Mr. Christopher Dele Ebiaku -VS- The Rector, Auchi Polytechnic,

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. N. AGBAKOBA

DATED: 12^TH FEBRUARY, 2019 SUIT NO: NICN/ABJ/450/2016

BETWEEN:

CHRISTOPHER DELE EBIAKU CLAIMANT

AND:

THE RECTOR, AUCHI POLYTECHNIC, AUCHI
THE REGISTRAR, AUCHI POLYTECHNIC, AUCHI
AUCHI POLYTECHNIC, AUCHI DEFENDANTS
THE MINISTER OF EDUCATION AND THE

VISITOR TO AUCHI POLYTECHNIC, AUCHI

REPRESENTATION

D.A. ALEGBE Esq. for the Claimant with V. O.EDEGBINI Esq.

Y. MUSA Esq, for the 1^ST– 3^RDDefendants

JUDGEMENT

The claimant, by a General Form of Complaint with the accompanying frontloaded documents filed on 16^th December, 2016, approached the Court for the following reliefs:

(i) A DECLARATION that the letter of termination dated the 1st December 2016 issued by the Defendants to the Claimant terminating him from the employment and of the 3 Defendant not being authorised or a product of the Governing Council of the 3rd Defendant is a nullity ab initio and it is therefore ineffectual to terminate the Claimant’s employment with the 3rd Defendant.

(ii) A DECLARATION that arising from the aforesaid the Claimant is still in the employ of the 3 Defendant.

(iii) A DECLARATION that the Claimant’s employment with the 3rd Defendant cannot lawfully be terminated 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 of the 3rd Defendant as enshrined in the Regulation Governing the Senior Staff of the Polytechnic made pursuant to the Federal Polytechnic Act.

(iv) A DECLARATION that the Ad-Hoc committee set up by the 3rd Defendant lacks the vires/power to try the Claimant for an alleged misconduct as contained in the Federal Polytechnic Staff Manual and the Federal Polytechnic Act as well as recommend the termination of his employment with the 3rd Defendant.

(v) A DECLARATION the purported termination on the Claimant’s employment on the basis of the report of an Ad-Hoc ‘fact finding’ Committee set up by the 3rd Defendant is unlawful, illegal and unconstitutional because the entire process violated his right to fair hearing.

(vi) A DECLARATION that the 4th Defendant lacks the power/vires to unilaterally order the 1^st and 3rd Defendant to terminate the Claimant from the employment of the 3rd Defendant because such powers are exclusively reserved for the Governing Council of the 3rd Defendant by the Federal Polytechnic Act

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

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

Claimant’s Case

The Claimant who was a Principal Lecturer in the Department of Basic Sciences, School of General Studies of the 3rd Defendant averred that following the publication in the Punch Newspaper of Saturday April 9, 2016 titled “School whom prostitutes assist male students to get marks” the 1st Defendant set up an Ad- Hoc committee on the Scandalous publication against Auchi Polytechnic, Auchi. The Claimant was invited through a text message to appear before that Ad- hoc committee as a witness on the 29^th day of April 2016.

Claimant stated that the Ad-Hoc committee indicted the Claimant as one of the persons referred to in the publication in the Punch newspaper even though he was not specifically mentioned therein. On the 8th day of June, 2016, the 2nd Defendant issued the Claimant a query based on the finding of the Ad-Hoc Committee to which the claimant replied on the 10th day of June, 2016.

The 2nd Defendant upon receipt of the reply to the query issued the Claimant with a letter of termination on the directive of the 4th Defendant who is the visitor to the 3rd Defendant without any input from the Governing Council which at any rate was not in place at the time the letter of termination was issued.

It is the letter of termination issued to the Claimant without the authority of the Governing Council and the denial of his right to make a representation to the Council as specified under the Federal Polytechnic Act 2004 and the Federal Polytechnic Staff Manual, 1990 that has led the Claimant to challenge his termination as ultra vires the powers of the Minister and Visitor to the Auchi Polytechnic, Auchi and therefore unlawful.

1ST – 3RD DEFENDANTS’ JOINT STATEMENT OF DEFENCE filed on 2^nd February, 2017 and dated 22^nd January, 2017.

Defendant’s Counsel responding to paragraphs 16, 17 and 18 of the Statement of Facts, stated that Claimant was invited and appeared before the ad hoc Investigative Committee not as a witness but to answer the allegations against him. And that whilst it is correct that the Claimant gave his response to the query issued him, there is absolutely no illegality involved in issuing the Claimant a query. Again, that the setting up of the ad hoc committee and query issued to the Claimant was not in breach of the Federal Polytechnic Act as erroneously alleged by the Claimant.

Answering paragraph 19 of the Statement of Facts, the 1^st – 3^rd Defendants stated that the administrative query issued to the Claimant on 8th June, 2016 is utterly different from the notice of grounds of removal of an academic staff from office provided for in paragraph 8.4 of Chapter 8 of the Federal Polytechnic Staff Manual applicable to the Claimant.

1^st – 3^rd defendants replying paragraph 27 of the statement of facts, stated that the Ad hoc Investigative Committee constituted to investigate the scandalous Punch Newspaper publication of 9th April, 2016 against the 3rd Defendant is not the Disciplinary Committee envisaged by the Federal Polytechnic Staff Manual, The Federal Polytechnics Act and the Auchi Polytechnic Law, 1976. The said Ad hoc Investigative Committee was a mere fact finding Committee, which was constituted to investigate the grave allegations made against the 3^rd Defendant in the newspaper publication.

The 1st — 3rd Defendants aver that the Claimant was lawfully dismissed from the employment of the 3rd Defendant following the instruction of the 4th Defendant who is the visitor to the 3 Defendant Polytechnic.

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

At the trial, the claimant testified on his own behalf as CW; tendered 10 documents which were marked exhibit C1- Exhibit C10.
Witness Statement on Oath 16/12/2016 marked C1
Letter of Appointment on Probation (6/10/1999) marked C 2
Letter of Confirmation 1/11/2002 marked C3
Letter of Promotion of 9/6/2015 marked C4
Letter of Query of 8/6/2016 marked C5
Letter of reply to query signed 10/5/2016 marked C6
Letter of Protest to the Rector by Claimant off 13/6/2016 marked C7
Letter of Termination of Appointment dated 1/12/2016Marked C8
Auchi Polytechnic News Bulletin dated vol 98, No 99 October 2016 marked C9
Federal Polytechnic Staff Manual 1990 marked C10

Exhibits C6 and C7 were admitted under protest:-

No proper foundation no notice to produce

After examination in chief the parties applied for the consolidation of this suit with two other sister suits and by order of this court this suit NICN/ABJ/458/2016, was consolidated with NICN/ABJ/450/2016 and NICN/ABJ/453 /2016 and that NICN/ABJ/458/2016 was designated the test case for the trio, so that the findings in NICN/ABJ/458/2016 will abide in NICN/ABJ/450 /2016,and NICN/ABJ/453/2016.

While Cornelius S. Garuba, Deputy Registrar, Senior Staff Establishment of the 3^rd defendant, testified as DW. The 4^th defendants rendered no defence. Thereafter, the claimant and the defendant parties filed their respective written addresses. The defendant’s final written address is dated and filed on28th August 2018, while the claimant’s is dated and filed on10th September 2011. The defendant’s reply on points of law was filed on 26^th September 2018.

1ST – 3RD DEFENDANTS’ FINAL WRITTEN ADDRESS filed on 28^th August, 2018.

ON ISSUE 1

Whether in view of the peculiar facts and circumstances of the instant case, the termination of the Claimant’s appointment from the service of the 3rd Defendant was not lawful and justified in law.

Learned Counsel submitted that the Claimant cannot contend that his appointment cannot be terminated by the 4th Defendant in the absence of the Governing Council of the 3rd Defendant, which was not in existence at the material time the Claimant’s employment with the 3rd Defendant was terminated, as Parties are not allowed to approbate and reprobate at the same time. Intercontinental Bank Ltd v. Brifina Ltd (2012)13 NWLR (Pt. 1316) 1 at 22 para H, per Nwguta, JSC; Suberu v. State (2010) 5 SCM 215; (2010) 1 NWLR (Pt. 1176) 494; Donald v. Saleh (2015) 2 NWLR (Pt. 1444) 529 at 585.

Consequently, that it would be practically impossible as wrongly contended by the Claimant, for the Defendants to comply with a requirement which was not in existence as at the time of the publication. And that a court cannot compel the performance of the impossible as expressed in the Latin maxim: Lex non cogit ad impossibilia. Iwuoha & Anor v. Kezie & Anor. (2016) LPELR-40078 (CA), per Ige, JCA at p. 22 para. G.

Furthermore, it is settled principle of law that an admitted fact requires no further proof. Al – Hassan v Ishaku (2016,)10 NWLR (Pt. 152Q) 230 at 299 paras B — C; Ntuks v NPA (2007) 13 NWLR (Pt. 1051) 392 at 420 paras D — E, per Tobi, JSC; Prof Theophilus Adelodun 0km & Anor v. Mrs. Agnes Iyeba 0km (2016) LPELR — 41165, per Onyemenam, JCA at pages 12 — 13, paras E — A.

Counsel contended that the Senior Staff Disciplinary Committee is not a statutory body, which the Defendants are mandated by any law to make recourse to in the disciplining of any staff of the 3rd Defendant. He urged the Honourable Court to discountenance the contention of the Claimant that his right to fair hearing was breached by the procedure adopted by the Defendants, as the Defendants cannot be required to comply with the impossible. Iwuoha & Anor v. Kezie & Anor. (2016) LPELR-40078 (CA) (supra).

Counsel submitted that the Claimant’s evidence in chief at paragraph 23 of his written deposition to the effect that he would have been exonerated if he had appeared before the Governing Council of the 3rd Defendant is of no moment as same is speculative; urging the Court to discountenance the said contention as it is trite that the court does not act on mere speculation. Daniel v. 1NEC (2015) 9 NWLR (Pt. 1463) 113 at 157 paras A, per Ogunbiyi, JSC; Matthew v. Otabor (2015) 14 NWLR (Pt. 1479) 360 at 388 paras F-G; Banke v. Akure North Local Govt., (2015) 6NWLR (Pt. 1455) 400.

It is counsel’s submission that having not denied that he was afforded the opportunity to present his case when he was identified as one of the staff of the 3rd Defendant that was involved in the allegations contained in the scandalous publication, the Claimant cannot turn around to challenge the termination of his employment from the service of the 3^rd Defendant. S.D. Construction Co. Ltd v Chief Bayo Ayoku & Anor (2011) LPELR — 2965 (SC) p. 21 paras E — F; Omo v Judicial Service Commission, Delta State (2000) 12 NWLR (Part 652) 444. Okoye v Nigeria Construction & Furniture Co. Ltd (1991) 6 NWLR (Part 199) 501 at 541; Nnaji Auwalu Darma v Eco Bank Nig Ltd (2007) LPELR — 41663 (SC) Pp.18—19 paras A—D.

Counsel submitted that the case of Adeniyi v. Governing Council of Yaba College of Technology (1993 – 1994) All NLR 1 cited and heavily relied upon by the Claimant is totally inapplicable to the facts of the present case and distinguishable for the following reasons.

Firstly in the Adeniyi’s case, the court found that the staff was only invited as a mere witness and was not afforded the opportunity to appear before the Governing Council of the College to defend himself, whereas in the present case, the Claimant was invited and notified of the allegation against him and he utilized the opportunity to defend himself before the Ad hoc Committee.

Again, that in the Adeniyi’s case, there was an existing Governing Council for the College which failed to invite the staff to defend himself. Meanwhile, in the instant suit, parties are ad idem on the fact that there was existing Governing Council for the 3rd Defendant at the material time, thus the Claimant cannot be expected to be made to appear before a non-existent body.

Counsel submitted that it is settled law that a case is only an authority for what it decides and the ratio of case cannot be pulled by the hair and applied hook, line and sinker to another case which the surrounding circumstances are different. Yabatech v M.C. &D Ltd (2014) 3 NWLR (Part 1395) 616 at 659, per Nweze, JCA (as he then was); Anekwe v State (2014) 10 NWLR (Part 1415) 353 at 370 — 371 paras H – A.

He further submitted that the case of Mrs. Kathleen Olaofe v University of Ibadan (2002) FWLR cited and relied upon by the Claimant at paragraph 4.14 of his final written address, supports the 1st — 3rd Defendants’ case as the 4th Defendant acted within the general powers conferred on him by the Federal Polytechnic Act, Cap F17 Law of the Federation of Nigeria, 2004.

ON ISSUE 2

Whether the termination of the claimant’s appointment with the 3rd Defendant is not in accordance with the terms of the agreement between the parties.

Learned Counsel submitted that it is trite that once parties, have reduced their agreement into writing, both the court and the parties are bound by the terms of the contract and that neither parties nor the court would be allowed to read into the contract, requirement that is not so stated therein. Idufueko v Pfizer Products Ltd (2014) 12 NWLR (Part 1420) 96 at 132 paras F — G, per Okoro, JSC; Uwah v Akpabio (2014) 7 NWLR (Part 1407) 472 at 489 paras D — E, per M.D. Muhammed, JSC; Williams v Williams (2014) 15 NWLR (Part 1430) 213 at 242, per Abubakar, JCA; Faloughi v First Impression Cleaners Ltd (2014) 7 NWLR (Part 1406) 335 at 369 paras C—E.

Furthermore, that it is the letter of appointment that the court will make reference to, in determining the rights and obligations of the parties. Mr. Peter Onyeachonma Obanye v Union Bank of Nigeria Plc. (2015,) LPELR — 25891 (CA) pp. 9 -10 paras B-E, per Bolaji-Yusuff, JCA.

CLAIMANT’S FINAL WRITTEN ADDRESS filed on 10^th September, 2018.

ISSUES

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 E4 laws of the Federation 2004 in enforcing the recommendation of the investigative Ad-Hoc committee on scandalous publication against Auchi Polytechnic Auchi to terminate him from his employment as a Principal Lecturer in the Department of Basic Sciences.

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 terminating the Claimant from his employment. If the answers to the above issues are in the negative.

Whether the Claimant is not entitled to reinstatement to his position and his Salaries and allowances as a Principal Lecturer.

ON ISSUES ONE AND TWO

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 E4 laws of the Federation 2004 in enforcing the recommendation of the investigative Ad-Hoc committee on scandalous publication against Auchi Polytechnic Auchi to terminate him from his employment as a Principal Lecturer in the Department of Basic Sciences.

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 terminating the Claimant from his employment. If the answers to the above issues are in the negative.

Learned Counsel submitted that it is the law that the onus is on the Claimant to prove that the termination of his employment is unlawful. And that to discharge this onus he must prove:

(a) That he is in the employ of the Defendant.

(b) Place before the court the terms and conditions of his employment

(d) In what circumstances the appointment can be determined

OKOMU OIL PALM CO LTD V ISERHIENRHIEN (2001) 6 NWLR (Pt. 710)660, EMOKPAE V UNIBEN (2002) 17 NWLR (Pt. 795) 139.

He submitted that from the pleading and both oral and documentary tendered by the Claimant, his employment with the 3rd defendant enjoy statutory flavour in the sense that its condition of service are provided for and protected by the Federal Polytechnic Act and the Federal Polytechnic Staff manual, 1990. COLLEGE OF EDUCATION, EKIADOLOR V OSAYANDE (2010) 6 NWLR (Pt. 1191) Pg. 423 @ 450 Paras H, 45l Paras E-F.

Furthermore, that by virtue of Section 318 of the 1999 constitution of the Federal Republic of Nigeria the Claimant being a person employed in the public service of the Federation as a staff of an Educational institution established or financed principally by the Government of the federation has his employment garbed with statutory flavour. OLANIYAN V UNVERSITY OF LAGOS & ANOR (1985) NWLR (Pt. 9) Pg. 599; (1985) Legalpedia SC 4 AUB, PER OBASEKI, JSC.

Counsel posited that the Defendants have purportedly terminated the Claimant on the ground of misconduct and before the termination under that head can be lawful, the Defendants have to comply with the provisions of Section 17 of the Federal polytechnic Act and Paragraph 8.4 of the Federal Polytechnic Staff Manual 1990.

He submitted that from the wording of the section, these provisions are mandatory and must be complied with before a person whose employment is referred to in the section can be validly removed from office. In this case the Governing Council was not in place let alone satisfying any of the preconditions for the exercise of the power to remove the Claimant. That the Governing Council did not set up the Ad-hoc Investigative Panel and was not the Investigative Panel before who the Claimant appeared as a witness; and that the Claimant never had the opportunity of appearing or making a representation to the Council or the 4th Defendant who authorised his termination. Neither was he given a Notice to do so and that the only query he received was issued by the 2 Defendant without any input or directive from the Council and his reply to the query was to him and not the Council. MRS. KATHLEEN OLAQEE V UNIVERSITY OF IBADAN (2002) FWLR p. 90 paras. E.

Counsel argued that the Investigative Committee having indicted the Claimant, the Defendants were under an obligation to comply with Section 17 of the Federal Polytechnic Act and the Federal Polytechnic Staff Manual 1990 by ensuring that the Governing Council gave notice of the finding and recommendation in the ad-Hoc committee to the Claimant and afford him the opportunity of making a representation in person on the matter to the Council. ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993-1994) ALL NLR 1@25, PER KARIBI-WHITE; OLATUNBOSUN V NISER (1988)3 NWLR 25.

He submitted that the Supreme Court has pronounced on the mandatory effect of statute in pari material with Section 17 of the Federal Polytechnic Act in OLANIYAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (PT9) 599 OLATUNBOSUN V NISER COUNCIL(1988) 3 NWLR (Pt80) 25.

Furthermore, the Supreme Court had occasion to consider Section 12 of the Federal Polytechnic Act, 1979 which is in pan material with section 17 of the Federal Polytechnic Act Cap F 17 Laws of the Federation 2004 in the case of ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECNOLOGY (1993- 1994) ALL NLR Pg. 126 Paras G-H, Whime KARIBI- WHYTE JSC.

Flowing from the above, he submitted 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 for it to determine Whether or not to dismiss the Claimant from his employment. KWARA STATE POLYTECHNIC, ILORIN V SHITTU (2013) 17 W.R.N. Pg78 @ 86 Ratio 7.

On the submission by the 1st to 3rd Defendant’s Counsel that the Claimant did not file a reply to their Statement of Defence and therefore he is deemed to have admitted the averments therein, counsel submitted that the learned Counsel 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 defence raises new issue. That in this case, no new issue arose from their defence. ISHOLA V SOCIETY GENERAL BANK LTD (1997) 2 SCNJ @ 16.

Counsel posited that the 3rd Defendant is a creation of statute and Section 17 of the Federal Polytechnic Act provides the procedure for dismissal on grounds of misconduct; which grounds the Defendants deviated from; and that a Court of law cannot ignore provisions of a Statute which are mandatory. C.C.C.T & C.S LTD V EKPO (2008) ALL F.W.L.R (PART418) PAGE 198; C.I. OLANIYAN & ORS V. UNIVERSITY OF LAGOS & ANOR (1985) Legalpedia S.C AUB

ON ISSUE THREE

Whether the Claimant is not entitled to reinstatement to his position and his Salaries and allowances as a Principal Lecturer.

Learned Counsel submitted that the law is not settled and engrained in our jurisprudence that when an employment that is protected by status is unlawfully terminated, the remedy is to declare such an 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) PAGE 432 @ P. 455 Paras D.

1ST – 3RD DEFENDANTS’ REPLY ON POINTS OF LAW filed on 26^th September, 2018.

Learned Counsel posited that the law is trite that where any contract, including contract of employment, as in the instant case, is reduced into writing, it is the appointing document that the court must take into consideration in determining the conditions for service which they are expressly stated therein. Olaniyan & Ors v. UNILAG & Anor. (1985) LPELR — 2565 (SC), per Karibi — Whyte, JSC at page 133 paras B — C.

Counsel contended that the Claimant missed the point when he argued at paragraph 4.30 of his final written address to the effect that the court cannot ignore mandatory statutory provision i.e. the Federal Polytechnic Act, to implement the agreement of the parties i.e. Exhibit CW2 and therefore fell into grave error of applying the principles stated in C.C.C.T & CS Ltd v. Ekpo (2008) All FWLR (Pt. 418) 198 and Olaniyan & Ors v. University of Lagos & Anor (1985) to the instant case. That the decision of the apex Court in Olaniyan & Ors v. University of Lagos & Anor (supra.), which seems to be similar with the present case is distinguishable from the present case and totally inapplicable to the facts of this case.

He submitted that it is trite that a party who tendered a document and relied on same in proof of his case cannot at the latter stage of the proceedings disassociate himself from the effect document. And that the Claimant tendered Exhibit CW2 to establish his relationship with the 3rd Defendant and the terms and conditions of that relationship, therefore, he cannot at this stage accept a part of Exhibit CW2 and deny the applicability of the other content of the said Exhibit to his employment. Emenike v. PDP & Ors (2011) LPELR — 19752 (CA) at 40—41 paras G — B; Oyefolu v. Sadia & Ors (2008) LPELR — 4816 (CA), per Mshelia, JCA.

15^th November 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

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 are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought in this suit

Before delving into the merit of this case I will address two preliminary issues; the objections raised by the defendant one as to the proper service and secondly the objection raised during trial as to exhibits C6 and C7.
Firstly the defendants took stock with the mode of services of the originating processes on them arguing that the manner adopted in serving them originating processes offended the sheriff and civil processes Act in that the out of jurisdiction endorsements were not affixed on the process served on them.

A similar argument was determined in another sister case a case this morning and the ruling there I find will abide for this objection.

:- 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 5^th 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 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

This I find is the position of the law particularly when one considers the provision of section 21 NICA 2006 and Order 7 rule 15.
By the foregoing I find and hold that the defendants were duly served.

I find that the provisions of the Sherriff and civil processes Act the basis of this initial do not contemplate this court see,

Now to the objections as to the admissibility of exhibit C6 and7. The defendants grouse is that these documents are photocopies and that the claimant had not laid the proper foundation for tendering secondary evidence of the document as required by Section 91 of the Evidence Act the second ground of the defendant complaint with regard to the exhibits, is that the claimant had not given the requisite notice to produce to enable the claimant rely on whatever copy he may have,

The claimant tendered ExhibitC6 and C7 being his Letter of Query and his protest to the Rector following the query. In considering this objection it is necessary to note that the crux of the defendants objection is as to the form of the documents, i.e that they are in the secondary state and the procedure by which it was tendered. i.e bereft of a notice to produce now this court in . In Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, had held that –

…the practice in this Court, going by sections 36 and 37 of the Trade Disputes Act 2004, section 12 of the National Industrial Court Act 2006 and Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, in allowing the frontloading of documents assumes them to be automatically admitted except specifically objected to by the opposing party. The question of the weight or probative value to be attached to the frontloaded documents is, however, separately and independently considered by the Court when evaluating the frontloaded documents.

The case of Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454 itself gave the justification as follows –

All of this is made possible given that this court is generally enjoined to be flexible and less formal; and while it is enjoined to apply the rules of evidence, it may depart from it in the interest of justice. In this regard, this Court, for instance, admits secondary evidence of documents, not necessarily the primary evidence where there is no dispute regarding the authenticity.

The current rules of court provide that the claimant in filing his suit is required to file a schedule of documents and exhibits to be relief upon at the trial…. “ Order 3 rule 11 (1).
By Order3 rule (11)(2) the defendant is required to file an acknowledgement indicating the documents(s) the admissibility of which the defendants shall not be objecting as well as those to which the defendant shall be objecting to at the trial.
And any document and exhibit contained in the schedule (List of documents) which is not objected to by the defendant shall be deemed admitted and shall not be allowed to be objected to at the trial except as the Court may otherwise direct.
The proviso continues that the document not objected to would be tendered and marked as an exhibit while the one whose admissibility is challenged by objection the ground of objection shall be raised during trial and the court may immediately or at the judgement rule on the objection.
In addition, Order 40 rule 1(2) provides that all agreed documents or other exhibits may be deemed admitted or tendered from the bar or by a party (where that party is not represented by Counsel).
The practice of this court is to deem documents listed in the parties List of documents/ (Schedule) as duly marked as exhibits in seriatim the numbers listed on the list. This procedure I concede would preclude any application as to foundation. Section 14 of NICA enables the court determine its own procedure.
I am aware of the evidential position as regards secondary evidence such as was held in UNITED CEMENT CO. LTD & ANOR v. LIBEND GROUP LTD & ANOR (2016) LPELR-42038(CA)

But in the instant case the objection does not touch on the authenticity of the document or the content but on the form in which case the cardinal rule would then be relevancy. Are the documents relevant to the claimant’s case, See OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA). Where it was held that relevancy governs admissibility. Exhibit C6 is the letter of query given to the claimant, while Exhibit C7 is the Claimant’s letter to the Rector after responding to the query. I find that both these documents are relevant in a suit where the complaint is the non-compliance with due process in termination of the claimant’s employment.
Now to the merit of this case.
The issue for determination in this suit is whether the claimant is entitled to the reliefs sought in this suit, the reliefs sought in this suit are as follows :-

(i) A DECLARATION that the letter of termination dated the 1st December 2016 issued by the Defendants to the Claimant terminating him from the employment and of the 3 Defendant not being authorised or a product of the Governing Council of the 3rd Defendant is a nullity ab initio and it is therefore ineffectual to terminate the Claimant’s employment with the 3rd Defendant.

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

(v) A DECLARATION that the purported termination on the Claimant’s employment on the basis of the report of an Ad-Hoc ‘fact finding’ Committee set up by the 3rd Defendant is unlawful, illegal and unconstitutional because the entire process violated his right to fair hearing.

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

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

Reliefs (i) – (vi) are for declarations and or pronouncements : – as to the validity of the Letter of termination dated 1^st December 2016 issued to the claimant (Relief (i), the status of the claimant’s employment (Relief (ii)) on who and by what procedure he can be removed (Relief (iii)) the propriety and competence of the ad hoc committee to try the claimant (Relief (iv)) the legality and constitutionality of the said termination (Relief (v)) and the competence and legal capacity of the 4^th defendant to order the 1^st and 3^rd defendant to remove the claimant, (Relief (vi)) as well as orders reinstating the claimant to his post and compelling the payment of his outstanding salaries and allowances.

The position of the law is that A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. OKUMU OIL PALM CO. LTD VS. ISERBIENRHIEN (2001) 6 NWLR PT. 710 PG 660. IDONIBOYE-OBU VS NNPC (2003) 2 NWLR PT. 805 PG 589.In the case of OKOEBOR VS. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444

It was held that “When an employee complains that his employment as been unlawfully terminated, or that he was lawfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer”

In support of his claim the claimant tendered Letter of Appointment on Probation (6/10/1999) marked C 2 , Letter of Confirmation 1/11/2002 marked C3, Letter of Promotion of 9/6/2015 marked C4 as indication of his appointment and the nature of the employment . the claimant also tendered his Letter of Termination of Appointment dated 1/12/2016Marked C8, the Auchi Polytechnic News Bulletin dated vol 98, No 99 October 2016 marked C9 and the Federal Polytechnic Staff Manual 1990 marked C10 as evidence of his contract of service, the terms of his contract and who is empowered to remove him.

From the nature of the employment created by exhibits C2, C3 and C4 as well as relying on the legal position as to the nature of the employment of a lecturer in public institutions, i.e. that such employment is a statutory appointment. See OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 549 AT 599, 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.

Statutory Employment has been described as one where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship; or 2. One where a special legal status as a tenure of public offices is attached to the contract of employment. See OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599; NNPC V. IDANIBOYE-OBA (SUPRA); SHITTA-BAY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC 40.” A statutory flavoured appointment is one which only arises where the procedure for the employment of the servant and his removal there from are governed by statute. See: IMOROAME VS. WAEC (1992) 9 NWLR (PT. 265) 303; OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OLUFEAGBA VS. ABDUL RAHEEM (2010) ALL FWLR (PT. 512) 1033.

I am satisfied that the claimants employment is one of statutory flavour and that the procedure for the discipline of a Senior Staff of the 3rd Defendant as enshrined in the Regulation Governing the Senior Staff of the Polytechnic (Federal Polytechnic Staff Manual 1990 marked C10) made pursuant to the Federal Polytechnic Act. See DEMSHEMINO V. COUNCIL FEDERAL POLYTECHNIC MUBI & ANOR (2013) LPELR-20845(CA)
The claimant’s case is that the statutory provisions stating the way and means the Claimants employment must be determined are notable

Section 17 of the Federal Polytechnic Act Cap E4 laws of the Federation 2004

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

a)give notice of those reasons to the person in question:
b)afford him an opportunity of making representation 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) 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.”

FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (2012) LPELR-7935(CA) the Court of Appeal held that “As can be seen from the provisions section 17 of the Federal Polytechnics Act reproduced, where there is any reason to remove any person employed as a member of the academic staff of a Federal polytechnic on the ground of misconduct what should be done can be summarized as follows:

(1) The Council shall give notice of the reasons to the affected academic staff;

(2) The Council shall afford him, the person affected, an opportunity of making representations on the matter; and

(3) If within a period of one month from the date of the notice, the affected academic staff or any three members of the council so request, the Council shall make arrangements for a joint committee of the council and the Academic Board to investigate the matter and to report on it to the Council.

It was held in THE COUNCIL OF FEDERAL POLYTECHNIC, EDE & ORS. v. OLOWOOKERE (2012) LPELR-7935(CA) that “Section 17(1) of the Federal Polytechnic Act has comprehensive and elaborate provisions for the discipline and removal of academic, administrative and technical staff of a polytechnic. Section 17(1) of the Federal Polytechnics Act, 2004 is in parimaterial with section 12(1) of the Federal Polytechnics Act, 1979 (as amended) which was interpreted in THE COUNCIL OF FEDERAL POLYTECHNIC MUBI V. T. L. M. YUSUF & ANOR (1998) 1 NWLR (PT.533) 343, where the Supreme Court held that any procedure for terminating an employee’s appointment outside the scope of that section would be unlawful, null and void. In order words, where there are a statutory procedural requirements specified or stipulated for the termination of employment, the procedural conditions or requirements must be fulfilled, otherwise the termination will be invalid. See OLATUNBOSUN V. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25; OLANIYAN V. UNIVERSITY OF LAGOS (NO.2) (1985) 2 NWLR (PT.9) 599; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162 and PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. E. O. EJITAGHA (2000) 11 NWLR (PT. 677) 154.

The Court of Appeal continued “………the appellants, being persons created by a statue, can only exercise their powers within the confines of that statute. The appellants cannot act at or on their whims. The procedure for disciplining an academic staff for misconduct, or gross misconduct as alleged by the appellants, is clearly spelt out in Section 17 of the Federal Polytechnics Act and that procedure must be strictly followed and applied. Where a statute regulating the relationship of a master and servant stipulates a particular method for disciplining a servant, the procedure must be followed by the master. See OBAFEMI AWOLOWO UNIVERSITY V. DR. A. K. ONABANJO (1991) 5 NWLR (PT. 193) 549 and OLANIYAN V. UNIVERSITY OF LAGOS (No.2) (1985) 2 NWLR (PT.9) 599.” Per ADUMEIN, J.C.A. (Pp. 18-22, paras. G-A)

The claimant by his evidence; – Exhibit C10 and the enabling law have identified the body that can discipline him as the Governing Council. In this suit it is the claimants case and the defendants did not dispute that as at the time of the disciplining the claimant there was in fact no Governing Council in place. This gave rise to the issue raised by the court suo moto as to the existence of any law. convention or protocol under which any person or organizations is entitled to act on behalf of the Governing Council
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 HOSPITAL delivered 3^rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3^rd March 2017’.

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

This Court has had cause to consider similar circumstances 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 HOSPITAL delivered 3^rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3^rd March 2017’.

The defendant by not conforming with the provisions of Section 17 of the Act in that they acted without a Governing council having truncated the entire disciplinary structure, the claimants employment requires strict observance and this has not been done. The lack of compliance with due process in law violates the entire procedure as it was unconstitutional and a deviation from the proper procedure,
The claimant has proved his case and has also proved that he is entitled to his reliefs. I resolve both of the defendants issues against the defendant. And find for the Claimant.

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

The judgement of this court is as follows; –

It is hereby declared that the letter of termination dated the 1st December 2016 issued by the Defendants to the Claimant terminating him from the employment and of the 3 Defendant not being authorized or a product of the Governing Council of the 3rd Defendant is a nullity ab initio and it is therefore ineffectual to terminate the Claimant’s employment with the 3rd Defendant.

It is hereby declared that arising from the aforesaid the Claimant is still in the employ of the 3 Defendant.

iii. It is hereby declared that the Claimant’s employment with the 3rd Defendant cannot lawfully be terminated 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 of the 3rd Defendant as enshrined in the Regulation Governing the Senior Staff of the Polytechnic made pursuant to the Federal Polytechnic Act.

It is hereby declared that the Ad-Hoc committee set up by the 3rd Defendant lacks the vires/power to try the Claimant for an alleged misconduct as contained in the Federal Polytechnic Staff Manual and the Federal Polytechnic Act as well as recommend the termination of his employment with the 3rd Defendant.

It is hereby declared the purported termination on the Claimant’s employment on the basis of the report of an Ad-Hoc ‘fact finding’ Committee set up by the 3rd Defendant is unlawful, illegal and unconstitutional because the entire process violated his right to fair hearing.

It is hereby declared that the 4th Defendant lacks the power/vires to unilaterally order the 1^st and 3rd Defendant to terminate the Claimant from the employment of the 3rd Defendant because such powers are exclusively reserved for the Governing Council of the 3rd Defendant by the Federal Polytechnic Act

vii. It is hereby ordered that the Defendants shall forthwith reinstate and/or restore the Claimant to his post at Auchi Polytechnic, Auchi with all his rights, entitlements and other prerequisites of him office.

viii. It is hereby ordered that the Defendants to pay to the Claimant all his salaries and allowance from 1^st of December, 2016 till the day of Judgment and henceforth.