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National Industrial Court

Mr. Christopher Igbedion Esekhaigbe -VS- The Honourable

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 3RD JULY 2019                                          SUIT N0: NICN/ABJ/451/2016

 

BETWEEN

MR CHRISTOPHER AIGBEDION ESEKHAIGBE      ………            CLAIMANT

AND

  1. THE HON. MINISTER FOR EDUCATION
  2. FEDERAL MINISTRY OF EDUCATION
  3. THE EXECUTIVE SECRETARY NBTE
  4. NATIONAL BOARD FOR TECHNICAL EDUCATION……       DEFENDANTS

5 THE RECTOR, AUCHI POLYTECHNIC, AUCHI LEFENTAN

  1. THE REGISTRAR, AUCHI POLYTECHNIC, AUCHI
  2. AUCHI POLYTECHNIC, AUCHI

REPRESENTATION

  1. T. AFALIOKHAI for the Claimant
  2. Y. MUSA for the Defendant

JUDGEMENT

  1.             The claimant, by a General Form of Complaint with the accompanying frontloaded documents filed on 13th December, 2016, approached the Court for the following reliefs:

  1. A DECLARATION that Ad-Hoc committee set up by the 5th — 7th Defendants in the absence of a Governing Council of Auchi Polytechnic is ultra vires the powers of the Defendants and therefore illegal, null and void.

  1. A DECLARATION that any decision reached in the Ad-Hoc committee to investigate the scandalous publication on Auchi polytechnic Auchi not having been constituted by the Governing Council of the 31 Defendant is illegal, null and void.

  1. A DECLARATION that the Ad-Hoc committee set up to investigate the scandalous publication on Auchi polytechnic, Auchi breached the Claimant’s Right to Fair Hearing and renders its decisions regarding the Claimant null and void.

  1. A DELARATION that the letter of query dated the 8th day of June with Reference No. PC/PH. 4929/T1 issued to the claimant based on the report of the Ad-Hoc committee set up by the 5th — 7th Defendant was irregularly issued and therefore null and void and should be set aside.

  1. A DECLARATION that the Claimant being an academic staff of the 7th Defendant can only be disciplined and removed on the directives of the Governing Council of the 7th Defendant.

  1. A DECLARATION that the termination of the Claimant’s employment with the 7th Defendant on the instruction and directive of the 1st — 4th Defendants was wrongful, ultra vires their powers and in breach of Section 17 of the Federal Polytechnic Act, therefore null and void.

  1. AN ODER directing the reinstatement of the Claimant to his employment with full salaries, benefits, promotions and all other entitlements from the date of the purported termination restraining the Defendants from carrying out any disciplinary action against the claimant based on the report of the Ad-Hoc committee set up by the 1st and 2nd Defendants.

  1. AN ORDER restraining the Defendants from thenceforth from disciplining the Claimant in connection with the subject of the said publication.

  1. AN ORDER for the payment to the Claimant the sum of N5, 000,000.00 (Five Million Naira) as damages for the suffering and stigma the Defendants subjected the Claimant to as a result of their said acts.

Claimant’s Case

  1.             The claimant was a lecturer in the department of Statistics of the 7th defendant. Following the publication in the Punch newspaper of Saturday April 9th, 2016, titled “School where prostitutes assist male students to get marks” the 5th defendant set up an Ad-Hoc committee on the slanderous publication against Auchi Polytechnic, Auchi. The claimant was invited to that Ad-Hoc committee as a witness on the 20th day of April, 2016 to investigate the scandalous publication of 9th April, 2016 against the 7th Defendant.

  1.             On the 8th day of June, 2016, the 6th defendant issued the claimant a query, based on the allegation that the claimant was involved in extorting money from students through an agent (Theophilus Ayobo) of which the Claimant answered the query and demanded to be confronted with the said Theophilus as witness before the Ad-Hoc Committee or any student whose money is claimed to have been extorted by him so as to give him the opportunity to meet his accusers. The 6th defendant upon receipt of the reply to query issued the claimant with a letter of dismissal on the directive of the 1st defendant without indicating to the Claimant that his answer to the query was unsatisfactory, nor ever giving the Claimant an opportunity to meet with his accuser for possible cross examination and again, without any impute from the governing council which at any rate was not constituted at the time the letter of dismissal was issued.

  1.             It is the letter of dismissal issued to the claimant without the authority of the governing council and the denial of his right to be fairly heard by making representation to the council as specified under the Federal Polytechnic Act, 2004 and Federal Polytechnic Staff Manual, 1990 that has led the claimant to challenge his dismissal as ultra vires the powers of the Minister and visitor to the Auchi, Polytechnic, Auchi and therefore unlawful.

5TH – 7Th DEFENDANTS’ JOINT STATEMENT OF DEFENCE filed on 18th January, 2017.

  1.             In answer to paragraphs 16, 17, 18, 19, 20 and 22 of the statement of facts, the 5th — 7th Defendants averred that there is no faction in the Academic Staff Union of Polytechnics (ASUP), Auchi Polytechnic chapter. And that the 5th Defendant does not belong to any faction of Academic Staff Union of Polytechnics, (ASUP), Auchi Polytechnic chapter as there is only one recognised Union.

  1.             Reacting to paragraphs 15 and 23 of the statement of facts, the 5th — 7th Defendants stated that the Claimant’s name was indeed mentioned and linked to the scandalous publication before he was invited by the ad hoc investigative committee set up by the management of the 7th Defendant.

  1.             In response to paragraph 15 of the statement of facts, the 5th — 7th Defendants maintain that the Claimant appeared before the Committee to present his case without any complaint against the constitution or legality of the Committee; that he was afforded ample opportunity to present his case, which he utilised.

  1.             Defendants stated further that the Ad hoc Investigative Committee constituted to investigate the scandalous Punch Newspaper publication against the 7th Defendant is not the Disciplinary Committee envisaged by the Federal Polytechnic Staff Manual, the Federal Polytechnics Act and the Auchi Polytechnic Law, 1976; of which the said Ad hoc Investigative Committee was a mere fact finding Committee, which was constituted to investigate the grave allegations made against the 3rd Defendant in the newspaper publication.

  1.             In answer to paragraph 27 of the statement of facts, the 5th — 7th Defendants stated that whilst it is true that the Claimant wrote a protest letter, the Claimant never received any verbal warning from any staff of the 7th Defendant or management team or from any member of the ad hoc committee which had already submitted its report as at the time the query was written.

  1.             In answer to paragraph 32 of the statement of facts, the 5th — 7th Defendants state that the query issued to the Claimant was not in breach of the Federal Polytechnic Act as erroneously alleged by the Claimant. And 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.             Responding to paragraph 18 of the statement of facts, the 5th — 7th Defendants stated that the Claimant’s case, which relates to the scandalous publication of 9th April, 2016 in Punch Newspaper has no bearing with the purported list of demands by Joint Unions of NASU, ASUP and SSANIP, Auchi Polytechnic, Auchi.

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

REPLY TO STATEMENT OF DEFENCE filed on 23rd May, 2017.

  1.             Claimant averred in reply to paragraphs 4 & 5 of the 5th — 7th Defendants’ Statement of Defence that the division and/or faction in ASUP, Auchi Polytechnic Chapter was previously litigated upon before this Honourable Court in Suit NO.NICN/ABJ/21/2009: ASUP, AUCHI POLYTECHNIC CHAPTER & 3 ORS VS. ASUP & 8 ORS.
  2.             That currently and pending is Suit No. NICN/ABJ/7912016: DR. M. A. OBOMEGHIE & 4 ORS. VS. ENGR. ISAH ABDULAZEEZ & 6 ORS. Of which he urged this Honourable Court to take Judicial Notice of the existence of Suit No. NICN/ABJ/79/2016: DR. M. A. OBOMEGHIE & 4 ORS. VS. ENGR. ISAH ABDULAZEEZ & 6 ORS.

 

  1.             The Claimant further stated that at the hearing of this suit, he shall urge upon the court to take Judicial Notice of the method of investigation of EFCC & DSS.

 

  1.             On the application of parties this suit was consolidated  with NICN ABJ 452 2016  and the  following procedure was adopted; – court took evidence from both claimants separately Cw1  and Cw2 thereafter  the defendants called one witness in response to both suits, and the court would render separate judgements.

  1.             At the trial the Claimant testified as CW2 adopted his witness statements on oath of 13th December 2016 and 23rd May 2017 which were marked as C14 and C15 respectively. The Claimant tendered eleven other documents which were all duly marked C16- C25. He was cross examined by the Counsel to the 5th -7th Defendant. The defendants called one witness a Dr. E Ihionkhan, the Deputy Registrar of the 2nd defendant, who testified as Dw he adopted is written statement on oath of 29th November 2018 which was marked D1and was thereafter cross examined by the Claimants counsel. Thereafter the matter was adjourned with the Court’s direction for adoption of final written addresses.

5TH – 7TH DEFENDANT’S FINAL WRITTEN ADDRESS filed on 27th December, 2018.

 

ISSUES

  1. Whether the setting up of the Ad-hoc Committee and the issuance of query to the Claimant by the management of the 7th Defendant following the scandalous Punch publication of 9th April, 2016 was not             lawful.

  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 7th Defendant was not lawful and justified in law,

  1. Whether the termination of the Claimant’s appointment by the management of the 7th Defendant is not in accordance with the            terms of the agreement between the parties.

 

ON ISSUE 1

Whether the setting up of the Ad-hoc Committee and the issuance of query to the Claimant by the management of the 7th Defendant following the scandalous Punch publication of 9th April, 2016 was not lawful.

 

  1.             Learned Counsel submitted that a material piece of fact adduced in evidence by a party, which is not particularly denied by the adverse party must be taken as admitted as same is no longer a fact in issue before the court. Mohammed & Anor v. State (20O7) 11 NWLR (Pt. 1045,) 303 at 323-324 paras H-A, per Tabal, JSC; Akudo v. Guinness Nigeria Plc. (2012) 15 NWLR (Pt. 1322) 150; Olowoofoyeku v. Olowoofoyeku (2011) 1 NWLR (Pt. 1227) 177 at 202-203 Paras F-A.

 

  1.             He argued further that a party who has the opportunity to challenge a piece of evidence under cross — examination but failed to do so must be taken to have admitted that material piece of evidence adduced by his adversary. Isah v. State (2017) LPELR-43272 (SC) at 18-19, per Rhodes- Vivour, JSC; Cameroon Airlines v. Otutuizu (2011,) 4 NWLR (Pt. 1238) 512 at 545 paras A-B; Amadi v. Nwosu (1992) LPELR-442 (SC); (1992) 5 NWLR (Pt. 241) 273.

 

  1.             Counsel contended that a query is not discipline in itself but it is only an avenue for an employer to get explanation from an employee on an issue before further steps are taken by the employer. Maphen v. UNIJOS Consultancy Ltd (2013) LPELR — 21904 (CA) 19 Paras D — F; per Bdliya, JCA.

 

  1.             Furthermore, that query is not in itself a disciplinary measure but it is a usual or normal procedure which affords the employee the privilege to explain certain things before disciplinary procedure is set in motion. Maphen v. UNIJOS Consultancy Ltd (supra) at 21 paragraphs D — F, per Bdliya, JCA.

 

ON ISSUE 2

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 7th Defendant was not lawful and justified in law.

 

  1.             Learned Counsel posited that Claimant cannot enjoy the exercise of power to effect his promotion by the 1st Defendant and turn around to challenge the termination of his appointment by the management of the 7th Defendant on the directive of the 1st Defendant, as Parties are not allowed to approbate and reprobate at the same time. Intercontinental Bank Ltd v. Brifina Ltd (2O12)13 NWLR (Pt. 1316) 1 at 22 para H, per Nwguta, JSC; Donald v. Saleh (2015) 2 NWLR (Pt. 1444) 529 at 585.

 

  1.             Counsel noted that the Claimant’s complaint before the Court is failure to be arraigned and tried by the Governing Council and the Joint Committee of Council and Academic Board of the 7th Defendant, as the Claimant never complained of being denied fair hearing by the Ad-Hoc Committee in his protest letter vide Exhibit C24. That the Claimant’s protest letter vide Exhibit C24 only came after the Claimant had appeared before the Ad — hoc Committee, and after he has been issued with Exhibit C22 and reply to same vide Exhibit C23. Therefore, it follows that Claimant is deemed to have admitted the fairness of the investigative activities of the Ad-hoc Committee as it is settled principle of law that fact admitted or deemed admitted requires no further proof. Al – Hassan v Ishaku (2016)10 NWLR (Pt. 1520) 230 at 299 paras B — C, per Sanusi, JSC; Ntuks v NPA (2007) 13 NWLR (Pt. 1051) 392 at 420 paras D — E, per Tobi, JSC; Prof Theophilus Adelodun Okin & Anor v. Mrs. Agnes Iyeba 0km (2016) LPELR — 41165, per Onyemenam, JCA at pages 12 — 13, paras E — A; Egbunike v. A. C.B. Ltd. (1995) 12 NWLR (Pt. 375) 34; Efet v. INEC (2011) 7 NWLR 423.

 

  1.             Counsel 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 and the court cannot compel the performance of the impossible. That this is 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.

 

  1.             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 7th Defendant’s staff 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 7th Defendant. S. D. Construction Co. Ltd v Chief Bayo Ayoku & Anor (2011) LPELR — 2965 (SC) p. 21 paras E — F, per Fabiyi, JSC; Nnaji Auwalu Darma v Eco Bank Nig Ltd (2007) LPELR — 41663 (SC) Pp. 18—l9, paras. A—D.

 

  1.             Counsel submitted 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 7th Defendant can exercise disciplinary power to terminate the appointment of a staff of the 7th 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)

 

ON ISSUE 3

Whether the termination of the Claimant’s appointment by the management of the 7th Defendant is not in accordance with the terms of the agreement between the parties.

  1.             Counsel submitted that, from the clear and unambiguous words of Exhibit C16, the termination of the Claimant’s employment by the management of the 7th Defendant is in accordance with the agreement between the Claimant and the 7th Defendant. And that once parties have reduced their agreement into writing, both the court and the parties are bound by the terms of the contract and 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 at369paras C—E.
  2.             He contended that the only requirement for the 7th Defendant to terminate the Claimant’s appointment in line with Exhibit C16 is the giving of notice or payment of salary in lieu of notice. And that by Exhibit C25, the termination letter issued to the Claimant, the Claimant was requested to proceed to the Bursary department of the 7th Defendant to collect his three months’ salary in lieu of notice in compliance with Exhibit C16 and standard practice in public service.

  1.             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-Yusuf JCA.

 

CLAIMANT’S FINAL WRITTEN ADDRESS filed on 5th February, 2019.

ISSUES

  1. Whether the claimant was accorded a fair hearing by the defendants all through the           process that culminates to the determination of his appointment with the 7th            Defendant.

  1. Whether the defendants complied with section 17 of the federal polytechnic act    and paragraph 8.4 of the federal polytechnic staff manual 1990 in dismissing the   claimant from his employment. If the answers to the above issues are in the       negative,

  1. Whether the claimant is not entitled to reinstatement to his position and his salaries            and allowances as Chief Lecturer.

 

ON ISSUES 1 & 2

Whether the claimant was accorded a fair hearing by the defendants all through the process that culminates to the determination of his appointment with the 7th Defendant.

 

Whether the defendants complied with section 17 of the federal polytechnic act and paragraph 8.4 of the federal polytechnic staff manual 1990 in dismissing the claimant from his employment. If the answers to the above issues are in the negative.

 

  1.             Learned Counsel submitted that where an employee complains that his employment has been wrongfully terminated, the onus is on him to prove in what manner the terms of his employment have be breached and by whom he can be removed. NIMASA VS. ODEY (2014) WRN PAGE 83 AT 92 R. 9; ZHDEEH VS. RSCS (2007)14 WRN PAGE 81 AT 88 R. 4.

 

  1.             Counsel submitted that both from documentary evidence and oral evidence before this court, the Claimant’s employment with the 7th defendant enjoys statutory flavor 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 (20 10) 6 NWLR (Pt. 1191) Pg. 423 @ 450 Paras H, 451, Paras. E-F.

 

  1.             Furthermore, that in the determination of the employment with statutory flavor, and the question arises as to whether an employment has been lawfully determined; it is the contract between the parties that the court must look into for direction. NATIONAL UNION OF HOTELS AND PERSONAL SERVICES WORKERS VS. PINK PEACOCK RESTURANT, KANO DJNIC (1978-2006) PAGE 281 AT 282 R. 1.

 

  1.             He posited that Section 17 of Federal Polytechnic Act, Cap f17 has further been given judicial interpretation in series of cases. KWARA STATE POLYTECHNIC VS. SHILTU (2013) 17 WRN PG. 78 AT 84 R. 5.

 

  1.             It is counsel’s submission that in the Determination of a contract governed with statutory flavor, the statute regulating the employment must be strictly complied with. AYORINDE V. OYO STATE GOVERNMENT (2007) All FWLR PT 356 PG 709 @ 723 Para. A-E.

 

  1.             Counsel submitted that what the Respondents did by dismissing the employment of the Applicant was ultra vires their powers and ought to be set aside and that in a similar case where the Inspector General of Police usurped the power of discipline of Police Officers vested in the Police Service Commission, His Lordship, Pasts-Acholonu, JCA, in OZOAMA V. POLICE SERVICE COMMISSION, (1995) 4 NWLR (PT.39) 629 AT 638 came heavily down on the Inspector General of Police when he remarked as follows:

The dismissal of a senior officer must be made in a manner that is in accordance with civilized behavior. The inspector general of police ought not to have attempted to appropriate powers that are duly vested in the commission in the purported exercise of disciplinary action.

 

  1.             He submitted that compliance with the statutory procedure for termination or dismissal of employment is mandatory and where the procedure as outlined by the statute are not followed, even where it is established that the Employee committed a dismissible act or misconduct, the Court will set aside the dismissal. OLATUNBOSUN VS NISER (1998) 3 NWLR PART 80 PAGE 25; RAGI V. UNIV. OF IJNILORIN (SUPRA) PG.5729 R.1.

 

  1.             Counsel contended that in keeping with this Constitutional right of the employees in the determination of their Civil rights and Obligations in the 7th Defendant, Section 17 (1) (a) — (c) of the Federal Polytechnics Act Cap.F17, Laws of the Federation, 2004 re-enacted procedures to be adopted by the Governing Council to ensure fair hearing. And that this mandatory constitutional provision and the Federal Polytechnics Act were clearly breached by the Respondents in dismissing the Applicant’s employment for the following ways:

(a)    No Governing Council put in place;

(b)    No Joint Committee of Council and Academic Board put in place (to try the Applicant);

(c)    No Notice to appear before the Investigating Committee of the Council to defend the allegation;

(d)   No opportunity was afforded the Claimant to meet with his accusers or any witness or called any.

  1.             Therefore, that the absence of all of these was a clear breach of the Applicant’s right to fair hearing and that the rule of fair hearing is not a technical doctrine that can be waived, it is a rule of substance. ONYIA VS. THE STATE, VOL. 4 ACLR; AKINTOLA V. OYO STATE SPORT COUNCIL (2006) 42 WRN, PG. 185 R. 7.

 

  1.             Furthermore, that whatever the investigation the Ad-hoc Committee did in relation to the allegation against Claimant ought to be a report to be presented to the Governing Council for their response. JAMES ISEDE ESQ. VS. JUDICIAL SERVICE COMMISSION, EDO STATE & ANOR. (SUIT No. FHC/B1CS17112004 unreported) delivered on 1/12/2011.

 

ON ISSUE 3

Whether the claimant is not entitled to reinstatement to his position and his salaries and allowances as Chief Lecturer.

  1.             Learned Counsel posited that where an employment that is protected by statutes is unlawfully terminated, the remedy is to declare such an act null and void and reinstate the employee. NATIONAL UNION OF FOOD, BEVERAGE AND TOBACCO EMPLOYEE V. COCOA INDUSTRIES LTD Digest of Judgment of National Industrial Court (1979-2006) page 486 @ 488 R. 2; OMIDIORA V. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415)1807.

 

  1.             On the 24th March 2019 parties adopted their final written address, respectively adumbrated their respective position and the 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 are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.

  1.             The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought in this suit, the reliefs sought in this suit are as follows :-

  1. A DECLARATION that Ad-Hoc committee set up by the 5th — 7th Defendants in the absence of a Governing Council of Auchi Polytechnic is ultra vires the powers of the Defendants and therefore illegal, null and void.

  1. A DECLARATION that any decision reached in the Ad-Hoc committee to investigate the scandalous publication on Auchi polytechnic Auchi not having been constituted by the Governing Council of the 31 Defendant is illegal, null and void.

  1. A DECLARATION that the Ad-Hoc committee set up to investigate the scandalous publication on Auchi polytechnic, Auchi breached the Claimant’s Right to Fair Hearing and renders its decisions regarding the Claimant null and void.

  1. A DELARATION that the letter of query dated the 8th day of June with Reference No. PC/PH. 4929/T1 issued to the claimant based on the report of the Ad-Hoc committee set up by the 5th — 7th Defendant was irregularly issued and therefore null and void and should be set aside.

  1. A DECLARATION that the Claimant being an academic staff of the 7th Defendant can only be disciplined and removed on the directives of the Governing Council of the 7th Defendant.

  1. A DECLARATION that the termination of the Claimant’s employment with the 7th Defendant on the instruction and directive of the 1st — 4th Defendants was wrongful, ultra vires their powers and in breach of Section 17 of the Federal Polytechnic Act, therefore null and void.

  1. AN ODER directing the reinstatement of the Claimant to his employment with full salaries, benefits, promotions and all other entitlements from the date of the purported termination restraining the Defendants from carrying out any disciplinary action against the claimant based on the report of the Ad-Hoc committee set up by the 1st and 2nd Defendants.

  1. AN ORDER restraining the Defendants from thenceforth from disciplining the Claimant in connection with the subject of the said publication.

  1. AN ORDER for the payment to the Claimant the sum of N5, 000,000.00 (Five Million Naira) as damages for the suffering and stigma the Defendants subjected the Claimant to as a result of their said acts.

  1.             Reliefs (a) – (f) are for declarations  and or pronouncements : – as to the validity of the Letter of termination dated 1st December 2016 issued to the claimant (Relief (a), the status and powers of the ad hoc committee, (Relief (b)) as to the propriety, legal validity and competence of the said ad hoc committees activity (Relief (c)) as to whether the actions of the ad hoc committee where in breach of the claimant’s Fundamental Human rights  Propriety and competence of the ad hoc committee to try the claimant (Relief (d)) as to the validity of the letter of query issued the claimant  (Relief (e) as to who can validly remove the claimant (Relief (f) the legality of the said termination (Relief (g) an order for reinstatement ), (Relief (h)) or an order or damages.

  1.             Relief f is tantamount to a gag order. See SUIT NO. NIC/LA/117/2011 Mr. Babatunde Ogunsowo Vs. Dana Motors Limited delivered 10th July 2013 where it was held that such “reliefs are actually outside of the competence of this Court to grant. This Court cannot by an injunction gag an employer from disciplining an employee where the need arises; and regarding the prayer for the defendant not to harass, arrest or intimidate the claimant, this is also, without more, outside of the jurisdiction of this Court. This Court cannot gag the process of the administration of justice or due process in the manner prayed for by the claimant in relief c) and more particularly in relief d). The law generally recognises the right of an employer to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. See NEPA V. OLAGUNJU [2005] 3 NWLR (PT. 913) 602. Indeed, as held in SHELL PET. DEV. CO. (NIG.) LTD V. OMU [1998] 9 NWLR (PT. 567) 672.”
  2.             The law is trite that reliefs g and h are incompatible and are considered double compensation, where a court grants reinstatement the claimant cannot be granted his claim for damages. See IFETA V. S.P.D.C NIG LTD (2006) 8 NWLR (PT.983) 58

  1.             In order to properly determine the claimant’s relief it is necessary to ascertain the nature of the Claimants employment.

In support of his claim the claimant tendered Letter of Appointment (10/8/1998) marked C 2,  Letter of Confirmation 13/08/2001 marked C3, Letter of Promotion of 11/6/2012 marked C4 as indication of his appointment and the nature of the employment. The claimant also tendered his Letter of Termination of Appointment dated 1/12/2016 Marked C11 as evidence of his contract of service, the terms of his contract and who is empowered to remove him.

  1.             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.

 

  1.             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.

  1.             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 made pursuant to the Federal Polytechnic Act. See  DEMSHEMINO V. COUNCIL FEDERAL POLYTECHNIC MUBI & ANOR (2013) LPELR-20845(CA)

  1.             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”

  1.             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.

  1.             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.

 

  1.             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.

  1.             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)

  1.             The claimant’s case is that the statutory provisions stating the way and means the Claimants employment must be determined are notably Section 17 of the Federal Polytechnic Act Cap E4 laws of the Federation 2004 a Law of the Federal Republic of Nigeria of which this court takes judicial notice.

 

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 –
  4.       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
  5.       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.             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:
  2. The Council shall give notice of the reasons to the affected academic staff;
  3. The Council shall afford him, the person affected, an opportunity of making representations on the matter; and
  4. 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.

  1.             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.

 

  1.             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)

  1.             The claimant by his evidence; – and the enabling law  has 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.

  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 HOSPITAL delivered 3rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3rd March 2017’.

  1.             In a statutory employment the rules laid down for performing a function must be strictly complied with to the letter. I find. And that was not done in this case I hold

  1.             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 3rd March 2017 and SUIT NO: NICN/CA/59/2015 COMFORT EKPENYONG EDET Vs. UNIVERSITY OF CALABAR TEACHING HOSPITAL delivered 3rd March 2017’.

 

  1.             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. All the arguments of the defendants as to the role of a Visitor, the fact that the council did not promote the claimant and the fact of the management ratify the said termination are all of no moment as when the proper thing is not done in the proper way the action of the defendant is incurably bad. 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, barring relief I and as discussed above.

 

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

 

  1. IT IS HEREBY DECLARED that Ad-Hoc committee set up by the 5th — 7th Defendants in the absence of a Governing Council of Auchi Polytechnic is ultra vires the powers of the Defendants and therefore illegal, null and void.

  1. IT IS HEREBY DECLARED that any decision reached in the Ad-Hoc committee to investigate the scandalous publication on Auchi polytechnic Auchi not having been constituted by the Governing Council of the 31 Defendant is illegal, null and void.

  1. IT IS HEREBY DECLARED that the Ad-Hoc committee set up to investigate the scandalous publication on Auchi polytechnic, Auchi breached the Claimant’s Right to Fair Hearing and renders its decisions regarding the Claimant null and void.

  1. IT IS HEREBY DECLARED that the letter of query dated the 8th day of June with Reference No. PC/PH. 4929/T1 issued to the claimant based on the report of the Ad-Hoc committee set up by the 5th — 7th Defendant was irregularly issued and therefore null and void and should be set aside.

  1. IT IS HEREBY DECLARED that the Claimant being an academic staff of the 7th Defendant can only be disciplined and removed on the directives of the Governing Council of the 7th Defendant.

  1. IT IS HEREBY DECLARED that the termination of the Claimant’s employment with the 7th Defendant on the instruction and directive of the 1st — 4th Defendants was wrongful, ultra vires their powers and in breach of Section 17 of the Federal Polytechnic Act, therefore null and void.

  1. BY ORDER OF THIS COURT the Claimant is hereby reinstated to his employment with full salaries, benefits, promotions and all other entitlements from the date of the illegal termination furthermore the Defendants are also hereby restrained from carrying out any disciplinary action against the claimant based on the report of the Ad-Hoc committee set up by the 1st and 2nd Defendants.

  1.             I make no order as to cost,

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

…………………………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE.

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