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National Industrial Court

Dr. (Mrs) Betty Oluwayemisi Ali-Momoh -VS- The Rector, Auchi

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  IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

 

DATED: 12TH FEBRUAURY 2019                                                SUIT NO:NICN/ABJ/449/2016                              

BETWEEN

Dr. (Mrs.) BETTY OLUWAYEMISI ALI-MOMOH                              CLAIMANT

AND

  1. THE RECTOR, AUCHI POLYTECHNIC, AUCHI
  2. THE REGISTRAR, AUCHI POLYTECHNIC, AUCHI
  3. AUCHI POLYTECHNIC, AUCHI            DEFENDANTS
  4. MINISTER OF EDUCATION AND THE VISITOR

TO AUCHI POLYTECHNIC, AUCHI

REPRESENTATION

  1. A. ALEGBE for the Claimant with V. O. EDEGBINI
  2. Y. MUSA for the 1st– 3rdDefendants

JUDGEMENT

 

  1.             The Claimant instituted this action via General Form of Complaint with the accompanying frontloaded documents filed on 4th October, 2018, jointly and severally against the Defendants for the following reliefs:

  1. i)A DECLARATION that the letter of dismissal dated the 15th December 2016 issued by the Defendants to the Claimant dismissing her from the employment of the 3rd Defendant not being authorized or a product of the Governing Council of the 3rd Defendant is nullity ab initio and it is therefore ineffectual to dismiss the Claimant from the service of the 3rd Defendant.

  1. ii)A DECLARATION that arising from the aforesaid the Claimant is still in the employment of the 3rd Defendant.

iii)  A DECLARATION that the Claimant cannot be dismissed from the employment of the 3rd Defendant on the basis of a finding by an Ad- Hoc committee set up by management without due compliance with the procedure for the discipline of a senior staff as enshrined in the Regulations Governing the Senior Staff of the Polytechnic made pursuant to the Federal Polytechnics Act.

  1. iv)A DECLARATION that the Ad-Hoc committee set up by the 3rd Defendant lacks the vires/power to try the Claimant for any alleged misconduct as contained in the Federal Polytechnic Manual and the Federal Polytechnic Act as well as recommend her dismissal from the employment of the 3rd Defendant.

  1. v)A DECLARATION the purported dismissal of the Claimant by the Defendants on the basis of the report of an Ad-Hoc ‘Fact-Finding’ Committee set up by the 1st to 3rd Defendants is unlawful, illegal and unconstitutional because the entire process violated her right to fair hearing.

  1. vi)A DECLARATION that the purported dismissal of Claimant’s appointment by the Defendants was done in breach of the Federal Polytechnic Act and the Federal polytechnic Staff Manual 1990.

vii) A DECLARATION that the 4th Defendant lacks the powers/vires to unilaterally order or direct the 1st – 3rd Defendants to dismiss the Claimant from its employment because such powers are exclusively reserved for the Governing Council of the 3rd Defendant by the Federal Polytechnics Act.

viii)AN ORDER compelling the Defendants to reinstate and/or restore the Claimant to her post at Auchi Polytechnic, Auchi with all her rights, entitlements and other prerequisites of her office.

  1. ix)AN ORDER compelling the Defendants to pay to the Claimant all her salaries and allowance from 1st of December, 2016 till the day of Judgment and henceforth.

Claimants’ case

  1.             The claimant averred that she was employed as Master II on probation at the Polytechnic Secondary School, Auchi, of which the said appointment was confirmed on the 4th day of January, 2007 effective March, 2005 and that after years of meritorious service she applied for conversion of appointment and attended an interview for conversion. And following her success at the interview, she was converted from the post of Accountant 1 to the post of Senior Instructor in the Department of Accountancy, School of Business Study and in 2011 she was promoted to principal instructor 1.

  1.             The claimant averred that the query dated 8th day of June, 2016 issued to her without authorization of the Governing Council of the 3rd Defendant by the 2nd Defendant is in breach of her right, as she was not afforded the opportunity to make a representation to the Council after appearing before an ad-hoc committee set up by the Defendants.

  1.             The claimant stated that her employment was terminated on the 1st of December, 2016 without concrete evidence but premised on the report of an AD-HOC ‘fact finding’ committee set up by the 1-3rd defendants. The claimant averred that the AD-HOC “fact finding” committee set up was unconstitutional, unlawful and illegal because the entire process violated the claimant’s right to fair hearing.

  1.             The claimant stated that her employment which was unlawfully terminated by the 3rd defendant on the directive of the 4th defendant is wrong as provided by the Federal Polytechnic Act that governs the claimant’s employment. Also, that the 4th defendant does not possess the power to unilaterally dismiss or order the 1-3rd defendants to dismiss the claimant from employment.

  1.             1ST – 3RD DEFENDANTS’ STATEMENT OF DEFENCE was filed on 18th January, 2017.

  1.             The 1st — 3rd Defendants denying paragraphs 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,29 of the statement of facts and that at trial the claimant shall be put to the strictest proof thereof.

  1.             The 1-3rd defendants averred that the claimant was offered a chance of fair hearing at the ad-hoc committee and that such opportunity was fully utilized by the claimant. Responding to paragraph 18 of the statements of facts the 1-3rd defendants states that activities of the ad-hoc committee were not in breach of the Federal polytechnic act as erroneously alleged by the claimant.

  1.             Responding to paragraph 19 of the statements of facts the 1-3rd defendants stated that the administrative query issued to the claimant on the 8th June, 2016 is different from the grounds of notice of removal of an academic staff.  In specific answer to paragraph 28 of the statement of facts, the chapter 8 of the federal polytechnic Act. Also that there is no illegality involved in issuing the claimant a query.

  1.             1st – 3rd Defendants stated that the Auchi Polytechnic News Bulletin of 15th October, 2016 has no relationship with the Claimant’s case which took place between April 2016, and June, 2016.

  1.             The Hon. Minister of Education also set up a Committee to investigate the allegations contained in the Publication as well as the Department of State Security (DSS) and the EFCC. These committee and bodies made their respective recommendation.

  1.             Further, the Defendants stated that its Governing Council is not involved in the day to day administration of the 3rd Defendant which is left to the Management team of the 3rd Defendant. The Defendants add that the Acting Rector duly appointed for the 3rd Defendant performs effectively the duties of the Rector, including responsibility for overseeing the affairs of the 3rd Defendant in accordance with the extant laws, rules and regulations applicable to the 3rd Defendant.

  1.             At or before the trial, the Defendants shall raise preliminary objection to the competence of the Claimant’s suit on the ground of breach of mandatory provisions of the Sheriffs and Civil Process Act, 2004.

  1.             WHEREFORE the Defendants urged this Honourable Court to dismiss the Claimant’s claim as completely unmeritorious.

 

  1.             At the trial the Claimant testified on her own behalf and the Defendants called one Mr. Cornelius Garuba who testified as DW1.

  1.             At the trial, the claimant testified on her own behalf as CW; while one Mr. Cornelius Garuba a                                         of the defendant, testified as DW. Thereafter, parties filed their respective written addresses. The defendant’s final written address is dated and filed on 14thMay 2018, while the claimant’s is dated and filed on 15th may 2018. The court suo moto raised the additional issue as to existence of any law, convention or protocol under which any person or organizations is entitled to act on behalf of the Governing Council. Defendant’s reply on points of law was filed on 8th March 2017.

  1.             1ST – 3RD DEFENDANTS’ FINAL WRITTEN ADDRESS dated and filed on the 14th May 2018

ISSUE

 

Whether in view of the peculiar facts and circumstances of the case, the claimants’ dismissal from the service of the 3rd defendant was not lawful?

  1.             Defendants argued the sole issue for determination under two sub-issues:

First sub-issue

WHETHER the claimant was not afforded fair hearing before her dismissal from the employment of the 3rd defendant?

 

  1.             In defence of the claimant’s case the sole witness of the 1-3rd defendants, Mr. Cornelius      Garuba maintained that as stated in paragraphs 6 and 14 of his written deposition that he is a witness to the fact that the claimant was afforded fair hearing before the ad hoc committee which was set up by the 3rd defendant and that the claimant fully utilized this opportunity.
  2.             The claimant rendered no reply disproving the fact that she was afforded fair hearing, therefore the claimants is taken to have conceded the allegations of facts contained therein.

SECTION 75 OF THE EVIDENCE ACT; OGBIRIR V N.A.O.C. LTD (2010) 14 NWLR (PT 1213) 207 AT 224 where the court of appeal held that “pleading and evidence that are not challenged or controverted by the party against whom they are pleaded or averred are deemed to have been admitted”

 

  1.             Furthermore, that the claimants’ letter of appointment and confirmation were never at one point approved by the governing council of the 3rd defendant neither does the claimant have any document to show that the governing council ever regularized her aforesaid appointment or confirmation and the claimant has been in the service of the 3rd defendant without any complaint at any time. SECTION 3(2) OF THE SECOND SCHEDULE OF THE FEDERAL POLYTECNIC ACT “… that no decision of the committee shall have effect unless confirmed by the council”

The legal counsel therefore submitted that the claimant cannot be allowed to enjoy the alleged breach of exercise of power on the one hand and turn around to complain about that the council was not involved in the process leading to her removal from office.

Second sub-issue

Whether the hon. Minister of education being the visitor to the 3rd defendant cannot exercise he power to discipline staff of the 3rd defendant, including the claimant in the absence of a duly constituted governing council?

 

  1.             The learned counsel humbly adopted the argument that the claimant cannot complain of exercise of power by the 4th defendant of a duly constituted governing council. The council argued that the 4th defendant is undeniably a visitor to the 3rd defendant but that the general powers of the 4th defendant is well captured in SECTION 4(2) OF THE FEDERAL POLYTECHNIC ACT.

 

  1.             Further, that the parties herein are ad idem on the fact that there was no duly constituted governing council for the 3rd defendant during the period in question therefore the 4th defendant acted lawfully by directing the 3rd defendant to dismiss the claimant from employment having satisfied himself from the report of the ad hoc committee that investigated the publication as well as the claimants reply to the query issued to her following the outcome of the committee.

  1.             The learned counsel submitted that the 4th defendant is well aided by the doctrine of necessity in directing the dismissal of the claimant from the service of the 3rd defendant. It is the over riding interest of the public that discipline be maintained at all times amongst the staff and students of the 3rd defendant. LAKANMI & ANOR V. A.G, WEST & ANOR (1970) NSCC 143.

 

  1.             Counsel urged the Court to find and hold that the claimant’s dismissal from the employment of the 3rd defendant on the directive of the 4th defendant is lawful and accordingly resolve the sole issue for determination in favour of the 1-3rd defendants and against the claimant.

 

  1.             CLAIMANTS’ FINAL WRITTEN ADDRESS dated and filed on the 15th May 2018

ISSUES

 

  1. Whether the claimant was accorded a fair hearing by the defendants having regards to paragraph 8.4 of the Federal Polytechnic staff manual, 1990 and Section 17 of the Federal Polytechnic Act Cap FS17 laws of the Federation 2004 in enforcing the recommendation of the investigative ad-hoc committee on scandalous publication against Auchi polytechnic Auchi, to dismiss her from employment as a lecturer in the department of accountancy.

  1. Whether the defendants complied with section 17 of the federal polytechnic act and paragraph 8.4 of chapter 8 of the Federal Polytechnic Staff manual, 1990 in dismissing the claimant from her employment. If the answers to the aboveissues are in the negative.

 

  1. Whether the claimant is not entitled to reinstatement to her position and her salaries and allowances as a lecturer.

ON ISSUES 1 AND 2

 

  1.             Whether the claimant was accorded affair hearing by the defendants having regards to paragraph 8.4 of the federal polytechnic staff manual 1990 and section 17 of the federal polytechnic act cap FS17 laws of the federation 2004 in enforcing the recommendation of the investigative ad-hoc committee on scandalous publication against Auchi polytechnic Auchi, to dismiss her from employment as a lecturer in the department of accountancy.

  1.             Whether the defendants complied with section 17 of the federal polytechnic act and paragraph 8.4 of chapter 8 of the federal polytechnic staff manual 1990 in dismissing the claimant from her employment. If the answers to the aboveissues are in the negative.

  1.             Counsel submitted that the onus is on the claimant to prove that the termination of her employment was unlawful, and that to discharge this onus she must prove that;
  2. a)That she is in the employ of the 3rd defendant
  3. b)Place before the court the terms and conditions of her employment
  4. c)Who can appoint and who can remove her
  5. d)In what circumstances the appointment can be determined.

OKOMU OIL PALM CO LTD V ISEREHIENRHIEN (2001) 6 NWLR (PT 710) 660.

 

  1.             Claimant’s Counsel submitted that following the provisions of Section 318of the 1999 constitution of the Federal Republic of Nigeria, the claimant is a person employed in the public service of the federation as a staff of an educational institution established and financed by the government and has her employment garbed with statutory flavour. OLANIYAN V UNIVERSITY OF LAGOS & ANOR (1985) NWLR (PT 9) PG 599. Furthermore, that in order to remove the claimant from her employment the defendant must strictly comply with section 17 of the federal polytechnic staff manual 1990 which both regulate her employment with the 3rd defendant.
  2.             It was submitted that the query issued to the claimant was issued without a governing council therefore it does not count as a notice neither does the letter of dismissal issued on the authority of the 4th defendant and not the governing council as stipulated in the act.

  1.             Counsel submitted that since the governing council was not in place let alone satisfying any of the preconditions for the exercise of power to remove the claimant. The governing council did not set up the AD HOC committee and was not the investigative panel before which the claimant appeared as a witness. The claimant never had the opportunity of appearing or making a representation to the council or the 4th defendant who authorized her dismissal. She was not given a notice to do so. The only query she received was issued by the 2nd defendant without any input or directive from the council and her reply to the query was to him and not the council.

  1.             Therefore, it was argued that before the claimant can be dismissed by the defendants, the defendants would have to comply with the provisions of Section 17 of the Federal Polytechnic Act and paragraph 8.4 of the federal polytechnic staff manual which provides that the council shall;
  2. a)Give notice of these reasons to the person in question
  3. b)Afford him an opportunity of making a representation in person to the council; and….

 

  1.             Counsel submitted that the investigative committee have indicted the claimant, the defendants were under legal duty to comply with section 17 of the federal polytechnic staff manual 1990 by ensuring that the governing council gave notice of the finding to and recommendation of the ad hoc committee to the claimant and afford her the opportunity of making a representation in person on the matter to the council. In ADENIYI V GORVENING COUNCIL OF YABA COLLEGE OF TECHNOLOGY(1993-1994) ALL NLR 1@25, KARIBI-WHITE, restated the principle of fair hearing in respect of employment with statutory flavors, he enunciated in AIYETAN V NIFOR(1987) 3 NWLR 48 thus;

“In that case I held the view, which I am still to be convinced to the contrary, that in the observance of the principal of natural justice and the essential requirement of Fair hearing, there is a distinction between the recommendations of an investigation panel which has no statutory powers, and the acting on the recommendation by a statutory body with requisite statutory powers. Whereas the recommendation of the investigation will not affect the civil right and obligations of the appellant, the acting upon such recommendation does. Hence the implementation of the recommendation must comply with the rules of natural justice. “

  1.             Furthermore, in ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993-1994) ALL NLR, per KARIBI-WHITE, JSC

“There is no doubt that the appellant who was not here by the respondent council before implementing the recommendation of its investigating panel, violated its right to be heard. Accordingly the decision retiring him from service is ultra vires and accordingly void”.

  1.             Counsel submitted that the power of the 4th defendant could lawfully be exercised under Section 7 of the Act in respect of any matter is to give directions to the council which the council is mandated under the Section to comply with, which the 4th defendant failed to do.

  1.             On the submission by the 1st-3rd defendants’ counsel that the claimant did not file a reply to their statements of defence and he is therefore deemed to have admitted the averment therein, counsel submitted that the learned counsel to the 1-3rd defendants missed the point as it is not the law that a claimant is under an obligation to file a reply except the defendant by his defense raises new issue. ORDER 30 RULE 2 (3) OF THE NATIONAL INDUSTRIAL COURT (CIVIL PROCEDURE) RULES, 2017.

 

  1.             Following from the above, counsel concluded that the defendants were under a legal duty to comply with Section 17 of the federal polytechnic act and the Federal Polytechnic staff manual 1990 by first presenting the report of the findings and recommendation of the committee to the council to determine whether or not to dismiss the claimant from her employment.

Issue 3

  1.             The law is now settled and engrained in our jurisprudence that when an employment that is protected by status is unlawfully terminated, the remedy is to declare such act null and void and reinstate the employee. IDERIMA V R.S.C.S.C (2005) 16 NWLR (PT 951) 378, BAUCHI JUDICIAL SERVICE COMMISSION (2017) PG 432 AT P.455 PARAS D.

 

  1.             Following the direction of the Court parties further addressed the court on the issue raised by the Court suo moto. The claimant relying on the unreported case of NICN/ABJ/16/2017: JOHN OSEMEN EHIKIOYA V. THE RECTOR, AUCHI POLYTECHNIC, AUCHI & ORS, delivered by Adeniyi J. made submissions viva voce while the defendants adopted their further address wherein they argued thus;-

  1.             1ST – 3RD DEFENDNATS’ SUPPLEMENTARY ADDRESS ORDERED BY THE COURT 4TH OCTOBER, 2018 filed on 29th October, 2018.

  1.             Whether any person or body can exercise disciplinary power against a staff of the 3rd Defendant in the absence of a duly constituted Governing Council for the 3rd Defendant by the President of the Federal Republic of Nigeria.

 

  1.             It is the contention of the 1st — 3rd Defendants that the Court of Appeal has laid this issue to rest that in the absence of a duly constituted Governing Council, the management of the 3rd Defendant can exercise disciplinary power to terminate the appointment of a staff of the 3rd Defendant who is found guilty of gross misconduct. OSAKUE V. F.C.E. (TECH) ASABA (2002) 7 N.W.L.R. (PT. 765) 222 AT 241 PARAS. C — F, per Akaahs, J.C.A. (as he then was).

  1.             He noted that although the Claimant also placed reliance on the judgment of this Honourable Court delivered by His Lordship per Adeniyi, J in NICN/ABJ/16/2017: JOHN OSEMEN EHIKIOYA V. THE RECTOR, AUCHI POLYTECHNIC, AUCHI & ORS., the Claimant cannot seriously urge the Court to follow the aforesaid decision of this court as it is disobedience of the decision of the Court of Appeal in OSAKUE’S CASE (SUPRA), now specifically brought to the attention of this Honourable Court.

  1.             Furthermore, that the decision of the Court of Appeal in OSAKUE V. F.C.E. (TECH) ASABA (SUPRA)was not brought to the attention of the court in the above decision of the court in NICN/ABJ/16/2017: JOHN OSEMEN EHIKIOYA V. THE RECTOR, AUCHI POLYTECHNIC, AUCHI & ORS.

 

  1.             Thereafter, the parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

 

  1.             I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission on the suit and in respect of the issues raised suo moto by this court having been fully considered are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.
  2.             I am inclined to adopt the issues for determination formulated by the defendants. This way all the arears raised by the defendant shall be resolved in answer to all the issues raised in this compliant by the claimant.
  3.             The defendants had at the onset of trial indicated that they would raise the question of the absence of leave for service outside jurisdiction and  this court had had cause to look into this issue in another suit:-  In FRANCIS OLUYEMI OLAMIJU ESQ V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NIC/LA/157/2011 the ruling of which was delivered on 5th March 2012, this Court held as follows –

(i)                 A look at the Sheriffs and Civil Process Act reveals that section 97 comes under Part VII of the Act. In that Part the use of the word “Court” is defined to mean a court to which Parts III, IV, V and VI applies. Only in Part III is the word “Court” defined to include “the High Court of the Federal Capital Territory Abuja or of the States” and “judge” is defined to mean “a judge of the High Court”. Part II of the Act, however, defines “Court” to include “a High Court and a magistrate’s Court”. What I can deduce from these definitions is that the courts contemplated for the application of the Sheriffs and Civil Process Act are specifically provided for. For instance, only in Part II is magistrate court contemplated. In other Parts, it is not s mentioned. The argument of the defendants’ counsel that the word “includes” used in the definitions must be read as not being exhaustive or even exclusive seems to, therefore, gloss over why a court like the magistrate court is mentioned in Part II and not in other Parts. The answer of counsel here that section 97 covers all courts of co-ordinate jurisdiction such as the National Industrial Court also does not answer the question whether the Sharia Courts of Appeal or Customary Courts of Appeal, all courts of co-ordinate status and power with the High Court, [are also covered]. In fact, it does not answer the question whether the Court of Appeal and the Supreme Court, when acting under their original jurisdiction, are bound by section 97 of the Sheriffs and Civil Process Act. My take on all of this is that not all courts are covered by section 97 of the Sheriffs and Civil Process Act; and I so find and hold. Since this is the case, I hold that this court is not covered in terms of the application of the said section 97.

(ii)               My view point is reinforced by section 36(1)(g) of the Trade Disputes Act Cap. T8 LFN 2004 which permits this court to do all such things or give such directives as are necessary or expedient for dealing especially with matters before it. This provision is reinforced by section 12(2) of the NIC Act 2006. This court was not set up to be bound by the sort of technicality that section 97 of the Sheriffs and Civil Process Act represents.

(iii)             Even aside from all of this, a look at section 97 of the Sheriffs and Civil Process Act will reveal that while its first part may apply to this court, its second part cannot; and statutes are to be construed holistically, not isolatedly. Section 97 provides as follows –

Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect…[emphasis is the Court’s].

(iv)             From this provision, one will notice that references to State and Capital Territory implies territorial limitation in terms of the jurisdiction that the State High Courts or High Court of the Capital Territory suffers from, which this court does not suffer from, in view of section 21 of the NIC Act 2006.

(v)               Secondly, in the underlined portion of section 97 quoted above, it can be discerned that aside from the endorsement required by section 97 itself, other endorsements may be required by State laws or laws applicable to the Capital Territory; again, the reference here conjures up the question of territorial law and limitations. In regards to this court, therefore, which state or Capital Territory Law can be said to apply to warrant the further application of section 97 in the manner depicted by the underlined part of the section quoted above?

(vi)             I do not think, on the whole, that this court is contemplated for purposes of section 97 of the Sheriffs and Civil Process Act, and even if it is, [whether] the section can apply when the totality of the Trade Disputes Act and the NIC Act 2006 is taken.

  1.             This I find is the positionof the law particularly when one considers the provision of section 21 NICA 2006 and Order 7 rule 15.

  1.             By the foregoing I find and hold that the defendants were duly served.

  1.             The issues for determination of this suit I find is;-

  1. Whether in view of the peculiar facts and circumstances of the case, the claimants’ dismissal from the service of the 3rd defendant was not lawful?

and in respect of the issue raised by the court suo moto

  1. Whether any person or body can exercise disciplinary power against a staff of the 3rd Defendant in the absence of a duly constituted Governing Council for the 3rd Defendant by the President of the Federal Republic of Nigeria.

  1.             In presenting her complaint the claimant testified as to her employment;- that she was employed as Master II on probation at the Polytechnic Secondary School, Auchi, of which the said appointment was confirmed on the 4th day of January, 2007 effective March, 2005 and that after years of meritorious service she applied for conversion of appointment and attended an interview for conversion. And following her success at the interview, she was converted from the post of Accountant 1 to the post of Senior Instructor in the Department of Accountancy, School of Business Study and in 2011 she was promoted to principal instructor 1. In furtherance of her testimony the claimant tendered exhibits C   – C   being her letter of appointment, confirmation, conversion and promotions inter alia.

  1.             The position of the law in respect of making a determination as to the nature of employment, bearing in mind that the law recognizing three basic categories; -The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SCheld that “….there are three categories of employment
  2. a)Purely Master and Servant relationship
  3. b)Servants who hold their office at the pleasure of the employer
  4. c)Employment with statutory flavour….”

  1.             And to further determine the existence of a statutory employment the courts have always held that recourse should be made concerning the manner of appointment which in this case, I find that is the letters of employment. See SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CA Jega JCA where it was held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE [2006] 6 NWLR (Pt. 920) 1 at p 19-20. And in determining whether the respondent’s appointment is statutorily flavoured or not ….”the courts have held that recourse should be had to the contends of the letter of appointment” FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B.

  1.             From the claimant letters of conversion to Senior Instructor in the Department of Accountancy, School of Business Study and subsequent promotion Exhibit C5 clearly portray that she is a statutory employee by virtue of her appointment as a Lecturer in the defendants. I find and hold. Furthermore, it has long been established from a plethora of authorities that lecturers in government or public universities /Polytechnics are public servants and statutory employees. See OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 549 AT 599.The Supreme Court went on to state that an employment is said to have 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. See also SHITTA-BEY V. FPSC (1981) 1 SC 41: EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290; UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD V. DAWA (2007)16 NWLR (PT.739) 424.

  1.             The defendant’s argument as to the claimant’s appointment and confirmation prior to 2011, I find are of no moment as these incidents are prior to her conversion to a lecturer and it is the conversion that renders her employment a statutory one, and the said argument is hereby discountenanced.

  1.             “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.” UDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR  (2010) LPELR-3824(CA)Per Odili, JCA (P. 17, paras A-B)See DR. TAIWO OLORUNTOBA-OJU & ORS. V. PROF. SHUAIB O. ABDUL-RAHEEM & ORS. (2009) 13 NWLR PT.1157 PG.83; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NW LR PT.622 PG.290. BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. V. ESEALUKALPELR-20159(CA)

 

  1.             In the case of UNIVERSITY OF ILORIN V. ABE (2003) FWLR (Pt. 164) 267 at 278, this Court held:”It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.”

  1.             The above was followed in the case of NEW NIGERIA NEWSPAPERS LTD V. ATOYEBI (2013) LPELR-21489 (CA)where we said this of employment with statutory flavour:

  1.             “In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”See also OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787, OLORUNTOBA OJU V. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per Mbaba, J.C.A. (pp. 16-18, PARAS. G-C)

  1.             The defendants have argued that the claimant having been invited to appear and havingappeared before the ad hoc committee and thereby was duly granted fair hearing. The claimant on the other hand hinge their claim to a lack of fair hearing to their contention that the provisions of paragraph 8.4 of the Federal Polytechnic staff manual, 1990 and Section 17 of the Federal Polytechnic Act Cap FS17 laws of the Federation 2004 where not adhered to in enforcing the recommendation of the investigative ad-hoc committee on scandalous publication against Auchi polytechnic Auchi, as the basisof dismissing her as a lecturer in the department of accountancy.

  1.             The Supreme Court in OLUFEAGBA V. ABDUL-RAHEEM [2009] 18 NWLR (PT. 1173) 384SC held that statutory provisions establishing a corporate body always empower the body to employ staff and discipline them; and that once the statutory provisions are clear as to how to deal with an erring servant, they must be adhered to strictly including a clear observation of the principles of fair hearing.

  1.             paragraph 8.4 of the Federal Polytechnic staff manual, 1990 and Section 17 of the Federal Polytechnic Act Cap FS17 laws of the Federation 2004 provide as follows

Section 17 of the Federal Polytechnic Act Cap FS17 laws of the Federation 2004

  1.             Section 17(1) of the Federal Polytechnics Act is hereby fully reproduced with some areas emphasized by me by underlining:

“17 (1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall

  1. a)give notice of those reasons to the person in question:
  2. b)afford him an opportunity of making representation in person on the matter to the Council; and
  3. 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)                  if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or

(ii)                for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and

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

  1.             While I agree with the defendants that in Labour Law preserves fair hearing has been streamlined to opportunity. The claimants grouse is that 1. the governing council did not set up the AD HOC committee and that 2.  the investigative panel before which the claimant appeared as a witness was not the ad hoc committee. 3. That the claimant never had the opportunity of appearing or making a representation to the council or 5.to the 4th defendant who authorized her dismissal. 6, that the claimant was never served with any notice to make a representation to the Councilor 4th defendant before any sanction was opposed upon her.  And 7, the only query she received was issued by the 2nd defendant without any impute or directive from the council andshe replied the 2nd defendant and not the council.

  1.             Arguing further that bySection 17 of the Federal Polytechnic Act and paragraph 8.4 of the federal polytechnic staff manual, the claimant is entitled to be a) Given notice of these reasons for the invitation as well as b) beafforded him an opportunity of making a representation in person to the council; before she can validly and legally be dismissed by the defendants, in other words the defendants are required to comply with the provisions of Section 17 of the Federal Polytechnic Act and paragraph 8.4 of the federal polytechnic staff manual. 

 

  1.             Maintaining that that as at the time of issuing the claimant a query up until and after the issuance of the letter of dismissal there was no Governing Council in place in the 3rd defendant.

  1.             The defendants however contend that although all the parties herein are ad idem on the fact that there was no duly constituted governing council for the 3rd defendant during the period in question  the defendants maintain that therefore the 4th defendant 4thbeing the undeniable a visitor to the 3rd defendant acted lawfully by directing the 3rd defendant to dismiss the claimant from employment having satisfied himself from the report of the ad hoc committee that investigated the publication as well as the claimants reply to the query issued to her following the outcome of the committee. Raising in their defence the doctrine of Necessity.

  1.             Firstly, the position of that law is that the fact that a party appeared before a court or a panel does not ipso facto mean that he was given a fair hearing in a matter in which his conduct is called to question. He may have been heard, but there can be no fair hearing if a party did not know what his employer had against him. If the purpose of the hearing is to determine his guilt or the propriety vel non of his conduct, it is not enough that he is heard; the hearing must relate to his defence of the complaint against him. Being the person to be affected by the outcome of the hearing, there is need to afford him the opportunity not just to be heard, but to be heard in his defence of whatever allegation is made against him. SeeU.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A.

 

  1.             Also in OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83, The Supreme Court held that “In the observance of the principle of Natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by a statutory body with the requisite statutory powers. Whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated, the acting upon such recommendation does. Hence, the implementation of the recommendation by a statutory body must comply strictly with the rules of natural justice….”

  1.             From the above authorities the claimant being called as a witness does not satisfy the requirement of fair hearing I find and in addition the law requires that the claimant be notified and permitted to make representation to the body with statutory powers to make orders effecting her civil rights and obligations which in this instant case I find is the Governing Council of the 3rd defendant. I find that in the circumstances the claimant was not afforded fair hearing.

Now to issue raised suo moto by the Court

  1.             The defendants had alsoasked the court to look atOSAKUE V. F.C.E. (TECH) ASABA (2002) 7 N.W.L.R. (PT. 765) 222 AT 241 PARAS. C — F in distinction to the recent unreported authority of NICN/ABJ/16/2017 JOHN OSEMEN EHIKIOYA V. THE RECTOR, AUCHI POLYTECHNIC, AUCHI & ORS. and such like authorities. The specific circumstances of OSAKUE V. F.C.E. (TECH) ASABA (SUPRA) are somewhat different that the instant case so much so that this court finds itself unable to apply it to this instant case particularly as in OSAKUE V. F.C.E. (TECH) ASABA (SUPRA) there was a specific rule notably rule; -Rule 16.02 of the respondant institution’s guidelines, which was invoked so that when the authority of the Council was required by the Guidelines or by the Decree the authority of the Minister responsible for Education could be substituted for the authority of the Council. This court has not been shown any similar or extant provision in either the Federal Polytechnic Act or thefederal polytechnic staff manual in parimateria or equitable to the said Rule 16.02 of Osakue’s case.  The defendants had 48 hors to the delivery of this judgement informed the court that Osakue’s case had been overturned on appeal at the Supreme .

  1.             This Court has had cause to consider similar arguments to that of the defendants, with regard to what is to be done in the absence of a Governing Council or a Governing board and held in the unreported case of SUIT NO. NICN/LA/590/2012 ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY delivered October 24, 2016  that “the proper thing for the defendant to do in a situation where the Board approval is required to take any action and no Board is in place, would be to wait until the Board is reconstituted. In that case ADESOJI SODEKE Vs. NATIONAL DRUG LAW ENFORCEDMENT AGENCY (SUPRA) This court held that “Rather than await the composition of the Board, the Chairman/Chief Executive in breach of Regulation 38 re- instated the claimant. The court went on to hold that  “ that The claimant was then erroneously recalled from interdiction and reinstated ……The defendant being a statutory body, it is imperative for it to comply fully with its Regulations on discipline” that court held that as the claimant’s appointment being one with statutory flavour, the failure of the defendant Agency to comply with Regulation 38 and 121 rendered his recall from interdiction and reinstatement null and void”. See also the unreported SUIT NO: NICN/CA/60/2015 SARAH A. AYUK Vs. UNIVERSITY OF CALABAR TEACHING HOSPITALdelivered 3rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITALdelivered 3rd March 2017’.

  1.             In a statutory employment the rules laid down for performing a function must be strictly complied with, complied with to the letter. I find. And that was not done in this case I hold.
  2.             The legal position is that “where there are statutory procedural requirements specified or stipulated for the removal of an employee these procedural conditions must be full filled otherwise the removal will be invalid”, see the case of THE COUNCIL OF FEDERAL POLYTECHNIC EDE & ORS Vs. JOHNSON OLOWOOKERE [2012] LPELR 7935 CA and OLATUNBOSUNVs. NISER COUNCIL [1988] 3 NWLR  (Pt. 80) 25

  1.             I find that the requisite legal procedural requirements were not complied with in dismissing the claimant. The law is that when such a finding is made the positions is that the act of the defendant is illegal and null and void  and operates as if it never occurred in the first place and that the claimant is to be reinstated without any loss of earnings or position.  Any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all.  See DR. TAIWO OLORUNTOBA-OJU & ORS. V. PROF. SHUAIB O. ABDUL-RAHEEM & ORS. (SUPRA); BAMGBOYE V. UNIVERSITY OF ILORIN (SUPRA). BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. V. ESEALUKA(SUPRA).

 

  1.             I resolve both of the defendants issues against the defendant. And find for the Claimant.

  1.             From the foregoing I find and hold that the claimants case succeeds in its entirety.

 

  1.             The judgement of this court is as follows; –

I     It is hereby declared that the letter of dismissal dated the 15th December 2016 issued by the Defendants to the Claimant dismissing her from the employment of the 3rd Defendant not being authorized or a product of the Governing Council of the 3rd Defendant is nullity ab initio and it is therefore ineffectual to dismiss the Claimant from the service of the 3rd Defendant.

  1. It is hereby declared that the Claimant is still in the employment of the 3rd Defendant.

iii.  It is hereby declared that the Claimant cannot be dismissed from the employment of e 3rd Defendant on the basis of a finding by an Ad- Hoc committee set up by management without due compliance with the procedure for the discipline of a senior staff as enshrined in the Regulations Governing the Senior Staff of the Polytechnic made pursuant to the Federal Polytechnics Act.

  1. It is hereby declared that the Ad-Hoc committee set up by the 3rd Defendant lack the vires/power to try the Claimant for any alleged misconduct as contained in the Federal Polytechnic Manual and the Federal Polytechnic Act as well as recommend her dismissal from the employment of the 3rd Defendant.

  1. It is hereby declared the purported dismissal of the Claimant by the Defendants on the basis of the report of an Ad-Hoc ‘Fact-Finding’ Committee set up by the 1st3rd Defendants is unlawful, illegal and unconstitutional because the entire process violated her right to fair hearing.

  1. It is hereby declared that the purported dismissal of Claimant’s appointment by the Defendants was done in breach of the Federal Polytechnic Act and the Federal polytechnic Staff Manual 1990.

vii. It is hereby declared that the 4th Defendant lacks the powers/vires to unilaterally order or direct the 1st – 3rd Defendants to dismiss the Claimant from its employment because such powers are exclusively reserved for the Governing Council of the 3rd Defendant by the Federal Polytechnics Act.

viii.By Order of this Court the Defendants are to reinstate and/or restore the Claimant to her post at Auchi Polytechnic, Auchi with all her rights, entitlements and other prerequisites of her office.

  1. By Order of this Court the Defendants are to pay to the Claimant all her salaries and allowance from 1st of December, 2016 till validly disengaged.

  1. Cost of this suit is put at N100,000.00 (Hundred Thousand Naira) only against the Defendants

 

  1.             This is the Court’s judgement and it is hereby entered.

………………………………………

HON JUSTICE E. N. AGBAKOBA

Judge.

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