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National Industrial Court

Muhammed Aliyu Abubakar -VS- The Vice Chancellor Federal

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I AMADI

Dated July 10, 2019                    SUIT NO: NICN/JOS/45/2016

BETWEEN: –

MOHAMMED ALIYU ABUBAKAR……….………………          CLAIMANT

AND

  1. THE VICE CHANCELLOR,

FEDERAL UNIVERSITY, KASHERE

  1. FEDERAL UNIVERSITY, KASHERE……………….     DEFENDANTS

 

REPRESENTATIONS:

Habu Abdu Esq. for the Claimant

H.B. Ghidefor the Defendants

 

INTRODUCTION

The Claimant commenced this case by a general form of complaint and statement of facts dated 14thDecember, 2016 and filed same date. The claimant claimed against the defendant as follows:

  1. A Declaration that the purported letter of the Defendants with reference Number FUK/R/SN/PF/0009 and dated 31st October, 2016 terminating the Claimants appointment is null, void and of no legal effect whatsoever, having denied him a fair hearing as is enshrined in the Federal University of Kashere (Establishment) Act, 2015, the Rules And Regulations Governing Condition Of Service, the Scheme of Service of the 2nd Defendants which came into force in January, 2016 and the Constitution of the Federal Republic of Nigeria 1999 as amended.
  2. A Declaration that the fundamental rights of the Claimant has been infracted by the failure of the Defendants to afford him a fair hearing as is enshrined in the Federal University of Kashere (Establishment) Act, 2015, the Rules And Regulations Governing Condition Of Service, the Scheme of Service of the 2nd Defendants which came into force in January, 2016 and the Constitution of the Federal Republic of Nigeria 1999 as amended.
  3. An Order of this Honourable Court directing the Defendants to withdraw the purported letter of the Defendants with reference Number FUK/R/SN/PF/0009 and dated 31st October, 2016 terminating the Claimants appointment same being null, void and ultra vires the Federal University of Kashere (Establishment) Act, 2015, the Rules And Regulations Governing Condition Of Service, the Scheme of Service of the 2nd Defendants which came into force in January, 2016 and the Constitution of the Federal Republic of Nigeria 1999 as amended.
  4. An Order of this Honourable Court reinstating the Claimant to his post and position of Bursar of the 2nd Defendants as approved and appointed by the Honourable Minister of Education on the 4th of May, 2015 vide letter with reference Number FME/TE/CU/347/II/1235.
  5. An Order of this Honourable Court directing the Defendants to pay the Claimant all his benefits and entitlements lost as a result of the letter with reference Number FUK/R/SN/PF/0009.
  6. The sum of Five Million Naira (=N=5,000,000.00) general damages based on the above.
  7. The sum of Three Million Naira (=N=3,000,000.00) exemplary damages on the above.
  8. The cost of filing this action.

The Defendants filed their Memorandum of Appearance and Statement of Defence dated and filed 23rdJanuary, 2017 and the Claimant filed his Reply to the Statement of Defence dated 6thDecember, 2017.

The case was mentioned on 13th March 2017, and Trial commenced on 7th December, 2017, the Claimant called a sole witness Mohammed Aliyu Abubakar (CW1) adopted his two witness statement on oath dated 14thDecember 2016 and 6thFebruary 2017 respectively, tendered all documents pleaded and frontloaded. CW1 was subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 3rd December, 2018 after which the claimant closed his case.

The Defendant opened their case on 4thFebruary, 2019 and called two witness who testified on their behalf and were cross examined. The Defendant closed their case on the same 4th February, 2019. The matter was adjourned to 26th March 2019 for adoption.

The Defendants’ final written address dated 20thMarch 2019 and filed on 3rd April, 2019.

The Claimant’s final written address dated 15thApril, 2019 and filed 18thApril, 2019.

FACTS OF THE CASE

The Claimant was first employed by the 2nd Defendant as Deputy Bursar on temporary Full-time Appointment on 15th December, 2011 before he was later offered Permanent and Pensionable Appointment as Deputy Bursar on 29th October, 2012. The Claimant continued serving the 2nd Defendant in that capacity up till 2015, when he applied for the post of Bursar as advertised and was successfully offered appointment as Bursar on 4th May, 2015. It is the Claimant’s case that before the 4th May, 2015 he was without specified schedule of duty from 15th December, 2011 to April, 2015 as his schedule of duty was not defined by the Federal University Kashere (Establishment) Act, 2015 and or the Rules and Regulations Governing Condition of Service and Scheme of Service of 2nd Defendant which came into force January, 2016; as a result thereof he only acts based on the orders and directives of the Vice Chancellor and Registrar.

The Claimant stated that he appeared and was afforded opportunity to appear before the Fact Finding Committee of the Federal Ministry of Education and answered questions put to him upon his return out of Nigeria on an official assignment in 2016 but was not afforded the same rights by the Defendants who wrote and terminated his appointment hence this suit.

 

TRIAL

The case was mentioned on the 13th March 2017 and hearing commenced on the 7th December 2017 after parties has exchanged their pleadings.

At the trial the Claimant testified for Himself as the sole witness MOH’D ALIYU ABUBAKAR (CW1). The Claimant identified his witness statement on Oath dated 14/12/2016and he adopted same as his evidence in the trial and tendered eleven (11) documents in support of his claim.

Under cross examination, witness stated that he became a principal of the 2nd defendant following his appointment as a Bursar and by his letter of appointment (Exhibit CE), his appointment was by the 2nd defendant.And that by Exhibit CF (letter of termination) it was not based on the directive given by the Federal Ministry of Education. Witness stated that the investigation by the committee set up was based on the allegation against him and also a petition written by some staff of the 2nd Defendant. Witness affirmed that the committee that investigated him was not set up by the defendants and that he appeared before the committee that investigated him and made his representation. Witness stated that it is not true that the allegation against him is that about 140 million naira was deducted as repayment from staff salaries which was made for fumigation cost.

Witness was discharged and Claimant closed their case

On 4th February 2019Defence opened their case and called ALHAJI KABIRU AMINU (DW1). Witness identified his witness statement on Oath dated 23/1//2017 and adopted same as his evidence in the trial and tendered six (6) documents.

Under cross examination witness stated that he assumed duty as Registrar of the defendant on 15/8/2016. Witness stated that there was a petition which led to the composition of the committee but is not aware when the petition was written, and that he did not see the petition as it was written to Federal Ministry of Education. Witness stated that he was not the Registrar as at the time the committee came, sat and concluded their assignment. That the invitation letter to the Claimant to appear before the committee is before the court and he was given fair hearing, that from Exhibit CF(letter of termination) the claimant was informed of what happened at the council but he was not there. Witness confirmed that The Rules and Regulations (Exhibit DF-DF100) contains the steps to be taken in disciplining a staff. In answering Counsel’s question witness stated that the tenure of appointment of the Claimant is 5 years but the Claimant did not exhaust it because he violated the financial regulations. In conclusion witness stated that the Claimant approved loans to the Vice Chancellor and Registrar of the University.

Witness was discharged.

Defence calledMALLAM AUWAL (DW2). Witness identified his witness statement on oath dated 23/1/2019 and adopted same as his evidence in the trial.

Under cross examination, witness stated that by rank he is a Chief Accountantbut he is not a Principal Officer. That policy decisions were taken by his superiors and his evidence relate to decisions of his superior. Witness stated that the signature on DW2E is not his regular signature.

Witness was discharged and defence closed their case on 4thday of February 2019.

At the conclusion of hearing on 4thFebruary, 2019, the respective Counsel to the parties were ordered to file and exchange Final Written Addresses.

The final written address of the Defendant was dated 20thMarch 2019; and filed on 3rd April 2019; the learned counsel for the raised two (2) issues for determination by this Honourable court to wit-

1)     Whether or not having regards to the pleadings and evidence led (Exhibits inclusive) before this Honourable court, the Claimants claim is not an abuse of court process?

2)     Assuming but not conceding that the Claimant’s claim is not an abuse of court process, whether or not having regard to the pleadings and evidence led before this Honourable Court, the Claimant is entitled to the reliefs sought?

On issue one Counsel submitted that the claimant’s claim before this honourable court is a clear case of an abuse of court process. In order to appreciate this line of submission on this point, it is pertinent to set out the circumstances as to what amounts to an abuse of court process.

My Lord, it was held in the case R-Benky Nig. Ltd .v. Cadbury Nig. Ltd  (2012) 5 SCM 200  @  203-204 ratios 2 and 8 where ADEKEYE, J.S.C opined thus:

“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice. d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness. f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of court process.

Similarly, in the case of Alh. Umaru Bako &Ors v. Yau Abubakar (2014) LPELR-23975 (CA) the Court of Appeal held thus; –

“it has been stated that the critical factors in the determination of whether an action is an abuse of the judicial process are, considerations of the circumstances for bringing the suit, the reasons for doing so, the grounds relied upon for instituting the action See A.G Federation v. A.G. Abia State (2001) 11 NWLR part 725  page 773-774, PER Karibi-Whyte J.S.C. “ PER ORJI-ABADUA, J.C.A (pp. 28-29, paras. F-A”

Counsel submitted that applying the above principles of law to the case at hand, this case is an abuse of court process for the under mentioned reasons:-

Firstly, the Defendant is not the proper person or party to be sued: there was no basis for the filing of this claim against the Defendant since-

  1. a)It was not the defendant that employed the Claimant into its service but the President of the Federal Republic of Nigeria through the Federal Ministry of Education. Paragraph 1 of Exhibit CA
  2. b)It was not the defendant that set up the facts finding committee that indicted the Claimant for gross misconduct which led to the termination of his appointment Exhibit DA, DB, and DC.
  3. c)That the termination of the Appointment of the Claimant was directed by the Federal Ministry of Education, the defendant only conveyed the message in compliance with the directive of the Federal Ministry of Education. Paragraphs 1 and 2 of Exhibit CB (Claimant’s Termination of Appointment Letter), Exhibit DA and DB (Letters of 9/9/2016 addressed to the Pro-Chancellor and Vice Chancellor respectively) directing the Defendant’s Council to implement the Recommendations of the Facts Finding Committee set up by the Federal Ministry of Education as it/they affect the Defendant and Exhibit DD-DD31 page 2 Columns 1, 2, 3, 4 and 5 as it relates to the Claimant.

Counsel submitted that the proper party to be sued ought to be the Federal Ministry of Education as the Defendantand not the Defendant since the basis of the Claimant’s contention is borne out of the recommendation and directives of the Federal Ministry of Education that should have been sued and not the Defendant.

That the law is well established that the Plaintiff has a duty to bring to Court a party whose presence is crucial to the resolution of the case. It was held in the case of Chief Maxi Okwu& Anor v. Chief Victor Umeh&Ors (2015) LPELR-26042 (SC) on the legal effect of non-joinder of necessary party by OKORO JSC thus:

…. However, while it is the law that no cause ormatter shall be defeated by reason of the mis-joinderor non-joinder of any party, yet in the absence of aproper party or necessary party before the Court, itappears an exercise in futility for the Court to make an order ordecision which will affect a stranger to the suit whowas never heard or given an opportunity to defendhimself. This will certainly be against the tenets andtenor of Section 36 of the Constitution of the FederalRepublic of Nigeria, 1999 (as amended). In theinstant case, there is no way the question posed bythe appellants for determination would be effectuallyand completely answered in the absence of APGA, theultimate beneficiary of the outcome of the decision.Also, without APGA as a party, the reliefs soughtwould not have any effect as APGA cannot be boundby an order of a Court in a matter it was not a party.This is, sadly, the lot of this case. See Olawoye V.Jimoh (2013) 13 NWLR (pt. 1371) 362, NDP v. INEC(2013) 6 NWLR (pt. 1350) 392.

The end result of whatI have said above is that although the trial Court hadthe jurisdiction to hear the suit as constituted, thejudgment generated thereby which had massiveimpact on the activities of APGA, including itsleadership, cannot be allowed to stand.A plaintiff is not bound to sue a particular party.However, where the outcome of the suit will affect that party one way or the other, it will be foolhardy not tojoin him in the suit. In fact, it would amount to anexercise in futility as the said party will not be boundby the outcome of the case.”

Counsel submitted that based on the above position of the law to the case at hand the absence of the Federal Ministry of education as a party in this suit is fatal. This is so because the genesis of the Claimant’s case originated from the investigation of an allegation of misconduct by the Facts Finding Committee set up by the Federal Ministry of Education and its subsequent recommendation and directive for the termination of the Claimant’s appointment. And that any decision made By this Honourable Court declaring the termination of the Claimant’s appointment as null and void goes to the roots of the action of the Federal Ministry of Education and without joining the Ministry as a party it rendered the order of this Honourable Court an exercise in futility as the Ministry of Education was not given an opportunity to defend the justification or otherwise of its findings, recommendation and directives to the Defendant which is being challenged by the Claimant.

Secondly the Claimant’s action is premised on frivolity or recklessness and he adopted the system of forum-shopping in the enforcement of his conceived right. This is anchored on the basis of the Claimant’s oral testimony under cross-examination and the content of Exhibits CA and CB.

Counsel submitted that the Claimant admitted under cross examination that by the content of Exhibit CA, his tenure of appointment was for single term of five years with effect from 16th February, 2011 and his tenure of office has ended by effluxion of time on 15th day of February, 2016 even before his appointment was terminated. And that by Exhibit CF a month’s salary has been given to him in lieu of the one (1) month notice less the loan deducted from his entitlements.

The question now is, since the Claimant has admitted that his tenure of office has ended by operation of time, then what are the basis of his claim as contained in paragraph 11 (a)- (d) of his Statement of claim? The simple answer is the Claimant is window shopping, a gold digger, making a wild goose chase. The suit is an academic preposition and abuse of court process, no useful purpose would be served by it. And the law is settled that courts are not set up to engage its precious judicial time in academic exercise

In conclusion counsel submitted that the Claimant’s claim against the Defendant in this case is an abuse of court process and is a suit filed for mere academic exercise and resolve issue one in favour of the Defendant against the Claimant and dismiss this suit.

On issue two Assuming but not conceding that the Claimant’s claim is not an abuse of court process, whether or not having regard to the pleadings and evidence led before this Honourable Court, the Claimant is entitled to the reliefs sought?

Counsel submitted that their answer to this question posed with utmost respect is an absolute “no”. That the Claimant is not entitled to reliefs sought by him as endorsed on his writ of summons and paragraph 11 of the statement of claim. The basis of our argument is premised on the fact that the claimant has failed woefully in establishing and/or proving his claims against the Defendant on the balance of probability or preponderance of evidence as required by law. That in civil suit, the general principles of law are that he who asserts must prove a; and the burden of proof lies on the person who wants the court to believe the existence or non existence of a certain fact. Counsel referred to the provisions of Section 131(1) of the Evidence Act, 2011 which provides thus:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which je asserts must prove that those facts exists”

Counsel submitted that in discharging this burden, the Plaintiff is required to rely on the strength of his case and not on the weakness of the Defendant’s case or defence. And if this onus is not discharged, the weakness of the Defendant’s case will not help the Plaintiff’s and the proper judgment is for Defendant by dismissing this claim.

That a party in a suit for declaration is not only required to prove relevant facts to establish his case based on admissible evidence specifically pleaded in the Statement of Claim but must ensure that the evidence led must be credible. A court does not grant a declaration of right either in default or an admission without taking evidence and being satisfied that the evidence led is credible except where the Defendant’s case supports that of the Plaintiff’s case. The case of Etim v. Akpan (supra) where the Supreme Court held per Muhammmad JSC thus:

“A declaratory relief is only granted in consequence of a finding of fact made by the court. In the absence of sufficient evidence to make the finding of fact that must precede its grant of the relief, the court would not exercise its discretion to grant the relief, the court would not exercise its discretion to grant the relief. Similarly, in an action in which declaratory reliefs are sought, admission on the part of a defendant will not, by itself and independent of the case made out by the Claimant entitle the latter to judgment. Being a discretionary remedy, it is granted only where court is satisfied that from his statement of claim and the evidence adduced in support, the Claimant has a very strong and cogent case. The Claimant must therefore, satisfy the court that on his own he is fully entitled to the grant of the reliefs. He succeeds wholly on the strength of his case and not on the weakness of the case proffered in defence to his claim”

This position of the law is anchored on the premise that, a claim originates an action and a plaintiff is bound by his pleadings and when once the evidence differs materially from the averments in the pleadings, the claim must be dismissed because facts not pleaded go to no issue. See the cases of Ikpeazu v. Otti&Ors (2016) 7 SCM 69; Emmanuel v. Umana &Ors (2016) 7 SCM 1.

Counsel submitted that in a suit related to contract of employment the law further ascribed that, the employee who is complaining that his employment has been wrongfully terminated has the onus:-

  1. a)To place before the court the terms of employment and,
  2. b)To prove in what manner the said terms were breached by the employer

It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.

Counsel submitted that while adopting the reasons advanced in support of the first issue for determination to prove that the Claimant has not established his Claims on preponderance of evidence, submits further based on the facts, pleadings and evidence led by the Claimant before the Honourable Court in that

  1. i)The claimant has not placed the terms and conditions of employment he claims to have been breached before the Honourable Court.
  2. ii)The Claimant has not proved before this Honourable Court in what manner the said terms and conditions of employment have been breached by the Defendants.

iii)               The Claimant has by his statement of Claim, particularly paragraph 20 – 28 contradicted himself when stating that he was not afforded fair hearing in regards to the termination of his appointment.

  1. iv)The Claimant has not led evidence through PW1 not through exhibits tendered to establish that the termination of his employment was wrongful for the following reasons:-
  2. a)The Claimant did not establish it was the defendant that set up the facts finding committee that indicted him leading to the termination of his appointment.
  3. b)The termination of the appointment of the Claimant was based on the directive given by the Claimant’s employer as contained in Exhibit CF, DA, DB, DD-D31
  4. c)The termination of the Claimant’s employment was done in accordance with the terms and conditions of his employment as contained in Exhibit CC, CF and DE – DE101 particularly Section 3.3.7 (ii) of Exhibit DE – DE 101
  5. d)By the provision of Section 3.3.7 (ii) of the Rules and Regulations Governing the Condition of Service of the Defendant Exhibit DE – DE101 a confirmed employee may have his appointment terminated by the University on ground of misconduct as with the case of the Claimant based on the allegation levied against him as contained in Exhibits CF and page 3 – 4 of Exhibit DD – DD31.

The 2nddefendant was even gracious and merciful to the Claimant by paying him one month salary in lieu of notice as confirmed by the Claimant himself under cross-examination as well as Exhibit CF.

The law is trite that, where a contract of service is for a fixed time, that contract is determined by the expiration of the agreed term stated in the letter of employment without prejudice to the right of employment without prejudice to the right of the employer to terminate the employment before the expiration or during the period of the term contracted on grounds of misconduct or where the employer or employee dies. Reliance is placed on the cases of S.S.C Ltd v. Afropak Nig. Ltd (2008) vol 164 LCRN pg 36 at 58 para UEE; Igbe v. Governor of Bendel State (1983) 2 SC page 14; Swiss Nig. Wood Industries Ltd v. Bogo (1970) NCLR page 423.

Counsel submit that assuming but not conceding that the Claimant’s employment was wrongly terminated, reliefs (i-viii)  as endorsed on his writ and paragraph46 ( i-viii) of his statement of claim cannot be granted by this Honourable Court for these following reasons:

  1. a)Reliefs a – d of paragraph 46 of the Claimant’s Statement of Claim are urging the Court to compel an unwilling employer (Defendant in this case) to retain a worker (Claimant) in its employment. And  the law is trite that, the court would not compel an unwilling employer to retain any worker his/her/its service.
  2. b)Similarly, an employer is not bound to give any reason for terminating the employment of a servant.
  3. c)It is equally the law in a long line of authorities that, in contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, as in this case, the only remedy available to an employee whose employment is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end and not general and/or exemplary damages as been sought in paragraphs f, g and h of the Claimant’s Statement of Claim.

On the above mentioned principles reliance is placed on the cases of Ativie v. Cabel Metal Nig. Ltd. (2008) 164 LCRN Pg 71 at pg 84 para FP; 88 para EE – JJ; Kato v CBN (1999) 6 NWLR (pt 607) pg 890 at 906; Western Nigeria DevelopmentCorporation v Abimbola (1966) 4 NSCC pg 172, Noble Drilling (Nig) Ltd. v. Edemekong (2010) All FWLR (pt. 540) p.1377 at 1385 paras B-C where the Court held in the last case thus:-

“in a claim for wrongful termination of employment where there is a written provision for terminating the contract of employment, and there is a breach of the written provision, what the employee would be entitled to would be the salary for the period of the notice to terminate the employment of the employee. (Araromi Rubber Estates Ltd. v.Orogun (1999) 6 NWLR (Pt. 607) 390; Western Nigeria Development Corporation v Abimbola (1966)1 All NLR 159; referred to…”

Counsel submitted that applying these laws to the case at hand, they are of the firm view that the Claimant’s employment was not wrongly terminated. In the event the Honourable Court sees it otherwise, the Claimant has no basis to complain since the Defendanthas terminated his employment in accordance with the terms and conditions of service as contained in Exhibit CA which was evidenced by the Claimant’s payment slip Exhibit CF.

In conclusion counsel urge the Court to enter judgment in favour of the Defendant against the Claimant by dismissing the suit in its entirety and award at least 500, 000. 00 (Five Hundred Thousand Naira)

The final written address of the Claimant was dated 15th April 2019;and filed on 18thApril 2019; the learned counsel for the raised one (1) issue for determination by this Honourable court to wit-

Whether the Claimant has proved his case on preponderance of evidence to be entitled to all the reliefs sought?

Counsel submitted that the answer to the above question is in the affirmative, the Claimant has proved his case on preponderance of evidence.

Counsel submitted that even on the pleadings the material allegations contained in the Claimant’s Statement of Claim have not been specifically denied or controverted as required by Order 32(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, which requires the Defendants to answer thereto on point of substance and not evasively. And the Defendants’ denial of the averments in paragraphs 13, 14, 27, 30, 32, 33, 36, 38, 39, 40, 41, and 44 of the Claimant’s Statement of Claim, were evasive and not on point of substance. See paragraphs 2, 3, 4, 5 and 6 of the Defendants Statement of Defence.

That the Defendants in paragraph 6 of the Statement of Defence clearly admitted to Claimant’s claim of lack of fair hearing or opportunity to be heard and or served with any notice in pursuance thereof by averring therein that, “it would not have been necessary for the defendants to serve the Plaintiff with any notice…”.

Counsel submitted that even from the above averment it is without doubt a clear proof that the complaint of the Claimant has on the pleadings proved that he was not served with any notice before he was served with the Defendants’ letter of termination of his appointment dated 31st October, 2016 been admitted by the Defendants, to the extent of proving his averment that he was not afforded any opportunity to appear before the Council or Committee and be heard on the allegations labelled against him before his appointment was terminated.

The law is settled where a person admits to a particular fact it needs no further proof. See STEEL BELL (Nig) v. N.D.I.C. [2015]1 N.W.L.R. (Part 1441) Page 570 @ 578 Ratio 8; and IGNOBIS HOTEL LTD v. BENTEE ELECT LTD [2015] 1 N.W.L.R. (Part 1441) Page 504 @ 512 Ratio 3.

The lame and feeble attempt of the Defendants to “show” that the Claimant was afforded an opportunity to “appear” and be “heard” was in paragraph 15 of their Statement of Defence, where they pleaded that he appeared before the Committee set up by the Federal Ministry of Education. The question one may be tempted to ask is, are the two the same, i.e. the Committee of the Federal Ministry of Education and the Council of the 2nd Defendants? They are with due respect not the same and we urge Your Lordship to so hold, especially when they were not the ones that issued Exhibit “CF” but the Defendants.

Counsel submitted that if the Defendants could contend in paragraph 15 of their Statement of Defence that the Claimant was afforded opportunity to appear before the Committee set up by Federal Ministry of Education, thus further confirmed that the Claimant is entitled to be given the opportunity to be heard by them why won’t the Defendants afford him the same opportunity?

Counsel submitted that the Defendants have not denied the allegations of facts contained in the Claimant’s Statement of Claim against them based on the above,  and so urge the court to hold that even on the pleadings the Claimant has proved his case before this Honourable Court. That the Claimant in proof of his case against the Defendants through his written deposition which he adopted as his evidence in proof of this, deposed to the fact that before he was issued with the Defendants’ letter of terminating his appointment, through Exhibit “CF”, was not afforded any opportunity to defend himself or afforded a fair hearing.

Counsel submitted that the Federal University of Kashere (Establishment) Act, 2015 and the Federal University Kashere, Rules and Regulations Governing Conditions of Service of 2016 have provided therein Sections and Rules enjoining fair hearing be afforded to any person that is subject of discipline or removal. See Section 17(1) of the Federal University of Kashere (Establishment) Act, 2015 and Section 3.3 – 3.3.1-3.3.2 of the Federal University Kashere, Rules and Regulations Governing Conditions of Service of 2016.That by the above referred Statutes, disciplinary matters are handled by Committees set up by the authorities concerned, like in this case, the Defendants who are to appoint the members to man such Committees. See Section 17(2) (a) of the Federal University of Kashere (Establishment) Act, 2015 and Section 3.2.1 of Federal University Kashere, Rules and Regulations Governing Conditions of Service of 2016,and the Committees so formed would be given terms of reference(s) and time within which to sit, deliberate and conclude their investigation.

Counsel submitted that Section 17(1) of the Federal University Kashere (Establishment) Act, 2015 talks of grounds and procedure for removal of members. And there under in Subsection (1) (a) to (c)Council is enjoined to give notice of the reasons to the person in question, which will afford such person an opportunity of making representation in person on the matter to the Council, before the decision to terminate or not to terminate.

Section 17(2)states that the person and three members of the Council shall within one month of receipt of notice, make arrangements for (a) joint committee of the Council and Senate and (b) the person affected be afforded opportunity to appear and be heard before any decision is taken to remove him.

Counsel submitted that the two Statutes referred to above, i.e. Federal University Kashere (Establishment) Act, 2015 and Federal University Kashere Rules and Regulations Governing Condition of Service 2016 are making reference to committees and members with terms of reference required and consider issues relating to discipline and removal of members. In that same vein the statues made it a condition that the person subject of the disciplinary measure or removal be given an opportunity to appear in person before the committee, which was in total contrast to what was contained in Exhibit “CF”, to the effect that it was the Council at its “Regular Meeting” that sat and deliberated over the fate of the Claimant as he was not part thereof or given any opportunity to appear before the Counsel submitted that to add credence to the above state of facts, the Claimant has instructed that a Letter of Demand be written to the Defendants to request that they rescind the decision taken on him without affording him fair hearing. This piece of fact is contained in the Claimant’s Statement of Claim in paragraph 32, which curiously the Defendants did not deny or controvert same as is required of them by Order 32(2) of the Rules of this Honourable Court.

The Defendants in a bid to “show” that they were acting under the directive of the Federal Ministry of Education and implementing same tendered Exhibits “DA1”, “DB1” and “DC” which however was not reflected on Exhibit “CF”, the Defendants’ letter of terminating the Claimant’s appointment. Exhibit “CF” tendered by the Claimant did not contain any reference Number(s) of Exhibits “DA1”, “DB1” and “DC” tendered by the Defendants to show they were implementing any recommendation(s) therein contained.The Defendants’ claim of “implementation” of the “recommendations” of the Committee by issuing the Claimant with termination of appointment through Exhibit “CF” seem suspect and fell short of the directives of the Federal Ministry of Education considering the contents of Exhibit “DC” issued by the office of the Honourable Minister of Education.

In order to appreciate the above, it is imperative to consider paragraph 2 of Exhibit “CF” the letter of termination of appointment tendered by the Claimant, which reads,

“In compliance with the directives, Council at its 6th Regular Meeting  on 27th October, 2016, deliberated on the report that found you culpable….

i.

ii.

iii.

  1. Should besanctionedfor gross incompetence in the payment of Security Vote to the Vice Chancellor”.

That if there is any “connection” between the documents tendered by the Claimant and the Defendants, it is Exhibit “CF” and “DC” only to the extent that Exhibit “DC” made reference to the Claimant’s status as Bursar was in paragraphs 4 and 5 thereof, wherein the said exhibit particularly in paragraph 5 it stated that the Claimant as Bursar should be “sanctioned for gross incompetence” and not “gross misconduct” as was stated in Exhibit “CF”.

Counsel submitted that Exhibit “DC” which the Defendants claimed to have acted upon was dated the 6th of December, 2016 and its contents as it affects the Claimant are very interesting and intriguing, firstly, bearing in mind among the other exhibits tendered and being relied upon by the Defendants in implementing the directives of the Federal Ministry of Education directed that the Claimant be “sanctioned” and not terminate his appointment as was contained on Exhibit “CF”.

Another interesting feature to place reliance on Exhibit “DC” by the Defendants that makes it unbelievable and intriguing with due respect is, here is a letter directing the Defendants to act on 6th December, 2016 when in fact they had already acted on 31st October, 2016 before the directive came and acted ultra vires Exhibit “DC”.

Counsel submitted that based on the above, the Defendants were not acting on any directives of the Federal Ministry of Education since Exhibit “DC” has clearly shown it was not written earlier than 6th of December, 2016 and Exhibits “DA1”, “DB1” and “DD” did not contain any directive other than Exhibit “DC” referred to above.

Counsel urged to hold that Exhibit “CF” issued by the Defendants on the Claimant was not made in obedience of the directives of the Federal Ministry of Education and not accord any actions taken on Exhibit “DC” as valid, since the Defendants acted before the directive came.

Counsel submitsthat His Lordship considers Exhibit “DC” tendered by the Defendant and the word “sanctioned” used therein. That there is a world of difference between the word “sanctioned” and “termination”. The word sanction as defined by Black’s Law Dictionary Eighth Edition at page1368 defines “sanction” to mean, “to ordain, confirm or forbid under penalty”, while the word “termination” was defined by at page 1510 to mean, “the act of ending something”.That if the Federal Ministry of Education meant to have the Claimant’s appointment terminated, it would have specifically and categorically stated so in Exhibit “DC”. More so, contrary to the word used by the Defendants in Exhibit “CF” that the Claimants’ appointment was terminated for “gross misconduct”, the Federal Ministry of Education in Exhibit “DC” stated that the Claimant be “sanctioned for gross incompetence”.

Counsel submitsthat what is most disturbing in the allegations labelled against the Claimant and the lack of opportunity afforded him to defend himself was the fact that the complaint referred to in paragraph 4 of Exhibit “DC” related the period between 2012-2013 when the Claimant was Deputy Bursar without defined schedule of duty or role under substantive Vice Chancellor and Registrar with full powers and force of offices against the Claimant’s subordinate role.That, even the reference to the Claimant in paragraph 4 of Exhibit “DC” as “Bursar” then i.e. the period between 2012-2013 could not be so because during that period under review and the Exhibits “CA” and “CC” tendered by the Claimant, the Claimant was not the “Bursar” of the Defendants but Deputy Bursar as there was no substantive Bursar; the Claimant only became the Bursar of the 2nd Defendants on 4th May, 2015 as was borne in Exhibit “CD”.

And in conclusion it was at paragraph 5 of Exhibit “DC” that the recommendation of the Federal Ministry of Education if at all came to the fore when it stated therein, “Furthermore, you are to note that, it is not enough to stop the payment of security vote. It is directed that the excess money paid to the Vice Chancellor and the Registrar should be recovered and the Bursar should be sanctioned for gross incompetence”.

The above clear and unambiguous directive of the Federal Ministry of Education of 6th December, 2016 came after the Defendants have terminated the Claimant’s appointment on 31st October, 2016, almost two months before receiving the directive, the question one may be tempted to ask is what directives were the Defendants implementing?

That the directive of the Federal Ministry of Education was specific, clear and unambiguous in their directive to the Defendants on the action they should take on the Claimant, to wit sanctioned! And if the Federal Ministry of Education mean any other thing than sanction, including “termination” their letter would have expressly said so.

The Defendants have in paragraphs 19 and 20 averred that the Claimant was “served” with a letter of invitation to review the termination of his appointment along with others but hastily rushed to Court without waiting for the outcome of the “review committee”.

The question one may be tempted to ask is, do the Defendants have the power to “review” the directives of the Federal Ministry of Education? And was the Claimant hasty in seeking judicial redress? We venture to submit that the Defendants do not have the power and or authority to “review” the directive of the Federal Ministry of Education. Rather it is the Federal Ministry of Education that has the power to do so on decisions taken by the Defendants and directed at the 1st Defendant. See paragraph 1 of Exhibit “DC”, where it was remarked that,

“…and inform you that some of the actions you have so far taken are not acceptable and even the ones that are accepted are subject to confirmation”.

That the Claimant was not hasty and has pleaded so in paragraphs 31-33 of his Statement of Claim when he  averred that he has served the Defendants with his Solicitors’ letter of Demand, Exhibit “CL” which was not responded to before filing this action. And if the Defendants have at all invited him for any “review” of termination of his appointment such letter was not in evidence before this Honourable Court.That Exhibit “DC” clearly spelt out what the Defendants were directed to do and failed so to do, confirms that on the contrary it was the Defendants that were hasty in their decisions by taking the step they took on 31st October, 2016 before the directives of the Federal Ministry of Education could come on December 6, 2016.

Counsel submits that both the Claimant and the Defendants are at ad idem that he was appointed Bursar to the 2nd Defendants on 4th May, 2015 as averred in paragraphs 16-18 of his Statement of Claim. See paragraphs 4, 4- 5 of the Defendants Statement of Defence, wherein reference was made to the Federal University Kashere (Establishment) Act, 2015.

Counsel submits that it is above referred Federal University Kashere (Establishment) Act, 2015 that provided for the offices of all principal officers of the 2nd Defendants, including the office of the 1st Defendant and the Claimant. See Section 3(2) thereof and the First Schedule thereto which defines the roles and functions of principal staff of the Defendants, of which is one. That from the contents of the Claimant’s letter of appointment, his appointment for a Single term of five (5) year with effect from 4th May, 2015. By the combined effect of the Claimant’s letter of appointment and Section 3(2) of the Federal University Kashere (Establishment) Act, 2015, his employment is statutory, covered and governed thereby which he was disrupted from continuing as a result of termination thereof by the Defendants without being afforded a fair hearing.

Counsel submits that fair hearing is fundamental and where there is breach thereof, the resultant proceedings would be declared a nullity. See ADIGUN v. A.G. of OYO STATE [1987] 1 N.W.L.R. (Part 53) Page 678 @683-685 Ratios 26-35, Per Justices Obaseki, Eso and Karibi-Whyte JJSC,where they concluded that the breach of right of fair hearing, “..is not quantifiable and so incalculable injury. Hence the only remedy is to nullify the resulting proceedings”. Per Karibi-Whyte JSC @Ratio 35.

That the Claimant’s appointment being one with statutory flavour; Courts have times without number stated and restated that such acts of termination would not be condoned and condemnable. OLANIYAN v. UNIVERSITY OF LAGOS [1985] 2 N.W.L.R. (Part 9) Page 599.` hat the claim of the Claimant is not farfetched bearing the facts and circumstances leading to the termination of his appointment, and urge to so hold and grant the Claimant’s relief of reinstatement as Their Lordships held in OLANIYAN v. UNIVERSITY OF LAGOS (supra) Per Karibi-Whyte JSC @ 606-607 Ratios 34-36as the Claimant has also not accepted same.

The Defendants upon granted leave by the Honourable Court on the 3rd day April, 2019 raised two issues for determination, starting with their Issue One, to which they were contending that the Claimant’s claim is abuse of Court of process, but did not show how the Claimant by this action abused the process of the Honourable Court.In another breath the Defendants were contending in their submission that they were not the proper parties to be sued but the Federal Ministry of Education, forgetting that their letter of dismissal is predicated on the Condition of Service of the Defendants and not that of the Federal Ministry of Education.

The Defendants were trying to pin their actions on the Honourable Minister of Education forgetting that they were the ones that terminated the Claimant’s appointment and not the Honourable Minister or the Federal Ministry of Education.

The Claimant adopt the submission made thereon above and further submit that the Defendants have forgotten averring in their Statement of Defence, suggesting that they have “extended” the “arms” of review of termination of appointment of other staff but the Claimant did not heed to it. The question one may ask once again is, if they were not the ones that terminated the appointment of the Claimant but the Federal Ministry of Education, do they have the power to review same?

Counsel submits that what the Defendants are trying to do is what Your Lordship have stated and restated that parties should not approbate and reprobate at the same time. Here are the Defendants contending and submitting that it was the Federal Ministry of Education that terminated the Claimant’s appointment, but it was in another stating that the Claimant has refused to “appear” before for the “review” of his “termination.Counsel urge that the courtbe guided by the decision of the Supreme Court in NYAKO v. A.S.H.A. [2017] 6 N.W.L.R. (Part 1562) Page 347 @ 358-360 ratios 9 & 10and hold that the Defendants would not be allowed to approbate and reprobate by not sticking to one stance.

That the Defendants also raised and submitted in their issue for determination contemplating on their submission on their Issue Number One of whether the Claimant’s assuming but not conceding that it was not an abuse of Court and having regard to evidence led whether the Claimant is entitled to the reliefs sought?

It was the Defendants’ contention that in order for him to succeed, the Claimant must produce his terms of employment, which the Claimant did and to prove in what manner it was breached by the employer, which the Claimant also did by averring and deposing in his Statement of Claim and sworn written statement as a witness that he was appointment for a term of Five (5) years as a Bursar but was denied the right to enjoy the statutory terms of his employment therein by the Defendants did not afford him a hearing fair or foul before his appointment was terminated under the Defendants’ condition of service.

The Claimant adopts his submission on the above point and urge the court to hold that he has proven before this Honourable Court both through his written deposition as a witness in line with his Statement of Claim and the documentary evidence tendered as exhibits before this Honourable Court as submitted above.

The Defendants however, wrongly approached the remedies this Honourable Court could grant in circumstances like the instant case by relying and quoting the case of Noble Drilling (Nig). Ltd v. Edemekong (2010) All FWLR (Part 540) Page 1377 @ 1385 Paras B-C,when in fact the above referred case is clearly distinguishable with the Claimant’s case.

Counsel submitted that Honourable JusticeOputa, Karibi-Whyte et al of blessed memory have long since stated the Law in the case of OLANIYAN v. UNIVERSITY OF LAGOS(supra) to the effect that contracts with statutory flavour and where the parties to the contract did not agree to the termination by not accepting any payment and taking steps to challenge same are deserving of the equitable remedy of reinstatement to complete the remaining terms of one’s employment.

In conclusion, counsel urged the court to discountenance the submissions of the Defendants on this issue and hold that the Claimant has discharged the onus of proof placed on him and is entitled to all the reliefs sought by him as is contained in his Statement of Claim.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. The learned counsel for the defendant challenged the competence of this suit on the ground that the Federal Ministry of Education was not joined as a party. It is their contention that the appointment,setting up of the fact-finding committee that investigated the claimant and the termination of the appointment of the claimant was done by the said Ministry of Education. That the role played by the defendants named in this suit was the conveyance of the message of termination of appointment of the claimant and not more.

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