Uge Wilfred Igho -VS- Niger Delta University

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: NOVEMBER 1, 2019 SUIT NO: NICN/YEN/30/2018

BETWEEN:

UGE WILFRED IGHO ………………………………CLAIMANT

AND

NIGER DELTA UNIVERSITY (NDU) ……………………………. RESPONDENT

REPRESENTATION

Mr. Amos Engman Esq for the claimant.

Mr. O.G. Akpagra Esq for the respondent.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant initiated the process of this action by way of an Originating Summons dated 20^th July, 2018 and filed on the 2^nd day of August, 2018. He raised two questions for determination as follows:

Whether the Respondent can disengaged (sic) the Claimant from service being an employee who is on study leave?

Whether the action of the Respondent particularly the notice of disengagement of the Claimant did not offend the Conditions of Service and/or the Law establishing the University?

It was upon these questions that the Claimant sought the following reliefs from this Court:

A DECLARATION that the Respondent have no right whatsoever from disengaging the Claimant from service being an employee on study leave.

A DECLARATION that Respondent notice of disengagement of the Claimant offends the Conditions of Service and/or the Law establishing the University.

AN ORDER of court to reinstate the appointment of the Claimant as an employee of the Respondent.

The sum of Fifty Million Naira only representing general damages or inconveniences suffered by the Claimant following the disengagement of his service by the Respondent.

AND FOR SUCH FURTHER ORDER(S) as this Honourable (sic) may deem fit to make in the circumstances of this case.

The Claimant accompanied his Summons with an Affidavit, attaching 11 Exhibits (EXHIBITS A1 – A11) and a Written Address.

The Respondent entered a Conditional Appearance on the 15^th day of August, 2018 before filing its Counter Affidavit dated and filed on the 30^th of August, 2018

CLAIMANTS’ CASE IN BRIEF

The Claimant states as a fact that by a Letter of Offer of Temporary Appointment and eventually a Confirmation of Appointment dated 27/07/2004 and 5/03/2007, respectively; he became an employee of the Respondent. According to the Claimant, his appointment was confirmed to retiring age with effect from 4/08/2006, and during the period, he was twice promoted by the Respondent (EXHIBITS A5 and A6). The Claimant further states that he applied for and was granted study leave, which was also extended by the Respondent, allowing him to resume work at the University on the 02/09/2018.

During the pendency of the study leave, the Claimant was issued with a notice of disengagement from service dated 07/05/2018 (EXHIBIT A9), which he protested against but was never recalled by the Respondent. The Claimant avers that he is 46 years old and was not due for retirement. He has never been queried by the Respondent for any form of misconduct nor has he been suspended during his fourteen (14) years of service at the Respondent institution, prior to the alleged disengagement from service.

In his Further Affidavit, the Claimant, in reaction to the Counter-Affidavit filed by the Respondent, aver that he worked with the Department of Exams and Records, and the said department has not been abolished. He states that he is entitled to reinstatement as his department was not affected by the re-organization. The Claimant also states that he signed a legal bound to return to the university after his study leave elapse and as such he cannot be disengaged from the university. He believed that the 3 month’s salary paid to him was the arrears owed to him by the University and not otherwise. He denies that the re-organization was done in conjunction with the unions in the university, as they were all in opposition to the said action.

THE SUBMISSION OF THE CLAIMANT

In his submission, the Claimant reinstates his questions for determination, which he sought the leave of Court to argue same together. Learned Counsel to the Claimant submits that the specie of employment that exists between the Claimant and the Respondent is one coated with statutory flavour as it is guided by the Niger Delta University Condition of Service, 2016 (CONUASS, CONUSSS 06-15) and the Niger Delta University Law, Cap N3, Laws of Bayelsa State, 2006.

Counsel contends that the provisions of Rule 7.1(i) and (ii) of the Niger Delta University Condition of Service Rules (“The Rules”) are clear and unequivocal; therefore any infraction on the provisions is bound to be declared null and void. That the Claimant is just forty-six years and has not attained the required age for retirement. Counsel maintained further that the relevant provision for the dismissal or termination of employment is that which is stipulated in Rule 3.2 of the Rules.

According to the Claimant, the implication of the statutory provisions of Rules 3.2 is that he is entitled to reinstatement having not attained the age of retirement. Consequently, the Claimant challenges the notice of disengagement issued to him by the Respondent, stating that it does not conform to the provisions of the Rules. Counsel also referred to Rule 5.7(ii) of the Rules to submit that the Claimant took all the necessary and statutory steps regarding his study leave which was granted to him by the Respondent. He concludes by stating that his disengagement from service offends the provisions of the condition of service rules and the enabling law regulating the Respondent.

THE CASE OF THE RESPONDENT

The Respondent averred that the Claimant was not dismissed from service on the ground of age or on disciplinary grounds but was disengaged on the grounds of abolition of office arising from re-organization in accordance with the Condition of Service, applicable to the Respondent. The Respondent states also that the re-organization became necessary after a policy of restructuring was made by the Bayelsa State Government, which resulted to the cutting down of the funds due to the Respondent.

That it has even paid the Claimant the sum of money due to the Claimant, and would pay the remaining sum upon documentation and qualification. The Respondent avers that the re-organization exercise was carried out by the Governing Council of the Respondent University with the support of all the unions in the university.

THE SUBMISSION OF THE RESPONDENT

The Respondent adopted the issues for determination formulated by the Claimant in his final written address, which it argued as follows:

According to Learned Counsel on behalf of the Respondent, the Claimant rightly argued that his employment enjoys statutory flavour and the relevant statute being the Niger Delta University Condition for Service, 2015 (CONUASS, CONUSS 06-15). Counsel particularly cited Rules 7.1(i) and (ii), 3.2(f) (i)-(x), (g) and 5.1(ii). He contends that it is obvious that the Parties herein intended to be bound by the terms and conditions as contained in the said Condition of Service.

In his submission, Counsel maintained that Section 18 of the Niger Delta University Law relied upon by the Claimant is inapplicable in the circumstance of this suit as the instant case does not deal with discipline. He further states that the issue does not also have to do with termination or dismissal on the grounds of misconduct or inability to perform the functions of office or employment. Counsel argued that the disengagement of the Claimant was as a result of re-organization as encapsulated in chapter 7, paragraph 7.10 (page 92) of the Conditions of Service Rules and upon which the Claimant has already been paid 3 month’s salary in lieu according to the said Rules. He argued finally that the disengagement was done in accordance with the law, urging the Court to dismiss the suit for lack of merit.

COURT’S DECISION

This Honourable Court is called upon to determine the questions as contained on the face of the Originating Summons. The questions which are replicated hereunder form the basis upon which this suit was brought. After perusing the averments and submissions made by the respective Learned Counsel to the Parties, it is without doubt that the resolution of the dispute between the Parties herein turns on the construction/interpretation of the Regulations Governing the Conditions of Service for Senior Staff, 2015; particularly Chapter 7 thereof.

Now I have coined a sole issue for determination, which is similar to the question raised by the Claimant and adopted by the Respondent, that is:

Whether from the intent and letters of the Statutes governing the Respondent institution, there was total compliance by the Respondent to justify its actions towards the Claimant.

The Respondent had, in its Written Address, contended that the Claimant abandoned the first question which he raised for this Court to determine. This Court seems to share the same position, hence the sole issue formulated by this Court.

On the authorities, it is trite that after setting down issues for determination, it becomes the responsibility of the Party to take further steps in proffering arguments on each issue raised so as to substantially sway the mind of the Court to its favour. Learned Counsel had sought the leave of this Court to argue the two issues he raised together, yet his argument on the issues do not suggest any argument whatsoever on the first issue he raised. He totally abandoned the first issue but went on to argue on the status of his employment as well as the various methods by which a staff may be disciplined.

This Court is not to be bordered with performing an anatomic operation on the arguments by picking into the Claimant’s argument to ascertain where arguments on the first issue were proffered. That will be unnecessary. Even if that was possible, needlessly burdening this Court with the duty of disserting the Claimant’s argument would raise dust that suggests that the Court has taken sides amounting to injustice. Issues for determination formulated, whether in a brief of argument or a written address, and on which no arguments are proffered, is deemed abandoned. ABUBAKAR v STATE (2014) LPELR – 24504 (CA); ALI v STATE (2012) 7 NWLR (PT.1299) P. 209; AGBO v STATE (2006) 6 NWLR (PT.977) P. 545

In considering the sole issue distilled by this Court, it is necessary to reiterate some basic principles that are relevant here. Firstly, it is an elementary principle of law that Parties are bound by the terms or stipulations of the contact which they willingly and freely entered into. AFRICAN INTERNATIONAL BANK LIMITED v INTEGRATED DIMENSIONAL SYSTEM LIMITED (2012) 17 NWLR (PT.1328) P.1. It is not in contest between the Parties that the terms governing the employment of the Claimant with the Respondent are embodied in the Regulations Governing the Conditions of Service for Senior Staff and the Niger Delta University Establishment Law. These terms constitute the contract that governs the relationship between the Parties, and in construing the relationship between the Claimant and the Respondent, this Court is bound to confine itself to the ordinary words and meaning derived from the said documents. See IBAMA v SHELL PETROLEUM DEVELOPMENT CO. (NIG) LIMITED (2005) 17 NWLR (PT.954) P.364; MOMOH v CBN (2007) 14 NWLR (PT.1055) P. 504.

This Court treats as sacred the terms of the Statutes as one which were freely entered into by the Parties herein, as Parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. It follows thus that where any question arises, as is apparent in this material particular, the terms in the said documents which constitutes the contract are the unwavering guide to its interpretation.

At all material times to this suit, the Claimant was an Assistant Chief Executive Officer with the Department of Exams and Records in the services of the Respondent. He was born on 5^th December, 1972 and by chapter 7 of the Conditions of Service would retire at the age of 65 years. By a Notice of Disengagement from Service letter dated 7^th May, 2018, the Claimant was purportedly disengaged from service with effect from the 2^nd day of May, 2018. It was that notice which caused the Claimant to come before this Court seeking the reliefs contained in his originating summons.

An appraisal of the pleadings and arguments of the Parties shows some conflicts as to the nature of the issue at hand. This Court is however persuaded to hold that the issue is one of premature retirement from service due to the purported re-organization other than termination of employment simpliciter as contemplated by the Claimant.

It is without doubts from the pleadings that the Respondent comes under chapter 7, rule 7.10 of the Conditions for Service, which refers to abolition of office, to justify its action, however, unlike in the realm of termination of employment where the burden of proof naturally falls on the shoulders of the employee who claims that the termination of his employment was wrongful, in the instant case, the burden of proof rests on the employer who prematurely retires an employee to show grounds for such action. Indeed, the action to retire an employee before his/her retirement age is one which could be due to various reasons including redundancy, re-organization, ill-health, unproductivity, or even upon contractual or regulatory powers conferred on and exercised by the employer, it thus becomes crucial that where an employer relies on one or more of these reasons, he is expected to show facts or the law to justify such action to retire the employee, particularly where the employment is one coated with statutory flavour. The employer, who is the Respondent in this case, must satisfy the Court on this. See OLANIYAN VRS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) PG 683; M. BUSARI VRS EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 599) at PG 376.

The Respondent has failed to provide sufficient facts or evidence to justify the reason for their action. The Respondent failed to exhibit any guideline or directive or even the minutes of the general meeting of its Governing Council, before this Court relating to the nature of the said re-organization, that is, the office or offices that were affected by the re-organization. In any event, Rule 7.10 of the Conditions for Service is specific on its terms, especially as it stipulates that the re-organization revolves around the abolishing or scrapping of the office and the incumbent cannot be offered a suitable alternative post. The closest to a statement of fact proffered by the Respondent to justify its action and reliance on the said provision, is as captured in paragraphs 9 – 12 of its Counter Affidavit.

From the averments therefrom, it would appear that the Respondent’s justification for ‘disengaging’ the Claimant was based on the purported reduction of the monthly subvention due to the Respondent by the Bayelsa State Government, which led to the re-organization of the university ‘in line with current financial realties’.

This reason, unfortunately, is unsatisfactory to say the least. Having stated that the forced retirement of the Claimant was due to staff restructuring which led to the abolition of the office where the Claimant works, the Respondent ought to have taken further steps to lead credible evidence to show that indeed the said office where the Claimant worked had been abolished or scrapped. Also, no information was proffered by the Respondent as to the efforts made in reassigning an alternative portfolio to the Claimant after the alleged abolition of his office. In fact the notice of disengagement betrays the otherwise intent of the Respondent regarding their action. It reads in part:

“NOTICE OF DISENGAGEMENT FROM SERVICE

I am directed to inform you that the University Governing Council at its 87^th meeting (emergency) held on Thursday April 19, 2018 decided to reorganize the staff structure of the university in line with the Conditions of Service.

CONSEQUENTLY, YOUR SERVICES ARE NO LONGER REQUIRED BY THE UNIVERSITY FROM MAY 2, 2018.”

The intent of the notice is immediately apparent from its content which suggests that the Respondent clearly terminated the services of the Claimant rather than called upon him to retire as prescribed by the Conditions for Service. The Rules do not provide for the re-organization of the staff structure of the Respondent University. I also do not find anywhere in the Rules, which allows the Respondent to disengage with such immediate effect the services of an employee, due to the re-organization without first calling on the would-be affected staff to retire. It is only justiciable that before the Claimant is deprived of the remaining 19 years of service, he ought to be informed of the reason and given the opportunity of controverting the removal of that right.

In the construction of an agreement between Parties, the cardinal principle is for the Court to give an interpretation which is consistent with the object and intent of the entire document. See ODUTOLA HOLDINGS LIMITED v LADEJOBI (2006) 12 NWLR (PT.994) P.341; NNPC v AMINU (2013) LPELR-21396 (CA). This Court is not satisfied with the submissions and evidence adduced by the Respondent.

Furthermore, by the provisions of Rule 7.1 (i) and (ii) of the rules and regulations governing conditions of service of staff of the university, 2015 which provides that;

“i) All members of staff on pensionable appointment are eligible for pensions and gratuities in accordance with the Federal Government Pension Scheme for public servants applicable to the state.

(a) Academic staff in the professorial cadre shall retire at seventy (70) years.

(b) Academic staff below professorial level shall retire at sixty five (65) years.

By Exhibit A11 the claimant is just forty six (46) years of age and therefore cannot be due for retirement in accordance with the provisions of conditions of service relied upon by the respondent in disengaging the claimant from service. That said, the defendant in paragraphs 9, 10, 11, 12 and 13 of the Counter Affidavit averred that the appointment of the claimant was terminated due to financial challenges being faced by the defendant as a result of that the defendant in consultation with all the trade unions in the university re-organize its work force and offices in accordance with the provisions of the conditions of service applicable to all categories of staff. The defendant also draws the attention of this court to the provisions of Chapter 7 Paragraph 7.10 at Pg 92 of the conditions of service covering the claimant contract of service.

Paragraph 7.10 provides as follows:

“If due to re-organization within the university, it is considered necessary to abolish or scrap an office and the incumbent can not be offered a suitable alternative post, he/she shall be called upon by the council to retire and shall be entitled to, in addition to awards payable under 7.2 above, a compensation of twenty five (25%) percent of pension and gratuity for premature retirement: provided that his total percent of his salary as pension or Three Hundred (300%) percent as gratuity”

I have critically looked at these two provisions as contained in the condition of service, and its apparent that the claimant’s employment cannot be determined or terminated pursuant to Rule 7.1 (c), this is because the claimant being a non-academic staff can only retire at the age of sixty five (65) years.

The defendant made heavy weather on the fact that based on the paucity of fund the council decided to re-organize its workforce and offices, but refused to supply to this court the minutes of the council buttressing to this fact. And its trite that a party who is in possession of a document decides to withheld same presupposes that, that piece of evidence if tendered will be unfavourable to the defendant. See FAMAKINWA VRS STATE (2016) 11 NWLR (PT. 1524) PG 538. See also section 167 (d) of the Evidence Act 2011.

Furthermore, Rule 7.10 of the conditions of service stated that if the incumbent of the office scrapped or abolished shall be called upon by the council to retire and also be compensated. And this can only happen if the incumbent of the office scrapped or abolished cannot be offered a suitable alternative post. There is nothing also before this court adduced by the defendant to show that the claimant was called upon by the council nor was there any evidence led to show that there is no any suitable alternative post to be given to the claimant.

In disengaging the Claimant by a notice dated 7^th May with effect from the 2^nd of May, 2018; the Condition of Service was not complied with particularly as the Condition of Service did not sanction such method of retiring an employee. The fact that the Claimant had received three (3) months of salary in lieu does not validate the unlawful process. A void retirement process cannot be validated by the acceptance of three (3) month’s salary in lieu of notice. MILITARY ADMINISTRATOR OF BENUE STATE v ULEGEDE (2001) 17 NWLR (PT.741) P.194; ALHASSAN v A.B.U ZARIA (2010) ALL FWLR (PT.539) P.962. The reasoning of the Courts is to the effect that if the termination or retirement was wrongful, it remains so and such defect cannot be remedied by the subsequent act to the injured party.

I therefore resolve the issue in favour of the Claimant for the avoidance of doubt and for all the reasons enumerated above. I hereby declared as follows:

(a) The respondent’s notice of disengagement served on the claimant offends the conditions of service 2015 that regulates the contract of employment and same is hereby set aside.

(b) I hereby ordered the respondent to reinstate the claimant in the position in which he was before his unlawful disengagement.

The claimant having been ordered to be reinstated, and placed him in the position in which he was before his unlawful disengagement, he is not entitled to any damages.

See CO–OPERATIVE AND COMMERCE BANK (NIG) LTD VRS OKONKWO (2001) 15 NWLR (PT. 735) 114 at 134.

All terms of this judgment are to be complied within 30 days from today.

I so hold.

Judgment is hereby entered accordingly.

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE