Mr. Thompson Tom Ikpe -VS- Akwa Ibom State University & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: 11^TH JUNE, 2019 SUIT NO: NICN/CA/44/2012

BETWEEN

MR THOMPSON TOM IKPE ……… CLAIMANT

AND

AKWA IBOM STATE UNIVERSITY
PROF. SUNDAY PETERS DEFENDANTS

(VICE Chancellor)

AKWA IBOM STATE GOVERNMENT

REPRESENTATIONS

ANTHONY AKPAN Esq. for the Claimant
UFORO AMBROSE U. Esq. for the 1^st and 3^rdDefendant
EMEM UYIRE Esq. for the 3^rd Defendant

JUDGMENT

INTRODUCTION

This suit was initially instituted at the High Court, Uyo Division, was subsequently transferred to this Court on 13^th June, 2012.

By an amended Statement of Facts dated 5^th May, 2016, the Claimant seeks the following reliefs:

A DECLARATION that the letter of the Honourable Commission of Education dated 12^th June, 2008 was a valid directive from the 3^rd Defendant on the issue of Claimant’s employment, which must be complied with by the Defendants

A DECLARATION that the purported removal of the Claimant from office as per the letter dated 3^rd June, 2008 and the procedure adopted by the Defendants were irregular, invalid, null and void and contrary to the statute establishing the 1^st Defendant and the principle of natural justice.

Immediate reinstatement of the Claimant with all financial entitlements, promotion and allowances from 3^rd June, 2008 till date

OR IN THE ALTERNATIVE:

The sum 0f N500,000,000.00 (Five Hundred Million Naira) damages for the wrongful removal from office as a deputy director of administration.

SUMMARY OF FACTS

The Claimant, as can be gleaned from his Statement of Facts, was initially employed by the University of Calabar but had his employment transferred to the Akwa Ibom State University of Technology some time in 2005 on its take-off. On being employed as a Deputy Director, he was later upgraded to the status of Acting Director by the management of the Akwa Ibom State University of Technology. However, sometime in 2008, the then Honourable Commissioner for Information to the government of Akwa Ibom State, by an announcement made on radio, directed that all principal officers of the Akwa Ibom State University of Technology be removed. Acting on this, the then acting Vice Chancellor issues letters of removal of office to all affected principal officers including the Claimant which by extension led to the termination of the appointment of the Claimant with the institution. The Claimant is herein in Court challenging his removal from office and by extension, the unlawful termination of his appointment.

On their part, the 1^st and 2^nd Defendants, while not denying that the Claimant was employed by the Akwa Ibom State University of Technology, stated however that Akwa Ibom State University is not one and same with the 1^st Defendant herein. That the removal of the Claimant only affected his position as acting Director and not as a Deputy Director. That it was the Claimant who stopped coming to work on being removed as an acting Director.

On the part of the 3^rd Defendant, she stated that the Claimant is not a staff of the 3^rd Defendant. The 1^st Defendant is an independent entity which runs its activities without interference from the 3^rd Defendant. Furthermore, the Claimant is not entitled to any relief(s) from the 3^rd Defendant.

It must be noted that the Claimant filed a reply to 1^st and 2^nd Defendants’ statement of defence.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 24^th of November, 2016 to which the Claimant testified as CW1, adopted his witness statement on oath, tendered documents in evidence and was cross examined accordingly. Thereafter, Claimant closed his case on the 28^th of November, 2017.

On their part, the 1^st and 2^nd Defendants opened their defence on the 13^th of March, 2018 by calling one Raphael Nicolas as DW1. He adopted his witness statement on oath, gave evidence on behalf of the 1^st and 2^nd Defendants and was also cross examined accordingly. Thereafter, the 1^st and 2^nd Defendants closed their defence on the 5^th of June, 2018.

On the part of the 3^rd Defendant, she opened her defence on the 5^th of June, 2018 by calling one Ukpongette Etim Ebek as DW2 whom adopted his? Witness statement on oath, gave evidence on behalf of the 3^rd Defendant and was cross examined accordingly. Thereafter, 3^rd Defendant closed her defence.

Subsequently, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

3^RD DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s final written address dated October, 2018 and filed 9^th October, 2018, Counsel on behalf of 3^rdDefendants formulated two (2) issues for determination, that is:

Whether having regard to the processes filed by the Claimant in this suit and the evidence adduced, there exists any cause of action against the 3^rd Defendant who is just a shareholder in the 2^nd Defendant.

Whether the Court can strike out the name of the 3^rd Defendant from this suit for not being proper, desirable or necessary party capable of being sued.

ARGUMENT

ON ISSUE 1:

Learned Counsel that the 1^st Defendant a separate entity from its owner. He relied on Section 38 of the Company and Allied Matters Act, 2004 that a company is a separate legal entity from its owner from the date of incorporation. Hence, it has the capacity to enter into legal agreement with anybody; has the capacity to sue and be sued in its own name. That the 3^rd Defendant is the owner of the 1^st Defendant, however, no matter the number of shares owned by the 3^rd Defendant in the 1^st Defendant, 3^rd Defendant cannot be held liable for any act committed by the 1^st Defendant. He relied on Ashibuogu V. Attorney General of Bendel State (1988) NWLR (Pt.69) P.138. Learned Counsel submitted that it was held in the aforementioned case that a government owned limited liability company possesses a legal personality of its own. It can sue and be sued in its own name. Its shareholders, even if the major or sole shareholder is the federal government, cannot be sued for debt incurred by the company.

Learned Counsel submitted further that in the case herein, the Claimant’s case discloses no cause of action against the 3^rd Defendant. That in the determination of a cause of action, it is the Writ and the totality of the averments made thereat that are considered. He relied on Onadeko V. U.B.N (2005) 4NWLR (Pt.916) P.440 @460 Paras B-C; Omomeji V. Kolawole (2008) 14NWLR (Pt.1106) P.180 @205 Paras C-E.

It is the submission of Learned Counsel to the 3^rd Defendant that in the case herein, no mention is made of the 3^rd Defendant or what she did to warrant being joined as a party in this suit.

He therefore urged the Court to strike out the name of the 3^rd Defendant being that there is no cause of action against the 3^rd Defendant.

ON ISSUE TWO : Whether the Court can strike out the name of the 3^rd Defendant from this suit for not being proper, desirable or necessary party capable of being sued.

Learned Counsel submitted that the suit herein having not disclosed a cause of action against the 3^rd Defendant, the Court can strike out the name of the 3^rd Defendant. He relied on the decision of the Court of Appeal, Abuja Division, in Ogbebo V. INEC (2005) 15NWLR (Pt. 948) P. 376 @399. On proper, desirable and necessary party, he relied on the decision of the Court in Green V. Green (1983) 3 NWLR (Pt. 61) P.480. He also referred Court to G.M Ent Ltd V. C.R Investment Ltd (2011) 14NWLR (Pt. 1266) P.125 @145 where the Court stated thus:

Proper parties are those who, though not actually interested in the claim, are joined as parties for good reasons. Desirable parties are those who have an interest in the suit or may be affected by the result thereof.

Necessary parties are those who not only have interest in the matter, but also in their absence, the proceedings could not be fairly dealt with. That is, the issue or question to be determined in the matter between the existing parties should be one which cannot be properly settled unless they are parties to the action.

It is the submission of Learned Counsel that the 3^rd Defendant herein is not a proper, desirable or necessary party in this suit hence the Court can strike out the name of the 3^rd Defendant from this suit.

1^ST AND 2^ND DEFENDANTS’ FINAL WRITTEN ADDRESS.

In 1^st and 2^nd Defendants’ final written address dated 12^th September, 2018 and filed 19^th September, 2018, Learned Counsel on behalf of 1^st and 2^nd Defendants formulated six (6) issues for determination, that is:

Whether the Claimant has shown sufficient evidence that he was employed by the 1^st Defendant.

Whether the letter of 3^rd June, 2018 was wrongful termination of the Claimant’s appointment.

Whether the Claimant was acting director hence principal officer at the time of letter of removal dated 3^rd June, 2008

Whether the position of acting director was statutory

Whether the letter of the Honourable Commissioner for Education was a valid directive to be complied with by the 2^nd Defendant

Whether the 1^st Defendant employed or removed the Claimant from office

ARGUMENT

ON ISSUE 1: Whether the Claimant has shown sufficient evidence that he was employed by the 1^st Defendant.

Learned Counsel to 1^st and 2^nd Defendant submitted that all the events stated by the Claimant happened before the end of 2008 while the 1^st Defendant came into existence in 2009 therefore the Claimant cannot benefit from a law which was not in existence the time the cause of action arose. The 1^st Defendant herein, Akwa Ibom State University is not same as the defunct Akwa Ibom State University of Technology.

It is the submission of Learned Counsel that it was not the 1^st Defendant that employed or removed the Claimant hence she cannot take responsibility for the claims of the Claimant.

He therefore urged the Court to so hold.

ON ISSUE 2: Whether the letter of 3^rd June, 2018 was wrongful termination of the Claimant’s appointment.

Learned Counsel submitted that in cases of wrongful termination of appointment it is the duty of the Claimant to prove that his employment has statutory flavour and the mode of termination was wrong in that it was not done in accordance with the provision of the law governing that employment. He relied on Opuo V. NNPC (2001) 14NWLR (Pt.734) 552; Obu V. NNPC (2003) 9WRN.

It is the submission of Learned Counsel that from the facts of this case, Claimant was employed as Deputy Director of Administrators and was upgraded to acting director, a position that no provided for in the Akwa Ibom State University of Technology law.

ON ISSUE 3: Whether the Claimant was acting director hence principal officer at the time of letter of removal dated 3^rd June, 2008

Learned Counsel submitted that being that as at the time of take-off, the Akwa Ibom State University of Technology did not have Deputy Vice Chancellors, the job of deputy vice Chancellor was therefore performed by the Claimant in his capacity as acting director. On principal officer, Learned Counsel argued that Claimant was treated as a principal officer in the University Manual tendered in evidence before this Honourable Court. Hence, Claimant is estopped from denying he is a principal officer having held out himself as a principal officer in the said Manual.

It is also the submission of Learned Counsel that the Claimant has failed to lay before this Court the terms of his employment to aid this Court in coming to a fair decision

ON ISSUE 4: Whether the position of acting director was statutory

Learned Counsel submitted that for an appointment to be statutory, it must be provided for in a statute.

It is the submission of Learned Counsel that there is no provision for the appointment of acting director in the Akwa Ibom State University of Technology law; the position is not statutory and as such, the Claimant can be removed from office without any notice or damages.

ON ISSUE 5: Whether the letter of the Honourable Commissioner for Education was a valid directive to be complied with by the 2^nd Defendant

Learned Counsel submitted that for the letter by the Honourable Commissioner for education to be valid, it must:

Have been served on the 2^nd Defendant
Have the authority of the Executive Governor to counter the earlier directive for removal
It must relate to the Claimants
The Honourable Commissioner must be the competent authority with powers to so direct the 2^nd Defendant.

Learned Counsel posited that none of the above conditions was fulfilled in the said letter by the Commissioner of Education. On the service of the letter on the 2^nd Defendant, Learned Counsel argued that Claimant must have intercepted the letter and stamped it received on behalf of the 2^nd Defendant since the Claimant was the deputy director of administration.

Furthermore, Learned Counsel urged the Court to hold that the 2^nd Defendant was not bound to act on the said letter coming from the Commissioner for Education when the supervisory ministry of the 1^st Defendant is not Ministry of Education but Ministry of Science and Technology.

ON ISSUE 6: Whether the 1^st Defendant employed or removed the Claimant from office

Learned Counsel submitted that the 1^st Defendant came into existence in 2009 long after the occurrence of the event of 3^rd June, 2008. It was the Akwa Ibom State University of Technology that employed and removed the Claimant and not the Akwa Ibo State University, the 1^st Defendant herein. The Claimant has failed to establish that Akwa Ibom State University of Technology is one and same with Akwa Ibom State University.

On whether the 3^rd Defendant is the owner of the Akwa Ibom State University of Technology, Learned Counsel submitted that the law enacting Akwa Ibom State University of Technology was made by the Akwa Ibom State House of Assembly. As such, it is the representatives of the 3^rd Defendant that supervise the University and constitute its governing Council. There is evidence that the 3^rd Defendant actually made an announcement on radio which was given effect to by the 2^nd Defendant. Therefore, the 3^rd Defendant set up the Akwa Ibom State University of Technology and closed it down and as such should be held responsible for any liability or damages done the Claimant.

In all, Learned Counsel urged the Court to dismiss this suit with a punitive cost of N500,000.00 in favour of the 1^st and 2^nd Defendants.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 29^th October, 2018 and filed 30^th October, 2018, Learned Counsel on behalf of the Claimant formulated three (3) issues for determination, that is:

Whether the letter by the Honourable Commissioner of education dated 12^th June, 2008 was not a valid directive from the state government on the subject matter which the Defendants ought to have complied with

Whether the removal of the Claimant in the circumstances of this case was proper

Whether the Claimant is not entitled to immediate reinstatement with all financial entitlements, promotion and allowances from 3^rd June, 2008 up till date

OR IN THE ALTERNATIVE

Whether the Claimant is not entitled to the payment of N500,000,000.00 damages for wrongful removal from office as deputy director.

ARGUMENT

ON ISSUE 1: Whether the letter by the Honourable Commissioner of education dated 12^th June, 2008 was not a valid directive from the state government on the subject matter which the Defendants ought to have complied with

Learned Counsel to Claimant submitted that Exhibit B2 which was written after due consultation with the secretary to the state government is the valid directive that the Defendants ought to comply with. He therefore urged the Court to give effect to the directive by making a consequential order on same. He relied on Inakoju V. Adelake (2007) 4NWLR (Pt.1025) 432 @495 where the Supreme Court stated:

A consequential order is one giving effect to a judgment or order duly prayed for. It is essentially one which would make the principal order effectual and effective or which necessarily follows as being incidental to the principal order. In other words, it is one which has a bearing with the main relief or reliefs claimed by the party. A consequential order can only relate to matters adjudicated upon.

It is the submission of Learned Counsel that being that the non-compliance with the directive of the commissioner of education that all parties should maintain the status quo is an issue in this suit, the Court can order compliance on the part of the Defendants.

ON ISSUE 2: Whether the removal of the Claimant in the circumstances of this case was proper

Learned Counsel submitted that by virtue of first schedule to the Akwa State University of Technology law, the principal officers are the Chancellor, pro chancellor, Vice Chancellor and deputy Vice Chancellor. Deputy Directors are not principal officers and as such, they are not expected to be affected by a directive removing all principal officers.

It is the submission of Learned Counsel that Defendants are bound by the substantive law and the applicable law as at the time the Claimant was removed is the Akwa Ibom State University law. He relied on Nwora V. Nwabueze (2013) 16NWLR (Pt. 1379) 1SC where it was held:

An action is governed by the substantive law applicable and in force at the time the cause of action arose.

It is also the submission of Learned Counsel that the change in the name of the 1^st Defendant is immaterial.

He therefore urged the Court to resolve this issue in favour of the Claimant.

ON ISSUE 3: Whether the Claimant is not entitled to immediate reinstatement with all financial entitlements, promotion and allowances from 3^rd June, 2008 up till date

OR IN THE ALTERNATIVE

Whether the Claimant is not entitled to the payment of N500,000,000.00 damages for wrongful removal from office as deputy director.

Learned Counsel submitted that being that the employment of the Claimant is one with statutory flavour, the Claimant is entitled to reinstatement or the alternative relief of N500,000,000.00 (Five Hundred Million Naira) as prayed in his reliefs.

COURT

Having gone through the Claimant’s case, Defendants’ defence, evidence adduced at trial and the final written submissions of Counsel to the Claimant as well as Counsel to Defendants, this Court, while adopting issues raised by both Counsel has distilled a sole issue for determination, to wit:

Whether the Claimant has proved his case to be entitled to the reliefs sought.

For starters, this Court wishes to state that having adopted issues raised by both Counsel in their final written addresses, the Court will address same, when necessary, in the body of its judgment.

Before going further on this judgment, the Court will like to state that in consideration of the preliminary issue raised by the Claimant in his final written address that the deponent (Raphael Ukeme) to 1^st and 2^nd Defendants did not sign the witness statement on oath, the Court has gone through its record to discover that the witness statement on oath in the Court record was actually signed by the deponent, Raphael Ukeme, and it is dated 30^th June, 2016. The law is trite that the record of the Court is superior and the Court is bound by its record. In this sense, the submission of the Claimant on this head is hereby discountenanced by this Honourable Court, and I so hold.

That said, the Court shall proceed to address the issue distilled above.

The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence by both parties on an imaginary scale to determine which side’s evidence is heavier and accordingly preponderates. The party whose evidence is heavier succeeds in the case. See Dr Useni Uwah & Anor V. Dr Edmundson T. Akpabio & Anor (2014) 2MJSC (Pt.11)108 @113. The success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. See Ramonu Rufai Apena & Anor V. Oba Fatai Aileru & Anor (2014) 6 – 7 MJSC (Pt.11)184 @ 188. Therefore, in determining this case, this Court will look at how well the Claimant has proved his case to be entitled to the reliefs sought.

On the position of the 1^st and 2^nd Defendants that the defunct Akwa Ibom State University of Technology is not one and same with the 1^st Defendant herein, that is Akwa Ibom State University, this Court wishes to state that the position of the Defendants is akin to saying that because the notorious National Electric Power Authority (NEPA) changed its name to Power Holding Company of Nigeria (PHCN), the two are not one and same. For all it is worth, when the Akwa Ibom State University of Technology Law 2003 was repealed in 2009 ushering in a new law to be known as the Akwa Ibom State University Law 2009, what happened was a change of name and not a change in form. The form earlier identified by the name Akwa Ibom State University of Technology is the same form now identified with the name Akwa Ibom State University. Therefore, the liabilities and responsibilities of the old name Akwa Ibom State University of Technology must now be borne by the new name Akwa Ibom University, and I so hold.

On the position of the 3^rd Defendant that the suit herein does not disclose a cause of action against the 3^rd Defendant, I must say that Counsel to 3^rd Defendant misapplied Sections 37 and 38 of the Company and Allied Matters Act. For the benefit of doubt, a body or organisation can become a legal entity by the statute establishing it or by incorporation/registration at the Corporate Affairs Commission. A body, organisation, company or business registered with the Corporate Affairs Commission is bound by the Company and Allied Matters Act because it is by that same Act that the Corporate Affairs Commission was established. The Akwa Ibom State University of Technology or the now Akwa Ibom State University does not derive its legal personality from the Company and Allied Matters Act (CAMA) or the Corporate Affairs Commission (CAC) but from the law known as the Akwa Ibom State University Law, 2009. This is the law that clothes the 1^st Defendant with herein with legal personality and not CAMA as relied on by the 3^rd Defendant. As a result, Sections of the Company and Allied Matters Act and cases cited by Learned Counsel to 3^rd Defendant in their written address go to no issue, and I so hold. I also cannot really fathom out where Counsel to 3^rd Defendant got the idea from that the Akwa Ibom State University established by a law enacted by the Akwa Ibom State House of Assembly can be equated to a limited liability company incorporated with the Corporate Affairs Commission.

Furthermore, the 3^rd Defendant argued that the suit herein does not disclose any cause of action against the 3^rd Defendant as there is nothing said in Claimant’s statement of claim touching on the 3^rd Defendant. In all fairness to the 3^rd Defendant, the Claimant avers that the 2^nd Defendant, while acting on a directive issued by the Commissioner for Information to the 3^rd Defendant, removed the Claimant from office as acting director which by extension led to the termination of his appointment with the 1^st Defendant. Furthermore, appeals were made to the governor through the Secretary to the State Government and the Commissioner for education also a cabinet member of the 3^rd Defendant. If the legs do not walk, they will not get soiled with mud – I really cannot comprehend how the 3^rd Defendant is able to convince herself that the Claimant has no cause of action against her when she was the one that set off the series of negative events that befell the Claimant by making a directive through her Commissioner for Information for the removal of the Claimant. The Commissioner for Information for all intent and purposes is the mouthpiece of the Governor and answerable to him as his principal. The Governor is responsible for the actions or inactions of the Commissioner and as such, can be sued for the actions or inactions of the Commissioner especially when such actions or inactions were brought to his knowledge and, for reasons best known to him, failed to take steps to correct such actions or inactions. Furthermore, I must quickly add that government and governance is successive and continuous even though the personalities that occupy such positions are not eternal. In this vain, parties aggrieved can sue any successive government and it is immaterial whether the personality occupying the position of governance is different from the one occupying the position the time the injury was caused.

From all the analyses above and the facts and evidence adduced in this case, this Court finds and I so hold that this suit discloses a cause of action against the 3^rd Defendant.

The parties in this suit are in agreement that there was an announcement made by the Honourable Commissioner of Information for Akwa Ibom State on the radio disengaging all principal officers of the Cross River State University of Technology (as it then was). There is evidence that the then acting Vice Chancellor acting on the announcement made by the Commissioner issued letters of removal to the then acting directors to which the Claimant is one of such. It is apposite to reproduce the content of the letter issued to the Claimant by the 2^nd Defendant dated 3^rd June, 2008 tendered in evidence and marked Exhibit A9 before this Court. The letter reads:

Dear Mr. Ikpe,

REMOVAL FROM OFFICE OF PRINCIPAL OFFICERS

Following the announcement by the Hon. Commissioner of Information on May 8^th and 10^th 2008, that “the Principal Officers of the University, except the Acting Vice Chancellor, have been relieved of their appointments”, and following my directives at the meeting with all of you immediately after this announcement, please be informed that you are to hand over all university property in your possession, including cars to Engr. Ime Asuquo of the Works Department; also submit your Handing-over Notes to the acting Vice-Chancellor’s Secretary, before the close of business today, and vacate your offices by the end of the official hours today.

You should await further directive from the State Government.

On whom is a principal officer, the position of the Claimant is that according to the law, he is not a principal officer to be affected by the directive of the Commissioner for Information. On the part of the Defendants, while relying on the dictionary definition of a principal officer, they posited that the Claimant was a principal officer. Moreso, the Defendants posited that Claimant put himself out as a principal officer when he submitted himself to be named as one of the principal officers in page 16 of the Akwa Ibom State University of Technology Handbook (Exhibit B15). Being that there is so much hue and cry on who qualifies as a principal officer, the Court cannot help but take a holistic look at who a principal officer is by law and by facts and juxtapose same with the circumstances of this suit. On principal officers, the first schedule of the Akwa Ibom State University of Technology, 2003 lists the following as principal officers – Chancellor, Pro-Chancellor, Vice Chancellor and Deputy vice Chancellor. See generally Section 1 – 5 of the First Schedule to the Akwa Ibom State University of Technology Law, 2003. I have read carefully the said first schedule and discovered that there is no way the Court can conclude by the very nature of the provision that principal officers of the university are limited to the ones addressed in the law. I think the law only addressed these particular sets of principal officers for the purpose of highlighting the extra roles to be played by them but not a conclusive list or exhaustive list of whom to be regarded as a principal officer.

In most cases, it is the office you occupy that makes you a principal officer and not the law. What the Court is saying here is that that somebody is a principal officer is dependent more on fact than law. Hence a Head of Department can be a principal officer as far as the Department is concerned just as a class prefect can be a principal officer as far as the class is concerned. In all fairness to the Claimant, he was an acting director in a university that was still at the take off stage which from the evidence available to the Court, did not have positions like deputy vice chancellors. By implication, the acting directors were next in rank to the Vice Chancellor. As at that time, I really wonder who a principal officer is if the Claimant was not one. In any event, if the people call you a King in the North or a King of the Seven Kingdoms and, despite your objection, they treat you and regard you as such, if things go awry and same people dethrone you and say you are no longer their king, I really do not see why such a king would fret over his removal as a king when all along it was the people and not him who saw him/regarded him as a king. The Claimant herein may not be a Jon Snow in the popular epic movie – Game of Thrones, however, the point the Court is trying to make here is that if the Commissioner of Information made an announcement on removal of principal officers and in the process Claimant was removed as a “principal officer” being an acting director at the time, I see no reason why Claimant should be beat or start exacerbating his energy on who a principal officer is. If his employers did not see him as a principal officer, they wouldn’t have acted on him by removing him as an acting director. Even if by Claimant’s imagination he was not a dejure principal officer, from the circumstances of this case, he was a defacto principal officer. The Defendants saw him as a principal officer, he was affected by the directive as a principal officer and as such this Court finds and I so hold that the position of the Claimant as a principal officer can only be construed against the Defendants who treated and regarded the Claimant as a principal officer and not the other way round. In this light, Claimant can save his energy and his arguments should be on whether removing him as an acting director also means bringing his employment with the 1^st Defendant to an end. This Court as a labour Court has taken judicial notice of the fact that positions of deans of faculty, Heads of Department etc in an institution of learning are for a term certain and removal from the office before the end of the term or at the end of the term does not automatically terminate the employment of the holder of the office as such persons continue in the employment but with duties different from their earlier position. As a matter of fact, appointments to such juicy or bitter-sweet positions will come and go but the contract of employment still subsists. To my mind, this is the very essence of the Akwa Ibom State University Law, 2003 where in Section 14 of the Second Schedule, while providing for the establishment of directorates and stating their term and tenure of office, went on to provide that a director will be assigned other duties in the University on relinquishing his post as director. In this sense, that somebody ceased to be a director does not bring to an end the person’s employment. The Defendants seemed to be in agreement with this but seems to give the impression that they did not terminate the employment of the Claimant on relieving him of his position as acting director but it was the Claimant who stopped coming to work. Now the question is who provides work? Is it the Claimant (employee) or the Defendants (employer)?. The answer is in Section 17(1) of the Labour Act which provides as follows:

Except where a collective agreement provides otherwise, every employer shall, unless a worker has broken his contract, provide work suitable to the worker’s capacity on every day(except rest days and public holidays) on which the worker presents himself and is fit for work; and, if the employer fails to provide work as aforesaid, he shall pay to the worker in respect of each day on which he has so failed wages at the same rate as would be payable if the worker had performed a day’s work: Provided that-

(a) where, owing to a temporary emergency or other circumstances beyond the employer’s control (the period of which shall not exceed one week or such longer period as an authorized labour officer may allow in any particular case), the employer is unable to provide work, the worker shall be entitled to those wages only on the first day of the period in question; and

(b) This subsection shall not apply where the worker is suspended from work as a punishment for a breach of discipline or any other offence.

(Underlining mine)

From the foregoing, it is obvious that the duty to provide work for the employee lies squarely on the shoulders of the employer. I wonder why in the case of the Claimant, the letter removing him as acting director fails to state other duty(s) assigned to the Claimant in the institution on ceasing to be acting director. The position of the Defendants that they did not terminate the employment of the Claimant but only removed him as acting director cannot be sustained by this Honourable Court. They had all the time in world to correct themselves on this before the matter became sub-judice given the correspondences between the Claimant and other concerned bodies, they ignored all appeals and correspondences only for them to come to Court in a guise to wash their hands clean of the termination of the employment of the Claimant. Given the event that unfolded after the removal of the Claimant as acting director, all that the Court can say on the position of the position of the Defendant that they did not end the employment of the Claimant is that the voice saying this is the voice of Jacob while the hand of the speaker is that of Esau. To put it clearly, what the voice is saying now when the matter is sub-judice is not what the hand did before the matter became sub-judice. From the evidence before this Honourable Court, this Court finds and I so hold that when the Defendants removed the Claimant from office as acting director, they meant and intended the end of the employment of the Claimant. For the avoidance of doubt, the paragraph before the last paragraph in the letter of removal (Exhibit A9) reads thus:

………please be informed that you are to hand over all university property in your possession, including cars to Engr. Ime Asuquo of the Works Department; also submit your Handing-over Notes to the acting Vice-Chancellor’s Secretary, before the close of business today, and vacate your offices by the end of the official hours today.

The harsh and rash command above is enough for a reasonable man to conclude that the Defendants were not only relieving the Claimant of his position as an acting director but showing him the way out of the employment of the Defendant. Any reasonable man receiving this kind of letter does not need his prophet to tell him the intention of the letter. However, coming to the last paragraph, it is a temptation to think that there is still hope for the Claimant as the last paragraph states You should await further directive from the State Government. A further directive that never came! What is more, the last paragraph was said only to massage the already battered ego of the Claimant, patronize him and tantalize him that it would be well when they knew right then that it would never be well again! The Labour Act imposes a duty on the Defendants to provide job for the Claimant. Therefore, even if the Court was to believe the Defendants that Claimant was to revert back to his position as deputy director, I am not sure it is something that needed concealing from the Claimant until after the institution of this suit. Rather, it is something they needed to tell the Claimant at the point he was derobed of his position as acting director. Saying it at this stage of trial is an afterthought which is just a ploy to cover the wrongful acts of the Defendants, and I so hold. For all intents and purposes, from the words of the letter removing the Claimant as acting director as well as given the subsequent actions and inaction of the Defendants in the face of the appeals and protests letter by the Claimant, the Defendants actually ceased seeing the Claimant as their employer after issuing the letter removing him as acting director, and I so hold.

By virtue of the class of employment the Claimant belonged, he was an administrative staff. On removal, discipline of academic, administrative and technical staff, Section 20(1) of the Akwa Ibom State University of Technology, 2003 provides as follows:

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

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

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

(c) If he or any three members of the Council so request within the………..

(i) For the Disciplinary Committee to investigate the matter and report on it to the Council; and

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

The foregoing is the position of the law on how an academic, administrative or technical staff can be removed. In OGIEVA VS. IGBINEDION (2005) ALL FWLR (PT. 260) PG. 85. © PG. 87 their Lordships of the Court of Appeal held thus:

Where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body invested with the authority would follow the requirement to details.

The non-observance in the process of reaching its decision renders the decision itself a nullity. In other words, when a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such procedure must be strictly followed.

In this vain, if the Defendants are to terminate the employment of the Claimant, they must adhere strictly to the procedure highlighted above. Any other way outside the provision above is null, void and of no effect whatsoever.

In the case herein, there is no evidence before me that on being removed as acting director, the Defendants assigned other duties to the Claimant to enable him stay on in his employment. Rather, there were several appeals by the Claimant that he should be allowed to carry out his duty as deputy director. All these appeals fell on deaf ears. Furthermore, there is also no evidence that the laid down procedure was followed in terminating the employment of the Claimant in line with what is provided for by the law on the termination of an administrative staff. Now, having held earlier that the Defendants, in removing the Claimant, intended and meant an end of the employment of the Claimant, and also having found here that there is no evidence before me that the laid down procedure in the termination of the Claimant as administrative staff of the Defendants was complied with, whatever action or inaction of the Defendants in bringing to an end the employment of the Claimant is hereby declared null, void and of no effect whatsoever, and I so hold.

I must re-echo the position of the law as stated in Emmanuel Okeme V. Civil Service Commission Edo State &Ors (2000) 14NWLR (Pt.688) 430 and Olaniyan &Ors V. University of Lagos (1985) 2NWLR (Pt.9) 599 that public servants in the established and pensionable cadre of state or federal government do not hold office at the pleasure of the state or federal government. Rather, their appointments are based upon rules and regulations, statutes or memoranda of appointment as the case may be. It is quite appalling that by an announcement made by a Commissioner of Information, 2^nd Defendant can act on it in not only removing the Claimant from the position he occupies as acting director but by extension terminate the employment of the Claimant whose employment is a pensionable employment and protected by law.

On the position of the Claimant that the directive by the Commissioner of Education that the status quo being maintained is a valid directive of the Governor in the face of the announcement made by the Commissioner of Information removing all principal officers, this Court wishes to state that both Commissioners have a boss in the person of the Executive Governor. Therefore, if there is conflict between two Commissioners in same cabinet on the directives given by the two commissioners under a Governor, it is the duty of the Governor, who is not dumb, to speak up and clarify who is speaking his mind. He is in the best position to determine whether the directive given by the Commissioner of Information is the valid directive from him or it is the directive by the Commissioner of Education that is the valid directive from him. It is actually not the duty of the Court to determine which of the two is the valid directive of the Governor. In this light, the 1^st relief sought by the Claimant that the letter of the Honourable Commissioner of Education dated 12^th June, 2008 was a valid directive from the state Government on the subject matter which must be complied with is bound to fail. It is more so because if the Governor chose to just sit down and watch his Commissioners go haywire on the issuance of directives, that is not the business of the Court but the business of the Governor. That said, it is however the business of the Court to determine the legality or illegality of such directives. In this light, the Court will proceed to x-ray the circumstances leading to the removal of the Claimant, its legality and implication.

In the case herein, the Governor is vested with the power to appoint the first set of directors. Subsequent directors are to be appointed by the Council. See generally Section 14(6) of the Second Schedule to the Akwa Ibom State University of Technology Law, 2003 which provides that the first set of directors of the University are to be appointed by the Governor. Perhaps, it is in this regard and in waking up to his responsibility, the Governor, courtesy of the Commissioner for Information, had to make the announcement removing the Claimant and his other colleagues whom, besides being directors in acting capacity, were never appointed by the Governor, to pave the way for the first set of substantive directors to be appointed by the Governor. However, perhaps, the Governor ought to have considered the time, effort and sacrifice put in by the Claimant and his other colleagues who are the pioneer acting directors by first considering them for appointment of substantive directors before outsiders. It is normal for some persons to first consider those already on the job for appointment before considering outsiders. However, the Governor is not some persons – he is a politician, and sometimes even the devil himself does not know how the mind of politicians work. Be that as it may, the Governor and the other Defendants got it wrong when they thought that removing Claimant whose employment is with statutory flavor from his appointment or position as an acting director is same as bringing to an end the employment contract of the Claimant. They shot themselves in the foot when they removed the Claimant as acting director but failed to ask or revert the Claimant back to the post of deputy director or assign him other duties as provided by the law.

On the argument that the Claimant was never given a confirmation letter of employment, this Court wishes to state that letter of confirmation of employment is usually given within a reasonable time once the employer is satisfied that he is willing to keep the employee in his employment. Any employer who delays the issuance of letter of confirmation after the employee has worked beyond three months, six months or beyond one year at most, is deemed to have confirmed the employment of the employee, and I so hold. The Claimant cannot issue himself confirmation letter. In the case herein, the Claimant was employed in 2005 and worked till 2008 before he was removed. That period is more than enough for the Defendants to have issued him a letter of confirmation. Failure to so do cannot be used against the Claimant but can only be construed against the Defendants that having kept the Claimant beyond the reasonable time within which they ought to have given him letter of confirmation is an indication that the Claimant’s employment has been confirmed by the conduct of the Defendants, and I so hold.

From all that have been said above as well as in the absence of any evidence that as at the date of this judgment Claimant has already reached retirement age, the fate of the Claimant is as sealed in the decision of the Court in Richard Omidiora & Anor V. Federal Civil Service Commission &Ors (2007) 14 NWLR (Pt.1053) 17 when the Court held:

Once dismissal or retirement is declared null and void, there is nothing legally standing in the way of the Plaintiff from having their jobs back with its attendant rights, benefits and privileges. Thus, a successful litigant on the issue of unlawful dismissal, where it is an employment with statutory flavour is entitled to be restored to his status quo ante bellum.

Consequently, the suit of the Claimant succeeds as follows:

Relief 1 fails

Relief 2 succeeds

Relief 3 succeeds

As touching on the alternative relief, this Court, given the circumstances of this suit is not minded to grant same. The Court will rather order that in the event that the Claimant has reached the retirement age on the day of this judgment, the Defendants shall pay him all his salaries in full from the date of removal till date of retirement and also pay him his full retirement benefits.

For the avoidance of doubt, the Orders/Declarations of the Court are as follows:

THE COURT HEREBY DECLARES that the purported removal of the Claimant from office as per the letter dated 3^rd June, 2008 and the procedure adopted by the Defendants were irregular, invalid, null and void and contrary to the statute establishing the 1^st Defendant and the principle of natural justice.

THE COURT HEREBY ORDERS the immediate reinstatement of the Claimant with all financial entitlements, promotion and allowances from 3^rd June, 2008 till date

OR IN THE ALTERNATIVE TO ORDER 2 ABOVE:

THE COURT HEREBY ORDERS the Defendants to pay Claimant all his salaries, allowances accruable to his earned promotion and all his retirement benefits in full from the date of removal till date of retirement, provided that from available evidence, the Claimant has already attained retirement age as at the date of this judgment.

Judgment is entered accordingly.

…………………………………

HON. JUSTICE M.N ESOWE