Halima Adamu.-VS- Ibrahim Badamasi Babangida University

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MINNA JUDICIAL DIVISION

HOLDEN AT MINNJA

BEFORE HIS LORDSHIP,HONOURABLE JUSTICE K. D. DAMULAK

ON THE 7^TH DAY OF NOVEMBER 2019

SUIT NO. NICN/MN/02/2019

BETWEEN:

HALIMA ADAMU …………………………………………. CLAIMANT

AND

1.IBRAHIM BADAMASI BABANGIDA UNIVERSITY

2.REGISTRAR IBRAHIM BADAMASI BABANGIDA UNIVERSITY

3.THE GOVERNING COUNCIL,IBRAHIM BADAMASI

BABANGIDA UNIVERSITY …………………. DEFENDANTS

REPRESENTATIONS:

Akingbade Oyelekan, Esq. with Isochukwu Michael Nwosu, Esq.

and Martins Esther, Esq. for the claimant.

M. Ndamitso, Esq. with M. L. Abubakar, Esq. and

Rosemary Abubakar, Esq for the defendants

JUDGMENT

1.0 INTRODUCTION:

The claimant filed a writ of summons accompanied by statement of claim, list of witnesses, list of documents to be relied upon and copies thereof on the 13^th of March, 2019. The claimant prays for the following:

A declaration that the purported postdated letter of termination of appointment is illegal and unconstitutional, null and void.
An order of the Honorable Court declaring the claimant as substantive staff of 1^st respondent.

The defendants filed a memorandum of appearance, a statement of defence and other accompanying documents through a motion for extension of time dated 5/4/2019. The claimant filed a reply without a witness statement on oath on the 10/5/ 2019.

2.0 FACTS OF THE CASE:

The claimant was employed as a lecturer with the 1^st respondent. Any other fact constituting the facts of this case is better seen in the case of the claimant.

3.0 CASE OF THE CLAIMANT:

The claimant testified as CW1 in line with her witness statement on oath as follows:

I was employed into the services of the 1^st respondent by a letter dated 10^th November, 2005 followed by notice of ratification dated 26^th September, 2007 by the 1^st respondent’s registrar one Dr. U.B. Ahmed MFR; then followed by notification of appointment dated 27^th May, 2010 signed by one Samaila Mohammed; and also received a letter of upgrading dated 20^th October, 2016 signed by Idris Saleh Kusherki (Establishment Secretary) of the 1^st respondent.

I was the examination officer at the School of Preliminary and Basic Studies of the 1^strespondent for six years without any blemish. I had continuous misunderstanding with one Dr. Abubakar S. I. Gudugi (the Director) School of Preliminary and Remedial Studies of the 1^st defendant who always pestered me for immorality.

A letter of query was dropped in my pigeon hole by the Director School of Preliminary and Remedial Studies Dr. Abubakar S. I. Gudugi which I answered dated 9^th March, 2017 and also personally explained to him the reason of my absence. Dr. Abubakar S. I. Gudugi was bent on frustrating me out of the school because of my refusal to be involved in extra marital affairs.

PW 1 testified under cross-examination thus:

I reported Dr. S.I. Gudugi when he refused to recommend me for promotion. I did not report the issue of sexual harassment at the time until when he refused to recommend me for promotion.

The following documents were tendered and admitted in evidence-

Letter of appointment- HA 1
Notice of approval of transfer- HA 2
List of transfer seeking transfer- HA 3
Notice of ratification- HA 4
Letter of upgrading- HA 5
Query letter- HA 6
Response to query- HA 7
Re-report of insubordination- HA 8
Last warning- HA 9
Termination of appointment- HA 10
Request for reversal- HA 11

4.0 CASE OF THE DEFENDANTS

One Sani Hassan Ndaliman, the Deputy Registrar of the 1^st defendant, testified on behalf of the defendants as DW 1 in line with the statement of defence as follows;

The plaintiff’s appointment was terminated by the defendants on the 27/11/2018 following the meeting and resolution reached there from by the 3^rd defendant. The meeting was held on the 27/11/2019. The plaintiff’s attitude to her official primary assignments and other assigned official responsibilities as a staff of the 1^st defendant became grossly unsatisfactory since 2012 which had a catastrophic effect in the performance of students in mathematics units which was headed by the plaintiff.

The plaintiff was served with several query letters and warning letters. Also, several letters of complaint were written against the plaintiff as a result of her misconducts and unsatisfactory attitude to work. These letters were made available to the Senior Staff Disciplinary Committee of the 1^st defendant of which I was the secretary, to investigate complaints against the plaintiff. The report of the Senior Staff Disciplinary Committee was handed over to the 3^rd defendant which deliberated on the said report during the council meeting whereat, the council resolved and terminated the plaintiff’s appointment. The finding of the disciplinary Committee revealed that the plaintiff had failed to perform and discharge her primary and other official responsibilities or any assigned responsibility by the 1^st defendant diligently and with all seriousness it deserves.

The termination of the plaintiff’s appointment was based on the violation of the provisions of Regulations Governing the Conditions of Appointment and Service of Senior Staff of the 1^st defendant as found by the Disciplinary Committee. The termination of the plaintiff’s appointment was not predicated upon any allegations of sexual harassment but based inter alia on findings of misconducts, insubordination and lackadaisical attitude to work against the plaintiff which contravenes the provisions of the Regulations Governing the Conditions of Appointment and Service of Senior Staff of the 1st defendant.

The defendants were never a party to or aware of any purported allegation of sexual harassment or any acts of immorality by one Dr. Abubakar S.I. Gudugi or any other person against the plaintiff or anyone else including Hajiya Maimuna Mohammed. If there was any such sexual harassment against the plaintiff (which the defendants denied) same was never at any point in time brought to the notice of the defendants by the plaintiff or anyone else.

The plaintiff’s salary was once stopped for three (3) months by the defendants as a punishment for her misconduct and unsatisfactory attitude to work. The termination of the plaintiff’s appointment was not designed to frustrate her but to save the institution from further poor performance of the students in mathematics class occasioned by the nonchalant attitude to her work by the plaintiff.

Under cross examination, DW 1 testified as follows:

I am not a professor. I do not work in the school of basic and preliminary studies. I was the secretary of the Senior Staff Disciplinary Committee. I signed exhibits SHN 14. The two witnesses called were directors. What prompted the disciplinary committee to sit on this matter was as a result of various queries. We established that the queries were served on the claimant. Exhibit SHN 14 was the basis for the decision in Exhibit SHN 13.

The following documents were tendered and admitted in evidence:

Re-application for study release dated 19/12/2012- SHN 1
Re-application for study release dated 23/11/2013- SHN 2
Complaint on Halima Adamu dated 10/10/2016- SHN 3
Query letter dated 7/10/2013- SHN 4
Query letter dated 28/2/2013- SHN 5
Query letter dated 2/3/2017- SHN 6
Report of insubordination dated 24/8/2018- SHN 7
Report of insubordination dated 22/2/2018- SHN 8
Report of insubordination dated 6/8/2018- SHN 9
Last warning letter dated 15/3/2018- SHN 10
Report of the meeting of senior staff disciplinary committee dated 16/10/2018 -SHN 11
Regulations Governing the Conditions of Appointment and Service of Senior Staff of the 1^st defendant- SHN 12
Minutes of the 42^nd regular meeting of the 3^rd defendant dated 27/11/2018- SHN 13

5.0 CLAIMANT’S REPLY TO JOINT STATEMENT OF DEFENCE

The claimant counsel filed a 12 paragraph reply to statement of defence accompanied by documents but without a witness statement on oath.

6.0 DEFENDANT’S FINAL WRITTEN ADDRESS:

The counsel for the defendants in his final written address formulated two issues for determination and argued them together as follows:

Whether having regards to the pleadings of the parties herein and the evidence led thereon, the termination of employment of the claimant by the 3^rd defendant is illegal and unconstitutional.
Whether the 3^rd defendant being the employer of the claimant has the power to terminate the employment of the claimant.

The learned counsel submits that the argument of the claimant that the termination of her employment is illegal and unconstitutional goes to no issue. This is because by sections 131, 132, 133(1) of the Evidence Act 2011, the burden of proof lies on the claimant which has not been discharged. This is more so as the relief sought by the claimant is a declaratory relief. See Ogboru v. Okowa(2016) 11 NWLR Pt. 1522 pg. 84 SC at pg. 123. Learned counsel further argues that termination of employment of the claimant is underpinned on the findings of the Senior Staff Disciplinary Committee, precisely- misconduct, insubordination and lackadaisical attitude to work on the part of the claimant. The claimant responded to and admitted the allegations made against her at page 4-5 of Exhibit SHN 14. Consequently, the 3^rd defendant at its 42^nd regular meeting (Exhibit SHN 13) relied on the observations and recommendations of the Disciplinary Committee at pages 4-6 and 5-6 of exhibits SHN 11 and SHN 14 respectively to terminate the claimant’s employment.

It is equally the contention of the counsel that the employment of the claimant is one with statutory flavor. This is because the terms in Exhibit HA 1 provides, inter alia, in paragraph 2 that the appointment is subject to the provisions of the University Laws and Statute and the Regulations Governing the Conditions of Appointment of Senior Staff (Exhibit SHN 12). Section 6 of the latter provides how and by whom discipline for misconduct can be effected. The Senior Staff Disciplinary Committee found the claimant guilty of misconduct, to which the claimant did not deny, evidenced by Exhibits SHN 11 and 13. As such, there has been due compliance with section 6 of Exhibits SHN 12. See Obanyev.UBN Plc (2018) 17 NWLR (pt. 1648) pg. 375 at pp. 389,

Furthermore, it is the contention of the learned counsel that the claimant has been issued with several query letter, none of which she replied. This in itself constitutes insubordination punishable by termination (section 6.1 (3) of Exhibit SHN 12. See Exhibits SHN3,4,5,6,7,8,9 and 10. In exhibit SHN 14, pg. 4, lines 78-99, it is stated thus:

‘She agreed to the numerous queries written to her which she never replied. She replied that “I don’t know I needed to reply”.’

In conclusion, learned counsel argues that reasons have been given for the termination and urged the court to refuse the reliefs of the claimant.

7.0 CLAIMANT’S FINAL WRITTEN ADDRESS:

Counsel to the claimant formulated four issues for determination and argued them as follows:

Whether the defendants filed a valid statement of defence before this court:

The learned counsel postulates that though there is a list of lawyers on the processes filed by the defendants and the law firm, it is not precisely indicated who signed the processes filed as such there was no process filed. See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. First Bank of Nigria Plc v. Maiwada (2013) 5 WLR (Pt. 1344) 44. Ogundele v. Agiri (2019) 12 SC (Pt. 1) 135.

Whether the claimant’s termination of appointment followed the provisions of section 6(1) (b) of the defendants’ condition of service.

The counsel submits that the employment being one with statutory flavor makes it imperative for the defendants to abide by the provisions of section 6(1)(b) of Exhibit SHN 14. By the latter provision, three query letters must be served on the claimant before proceeding to termination. The claimant has denied receiving these letters and the defendants failed to adduce endorsed copies of same, thus failing short of the conditions in section 6(1)(b)(1)(2) of Exhibit SHN 14. By section 135(1) of the Evidence Act 2011 places this burden on the defendants. See also Ogunleke v. National Steel Development Authority (1974) NWLR 128. Shitta Bay v. Public Service Commission (1981) 1 S.C. 40.

Whether the claimant was denied her right of fair hearing:

It is argued that the claimant was not availed with the full facts of the allegations against her as she was not privy to the query letters prior to the disciplinary meeting. This is akin to denying the claimant the right of fair hearing. See Garba v. University of Maiduguri (1986) 17 NSCC (Pt. 1) 245; (1986) 1 NWLR (Pt. 18) 550.

Whether the Senior Staff Disciplinary Committee followed international and national acceptable procedures in the course of investigation of the case against the claimant:

Learned counsel asserts that the Disciplinary Committee failed to call persons that are affected by the actions or inactions of the claimant, as well as those that have witnessed alleged offences firsthand. Instead, the Committee opted for the Director of the Preliminary Studies who the claimant accused of sexual misconduct, and the other who is not privy to the events culminating in the disciplinary action. See Balogun v. University (2002) 13 NWLR (pt. 783) 42 at 53.

7.0 DEFENDANTS’S REPLY ON POINT OF LAW:

On the contention of the claimant that the statement of defence is invalid as it is not signed by a lawyer, the counsel to the defendants responds that the requirement of the law has been complied with as far as signing court processes is concerned. These are- the names of the lawyers representing the defendants is clearly listed- I. M. Ndamitso Esq., M.L. Abubakar Esq., Rosemary Abubakar Esq., I.N. Kajere, Esq. U.M. Mayaki Esq.; it is clearly indicated that the above named counsels will be representing the defendants; the name of the law office on the processes- Ibrahim Ndamitso& Co. See the case of Emeka v. Ikpeazu (2017) EJSS (vol. 67) 57 S.C. Williams v. AboldStamm International (Nig.) Ltd (2017) 6 NWLR 1 at (pp. 19-20, paras E-B). Moreover, there is a printout receipt of practicing fees of Ibrahim Muhammad Ndamitso Esq. the signature appended to the receipt is “Ibrahim” same as the one on the processes. In addition, the cases relied upon by the claimant’s counsel are incongruous to the facts of the case at hand- Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. First Bank of Nigria Plc v. Maiwada (2013) 5 WLR (Pt. 1344) 44. Ogundele v. Agiri (2019) 12 SC (Pt. 1) 135. These cases pertain to where only the name of the law firm is written on the processes and not that of the lawyers, yet they are signed by an unknown lawyer or person.

Furthermore, the issues of lack of fair hearing and improper investigation in line with national and international best practices are incompetent. This is because they were not pleaded and no evidence was adduced in support. See Order 30 Rule 8 and Order 14A Rule 1(2) of the NICN Rules 2017.

8.0 ISSUES FOR DETERMINATION

The defendants formulated two issues for determination while the claimant formulated four issues for determination as already reproduced above. The court is of the considered view that the issue for determination is as follows;

Whether having regards to the statement of facts and the evidence led thereon, the claimant has proven her case to be entitled to the reliefs sought.

COURT DECISION

Learned defendants’ counsel contended that no reasonable cause of action has been disclosed against the defendants. Learned claimant’s counsel brilliantly tried to articulate the complaints in his final written address.

Cause of action and reasonable cause of action has been defined as follows;

In HADO NIGERIA LIMITED & ANOR. V. CHRISBROWN INTERNATIONAL LIMITED & ANOR. (2013) LPELR-21171(CA) the court held;

It is settled, from the authorities that a cause of action means the factual situation stated by the plaintiff, which if sustained, entitles him to the remedy against the defendant. It is that set of facts which gives the plaintiff the right to sue the defendant. It comprises every fact which is the material to be proved to enable the plaintiff to succeed. See EGBE v. ADEFARASIN (1985) 3 SC 214; THOMAS v. OLUFOSOYE (1986) 1 N.W.L.R. (Pt.8) 669. The reasonable cause of action is that cause of action which, in law, has some chances of success and which sets out the legal rights of the plaintiff and the obligations of the defendant. See RINCO CONST. CO. v. VEEPEE IND. LTD. (2005) 9 N.W.L.R. (Pt.929) 85.

RINCO CONSTRUCTION CO. LTD. V. VEEPEE INDUSTRIES LTD. & ANOR.

(2005) LPELR-2949(SC); (2005) 9 NWLR (Pt.929)85

Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks.

I have read the entire 12 paragraph statement of facts and the 10 paragraph witness statement of the claimant, the real allegation of wrong doing by the defendant is not disclosed in any paragraph of the pleadings. The entire pleadings is concerned with allegation of sexual advances against one Dr.Abubakar S.I Gugudi who is not a party to this suit. The blame for claimant ordeal is put on the said Dr. Gugudi’s desire to deal with the claimant for refusing his sexual advances. There is no allegation of any wrong doing of any sort against the defendants.

Even the fact in paragraph 11 of the statement of facts alleging the issuance of a dismissal letter have been abandoned in the witness statement as it is not in the witness statement on oath. There is no evidence that the claimant was dismissed. There is no evidence that she appeared before a disciplinary committee and was denied fair hearing.

The 12 paragraph reply of the claimant is not supported by a witness statement on oath so they do not translate into evidence before the court.

What exactly is the complaint of the claimant has not been disclosed. There is no allegation of wrong doing by the defendants against the claimant.

I agree with learned defendants counsel and find that no cause of action, let alone a reasonable one, is disclosed by the claimant against the defendants.

The complaints of the claimant counsel in his final written address are not contained in the pleadings and evidence of the claimant, such complaints amounts to evidence by counsel in his final written address and they cannot take the place of evidence. See

PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES v. MR. NOEL AYWILA & ANOR (2017) LPELR-43204(CA) where the court held;

It is also settled law that a written address of counsel no matter how fanciful and brilliant cannot be a substitute for pleadings or evidence. In other words, address of counsel cannot take the place of pleading by a party. See Ayorinde v Sogunro (2012) 11 NWLR (Pt. 1312) 460 @ 501 paras D E.

The claimant must first discharge the burden of proof placed on him before the defendant can be called upon to defend as the burden of proof would have shifted. In this case, the claimant did not put any issue in dispute between her and the defendants so she has not created any burden of proof as there is no issue in dispute between the claimant and the defendants revealed in the statement of facts and evidence.

See HONIKA SAWMILL (NIG.) LTD V. HOFF (1994) 2 NWLR (PT.326) 252 where the court Per ONU, J.S.C held;

“The burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties.”

On the whole the claimant’s case is lacking in merit and same is hereby dismissed. I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, MINNA.