised conditions of service also mandatorily provided for the issuance of a written query to the offending party, can Exhibit KN21 and KN61 issued to the Claimants satisfy the description of a query as provided for in this provisions?, I find that the answer to this question is in the negative, as having levelled an allegation of circulating inciteful materials against the claimants, the offensive material ought to have been attached, especially in the face of the demand for the details and particulars of the offences by the claimants. The failure of the Defendants to apprise the Claimants with the particulars of the allegation against them, especially upon a demand by them to be furnished with the “inciteful leaflet”, as a consequence of which they were not well informed of the allegations against them is contrary to Section 36 of the CFRN 1999. The Defendants been the body in charge of the discipline of staff has a duty to furnish them with the  particulars of their misconduct, and they were within their rights to have demanded for it.  The position of the law is stated in OKORIE GRACE OBIAGELI V. F.C.E ZARIA & ORS 2014 LPELR 24010, CA, where it was held as follows;

 “It is now trite that it is not every failure to follow laid down procedure or rules that will automatically affect the decision of any court or tribunal or body exercising judicial or quasi judicial function, in this case the Respondents. Therefore any mere irregularity that does not affect a party’s fundamental right to be heard or that has not resulted to substantial injustice against a party will not be disturbed, not even on appeal. However, where the right of a party before any court or body empowered to exercise judicial or quasi judicial function is fundamentally affected by the failure to follow the stipulated procedure or rules and or that failure has occasioned miscarriage of justice against a party this court will surely set aside the proceeding and the decision arrived at”.

In addition to the above the claimants have alleged that they were unduly harassed and intimidated by the Defendants because of their union activities in ASUU, they tendered several exhibits in this regard and publications to the effect that they were at the material time officers of ASUU.

The Defendants on the other hand denied any knowledge of this fact, the protracted battle between the Claimant and the Defendants on this issue is well documented by the pleadings, oral evidence adduced in this case and the exhibits tendered. I must however be quick to add that the position/status of the Claimants in ASUU is not before me, the termination of the appointment of the claimants is what this court is been called upon to adjudicate on.

On the procedure adopted by the SDAC, it is a fact that the SDAC is a quasi-judicial body and an investigative panel, the normal procedure in a disciplinary proceedings is for

1.     An accused to be served with the evidence against him before he appears in order for him to prepare his defence,

2.     He must be confronted with the witnesses in proof of the allegation.

3.     He must be given an opportunity to cross examine the witnesses.

4.     He must also be given the opportunity to defend himself.

 It is not expected that the claimants will indict themselves before the Committee, but it is for the committee to lay the evidence of the Claimants misconduct on the table, by calling witnesses and confronting them with documentary evidence, the failure of the Committee to do this, and merely handing over the said leaflet when the claimants appeared before them and calling on them to defend themselves is contrary to the tenets of natural justice and fairness as enshrined in Section 36 of the CFRN, an accuser retains the duty to ensure that particulars of the allegation was furnished on the accused, See OKORIE GRACE OBIAGELI V. F.C.E ZARIA supra, and

PROF DUPE OLATUNBOSUN V. NISER SC 1988 3 NWLR Pt 80 25, where it was rightly pronounced;

“one of the essential elements of fair hearing is that the body investigating the charge ( in the case of misconduct) must not receive evidence or representation behind the back of the person being investigated. This was our decision in Garba V. University of Maiduguri 1986 1 NWLR 550 @ Pg 618. In that case the court also added that the court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might, the risk of it is enough”

The impression created by this procedure and the failure to furnish the Claimants with the particulars of the allegation as requested creates the impression of bias. It is also on record that the panel also refused to collect the written representations of the claimants, this is captured in Exhibit OM 4 tendered by the Defendants, particularly pages 4, 5,11 and 13 of the exhibit, the allegations levelled against the claimants stated that they contravened Section 12.1.1. (b) of Exhibit KN78 , the section provides as follows;

Matters of a confidential nature, concerning the University, shall not be published or disclosed to outside parties by any member of staff of the University, without the approval of the Vice-Chancellor in writing.

The above allegations are of a serious nature, that must have been derived from a source, thus necessitates the claimants been afforded an opportunity to defend themselves. In SHELL PETROLEUM DEVELOPMENT CO. LTD V. CHIEF VICTOR SUNDAY OLANREWAJU 2008 12 S.C (III) 27 Tabai JSC held:

“It follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other.  The court will not inquire whether the evidence of representations did work to his prejudice.  Sufficient that they might do so.  The court will not go into the likelihood of prejudice.  The risk of it is enough”

The content of the pages 4, 5,11 and 13 of Exhibit OM 4 cited above will throw more light on this, and are hereby reproduced for ease of reference as follows;

Pages 4-5;

“……………………………………………………………………………………… In his reaction, Dr. Oyelekan stated that he had a letter he wanted to submit to committee stressing that since the offences  he was alledged to have committed were said to be jointly Dr Kayode Afolayan, he would have preferred that Dr Afolayan be present at the interaction. He informed the Committee that when it was alledged that he jointly signed a leaflet with Dr, Afolayan, he wrote on several occasions to see the leaflet but he did not receive any reply to his requests. Therefore, he felt the offences he was said to have committed had not een proved. He informed the Committee that he came with a letter that he wanted to submit to the Committee and he requested that the said letter should be all his response to the alllegations levelled against him. Dr. Oyelekan was asked to read the letter and he read it to the hearing of the Committtee.

The Committee asked Dr. Oyelekan the following questions:

……………………………………………………………………………………”

On CW1’s testimony see

Pg 11;                                                          

“……………………………………………………………………………………….

The Chairman introduced members of the Committee to him and asked him to introduce himself to the Committee. He introduced himself as Dr, K.N Afolayan, a Lecturer 1 in the Department of English.

He was then asked to respond to the allegations levelled against him……………….”

The Committee later went on to ask him questions on the allegation.

At Pg 13 of Exhibit OM4, it was further recorded as follows;

“……………………………………………………………………………………. He told the Committee that he had a letter he wanted to submit to the Committee but he was asked to follow the University’s laid down channel of communication. Dr Afolayan insisted that he could not take away the leaflet given to him by the Committee because it was Union property. He stated that he was invited to the meeting as an individual therefore, he could not comment on a union property.”

I have copied the content of Exhibit OM 4 to show the procedure before the SDAC, the Committee merely called upon the claimants to proof their innocence of the allegation of publishing and circulating inciting materials, without adducing any shred of evidence by the accuser, this gave rise to a perception of bias and a clear infringement of the principles of fair hearing and natural justice as clearly laid down in a plethora of authorities on this point, see OKORIE GRACE OBIAGELI V. F.C.E ZARIA supra and PROF. DUPE OLATUNBOSUN V. NISER supra, where it was held per OPUTA JSC as follows;

 “The Appellants right to a fair hearing before dismissal for misconduct is founded mainly and solely on the rules of natural justice or as Lord Campbell would like to call them – “the principles of eternal justice”- see Ex parte Ramshay 1852 18 W.B. 173at p.190.The right to be heard is such an important, radical and protective right that the court strain every nerve to uphold it and even to imply it, where a statutory form of protection would be more effective if it did not carry with it the right to be heard”

 In DR. TAIWO OLORUNTOBA-OJU& 4 ORSV. PROF, SHUAIB O.ABDUL- RAHEEM& 3 0RS 2009 LPELR 2596 SC @ Pg 63

Adekeye JSC held as follows;

“By virtue of section 15 (1) of the University act what compliance with the rules of natural justice in terminating the appointment of a university employee entails are:-

(1) That the complaints 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. In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to proof to the courts satisfaction.

(a)That the allegation was disclosed to the employee;

(b)That he was given fair hearing;

(c) That the council believed that the appellants committed the offences after hearing witnesses.”

In NDUKAUBA V. KOLOMO & ANOR 2005 ALLFWLR PT 248 1602@1614 the court held;

“It is not in doubt that a court faced with an allegation of reach of fair hearing does not have to concern itself with the correctness or otherwise of the decision reached in breach of the principle of fair hearing.”

It is based on the above premise and the facts and evidence adduced in this case that I find that the procedure adopted by the SDAC in terminating the appointment of the claimants was flawed, the Defendants did not follow the principles of fair hearing in the termination of the appointment of the Claimants as conveyed in the letters of Termination of Appointment dated 19th September, 2017 and consequently the termination is hereby declared unconstitutional, ultra vires, null, void and of no effect whatsoever, I so hold.

On the other reliefs been sought by the claimants in this case, relief II is:

A DECLARATION that the purported letter of warning dated 20th August, 2015, Internal Memo dated 17th May, 2016, and the Letter of Query dated 11th July, 2016 were maliciously and oppressively issued without justification against the 1st Claimant by the Defendants, hence, null, void, of no effect whatsoever and amount to unfair labour practice, which ought to be retracted by the Defendants.

It is the case of the claimants that the letter of warning dated 29th August, 2015, tendered as Exhibit KN5 in this case, issued to him in his capacity as an official of ASUU of the 1st Defendant’s branch, and with regards to a publication by ASUU, is null and void, I find that this leg of the relief is inconsequential, as it  not based on any form of disciplinary procedure in the 1st Claimant’s conditions of service, most especially since the content of the letter relate to a Union newsletter, it is therefore presumed that the letter was not written to the 1st claimant in his personal capacity, but as an official of ASUU, to which the 1st claimant was entitled to have responded and he did in Exhibit KN6. On the query dated 11th July, 2016, tendered as Exhibit KN10 in this case, I find no basis to interfere with the issuance of the query, as this is a matter within the domestic affairs of the 1st Defendant, which the court cannot dabble into at that stage, as stated earlier in this judgement, it is only when the civil rights of an employee is infringed during a disciplinary procedure, that the court can exercise jurisdiction.  See UNILORIN V RASHEEDAT ADESINA supra.

On claims III, IV and V restated as follows;

 A DECLARATION that the purported letters of Query dated 6th February, 2017, the Letters of Suspension dated 7th February, 2017 and consequent letters of Termination of Appointment dated 19th September, 2017 were maliciously and oppressively issued without justification against the Claimants by the Defendant, hence, null, void, of no effect whatsoever and amount to unfair labour practice and abuse of office, which ought to be retracted by the Defendants.

A DECLARATION that the refusal of the Defendants to accept the applications/publications of the Claimants for consideration for the 2017 Promotion Exercise amounts to unlawful denial of earned promotion thus, constitutes unfair labour practice against the Claimants.

AN ORDER compelling the Defendants to forthwith retract the queries, suspension and termination of appointment maliciously and oppressively issued and meted out against the Claimants.

It is settled law that where it is found that there is a breach of fair hearing in the proceedings of any tribunal/investigation panel any act founded thereon is a nullity, see CHIEF ISAAC EGBUCHU V. CONTINENTAL MERCHANT BANK PLC& ORS 2016 LPELR 40053 SC it follows therefore that reliefs iii, iv and v been acts culminating and premised on the breach of the claimants’ constitutional right to fair hearing are also null and void, I so hold.

Reliefs vi, vii and viii relates to monetary claims in proof of which the Claimants tendered their letters of appointment showing they were last promoted to CONUASS 04 Step 01, see Exhibits KN 4 and KN 59, it is on record that paragraph 52 of the Claimants’ Statements of Facts clearly averred that the claimants’ were on half salaries during the period of their suspension from February 2017 till September 2017, when their appointments were terminated, this assertion was not denied by the Defendants in this case, and they are deemed in law to have admitted same, it is trite law that a party claiming special damages as a duty to place the particulars of the special damages before the court.  The Claimants in their Reliefs VI and VII  claim for:

AN ORDER directing the Defendants to reinstate the Claimants forthwith and to pay them in full all their accrued income/salary arrears from the date of the purported suspension till the date of their reinstatement and thenceforth without loss of promotion countenanced every three years interval starting from 1st October, 2017 when they were due for another promotion after their last promotion.

AN ORDER directing the Defendants to pay the Claimants each the total sum of eight hundred and five thousand, four hundred and thirty two naira, thirty two kobo (N805,432.32) being their unpaid half salaries from February 2017 to September 2017.

Paragraphs 45& 33 of the Written Statement on Oath of CW1 & CW2 states as follows;

I know that my gross monthly salary as Lecturer 1 on CONUASS 04 STEP 03 is two hundred and one thousand three hundred and fifty eight naira eight kobo (N201,358.08) and upon my suspension on 7th February, 2017 I have only been paid half of my salaries from February, 2017 leaving the total sum of eight hundred and five thousand, four hundred and thirty two naira, thirty two kobo (N805,432.32K) as my unpaid half salaries for the same period.

This assertion was not denied by the Defendants in this case, and they are deemed in law to have admitted same, Exhibit KN 23 and KN63 are the letters of suspension written to the 1st and 2nd Claimants respectively by the Defendants and it also attested to the fact that they were on half salary for the period in question until their dismissal in September 2017. It is trite law that a party claiming special damages as a duty to place the particulars of the special damages before the court. See Onoghen JSC in Ex CAPTAIN CHARLES C. EKEAGWU V. THE NIGERIAN ARMY & ANOR 2010 16 NWLR 49 where he held as follows:

“I am however unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salaries/ emoluments including fringe benefits up to the point/ time of reinstatement and thereafter as and when due and payable”

Also in CBN &ANOR V.IGWILLO supra, Akintan JSC stated on the same issue as follows;

“Where an employee’ service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition, damages representing his salaries during the period of the purported dismissal”

I find that the claimants’ in this case have placed enough particulars to justify this legs VI and VII of their claim, I so hold.

Relief VIII is a claim for;

AN ORDER directing the Defendants to pay to the Claimants each the total sum of two hundred and ninety one thousand, three hundred and fifty eight naira, eight kobo (N291,358.08) being their gross monthly salaries as Senior Lecturers on CONUASS 05 STEP 01 from October 2017 until their reinstatement.

Apart from the fact that this claim has been partly taking care of under the relief vi above, the court having granted an order that there should be no loss of seniority and all theirs entitlements and arrears from the date of their wrongful suspension to the date of judgement thenceforth should be paid. The nature of this claim falls under the realm of special damages of which no evidence was placed before this court by the claimants, I find therefore that this leg of the claim is unproven. I so hold.

The claims as stated in reliefs IX, X and XI are as follows;

A CONSEQUENTIAL ORDER compelling the Defendants to specially process and automatically promote the Claimants in arrears to any and every successive positions attainable by them by effluxion of time during the pendency of this suit, so that there will be no loss of rank, seniority, income or perquisites of office, and to resolve any doubt in this regard in favour of the Claimants.

A Sum of N20 million as aggravated and/or exemplary damages for the malicious and oppressive manner the Defendants have used their offices to victimize, witch-hunt and oppress the Claimants.

AN INTEREST of 25% per annum on the total judgment sum as may be awarded by this Court from the date of judgment until same is finally liquidated.

The above claim viii is for a consequential order. Consequential orders has been defined in several authorities to be an order which flows from the claim of a successful party; in other words, it gives effect to the relief granted to a party.  Having in mind that claim vi has been granted, this relief as framed is speculative and superfluous.  It is trite law that the court can only make an order on pleaded and proved facts.  Apart from the fact that this issue has been taken care of in claim vi above, it is speculative and superfluous, as the court can only make an order on pleaded and proved facts.  See PLATEAU STATE OF NIGERIA & ANOR V. ATTORNEY GENERAL OF THE FEDERATION & ANOR 2006 LPELR 2921 SC where it was held as follows;

“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is speculative if it is based on speculation if it is not supported by facts or very low on facts but very high in guesses…………………………………….”

Premised on the above, I find that relief 8 of the claim fails. I so hold.

On Aggravated and Exemplary damages contained in relief ix, one of the instances where exemplary damages is usually awarded are where it involves an oppressive arbitrary or unconstitutional action by servants of Government, see ALLIED BANK NIG. LTD V. AKUBBUEZE 1997 6N WLR 509, It is not in doubt in this case that the claimants have been unfairly treated, by the evidence adduced in this case, this is evident in the manner they were shut out from defending themselves on queries and warnings issued to them, this also resulted in the loss of their promotion as and when due, and led to their eventual dismissal which has been declared unconstitutional null and void earlier in this Judgment. Mohammed JSC described instances where Exemplary Danages can be awarded in ANTHONY ODIBA V. TULE AZOGE 1998 9 NWLR PT 566 @ 370 as follows:

“Exemplary damages could be awarded against oppressive, arbitrary and unconstitutional action by servants of Government.”

Also Section 19 (d) of the National Industrial Court Act 2006 empowers the court in appropriate circumstances to award compensation or damages in any circumstances contemplated by the Act. I find that the claimants in this case suffered an injury from their unlawful dismissal by the Defendants. It is in respect of this that I hereby award the sum of N500,000.00k as exemplary damages to each of the claimants against the Defendants in this case.

In all the claimants succeed in part and I hereby declare and order as follows –

  1. The termination of the Claimants appointment vide later dated 19th September, 2017 is unconstitutional, ultra vires, null, void and of no effect whatsoever.

 

  1. The Query dated 6th February, 2017, the Letters of Suspension dated 7th February, 2017 letters of Termination of Appointment dated 19th September, 2017 are unlawful. Null and void, null, void, of no effect whatsoever.

 

  1. The refusal of the Defendants to accept the applications/publications of the Claimants for consideration for the 2017 Promotion Exercise amounts to unlawful denial of earned promotion.
  2. The Defendants are hereby ordered to reinstate the Claimants forthwith and to pay them in full all their accrued income/salary arrears from the date of the purported suspension till the date of their reinstatement and thenceforth without loss of promotion upon fulfilling all laid down requirements.

 

  1. The Defendants shall pay the Claimants the total sum of eight hundred and five thousand, four hundred and thirty two naira, thirty two kobo (N805,432.32) each being their unpaid half salaries from February 2017 to September 2017.

Also awarded are

  1. A Sum of N500,000.00K as aggravated and/or exemplary damages against the Defendants payable to each of the claimant.

 

  1. AN INTEREST of 20% per annum on the total judgment sum from the date of this judgment until same is finally liquidated.

A cost of N100,000.00k is awarded against the Defendants

Judgment is accordingly entered.

 

HON. JUSTICE A.A. ADEWEMIMO

 

JUDGE

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