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National Industrial Court

ENGR. AHMED MUHAMMED GUSAU & 2 ORS -VS- FEDERAL POLY KAURA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THURSDAY THE 28TH DAY OF MARCH, 2019

SUIT NO.NICN/SK/06/2018

BETWEEN

  1. ENGR. AHMED MUHAMMED GUSAU
  2. ALH. SALISU ABUBAKAR ……………………………………….…. CLAIMANTS
  3. ABUBAKAR LADAN ZURMI

AND

  1. FEDERAL POLYTECHNIC KAURA NAMODA
  2. THE COUNCIL FEDERAL POLYTECHNIC KAURA NAMODA
  3. SANUSI UMAR K/SAURI                                 …………………………. DEFENDANTS
  4. ALHASSAN GARBA MUSA KAURU
  5. JOHN ARUWA

 

REPRESENTATION

  1. C. Shaka Esq. for the claimants.
  2. T. Aza Esq. for the defendants.

 

 

JUDGMENT

  1. INTRODUCTION

This judgment borders on the lawfulness or otherwise of the removal of the claimants from their offices as Deputy Rector, Registrar and Bursar of the 1stdefendant respectively. The claimants took out a complaint against the defendants on 9/5/2018 accompanied by all the processes required by the Rules of this Court. The defendants filed a joint statement of defence on 7/8/2018 and an amended statement of defence on 25/1/2019.

 

The claimants’ prayers are lengthy and similar, the differences being in the post of each claimant, the date of appointment and tenure of each claimant. Reliefs 1(A-L) relate to the 1st claimant. Reliefs 2 (A-L) relate to the 2nd claimant while reliefs 3 (A-L) relate to the 3rd claimant. By way of summary, the claimants pray for:

  1. Declarations that the removal of the Claimants from their offices by the 2nd Defendant Council for negligence by failing to discharge the functions of their offices is unconstitutional, unlawful, illegal, ultra vires powers of 2nd Defendant Council, null, void and of no effect whatsoever;
  2. An Order quashing/setting aside sundry actions and decisions of the 2nd Defendant Council, including the 2nd Defendant Council’s letters placing the Claimants on compulsory leave, 2nd Defendant Council’s Panel of investigation letters of invitation to the Claimants, proceedings and report of the 2nd defendant council’s Panel of investigation and the decision of the 2nd Defendant Council purporting to remove the Claimants from office contained/conveyed in 2nd defendant Council’s letters dated March 10, 2018;
  3. Orders of injunction restraining the Defendants:
  4. Order of reinstatement of the Claimants to their respective offices.
  5. Damages and
  6. Costs.

There is also an alternative prayer for each claimant as follows:

In the alternative to (e),(f),(g),(h),(i) & (j):

  1. The sum of Nl00,000,000.00 (One Hundred Million Naira) as general and punitive/exemplary damages for impunity, flagrantly breaching the Claimant’s contract of employment and maliciously imputing/insinuating negligence and failure to discharge the responsibilities of their offices as Deputy Rector, Registrar and Bursar respectively of the 1st

 

  1. FACTS OF THE CASE
  2. The claimants were Deputy Rector, Registrar and Bursar respectively of the 1st Defendant.
  3. The claimants were before their appointments as such, senior academic staff, and senior administrative staff of the 1st defendant.
  4. The 1st claimant was appointed as Deputy Rector on 22/6/2017 for a term of two years with effect from 21/6/2017 to expire on 20/6/2019
  5. The 2nd claimant was appointed as Registrar on 1/5/2010 for a term of five years with effect from 27/4/2010 and on expiration of five years, he was further appointed for another five years on 19/12/2014 with effect from 27/4/2015 to expire on 26/4/2020
  6. The 3rd claimant was appointed as Bursar on 22/4/2015 for a term of five years with effect from 21/3/2015 to expire on 20/3/2020.
  7. On 25/1/2018, the claimants were placed on compulsory leave.
  8. On 16/2/2018, the claimants were invited to appear before the council panel of investigation.
  9. On 10/3/2018, the claimants received letters removing them from their respective positions, while the 1st claimant was by the same letter redeployed to his department, Mechanical engineering, the 2nd and 3rd claimants were by the same letter of removal informed that they will be redeployed to an academic department relevant to their qualifications which will be communicated to them, this was later communicated to them on 8/3/2018.
  10. The 3rd, 4th and 5th defendants were subsequently appointed to replace the claimants.

The claimants accordingly instituted this action challenging the decision of the defendants and seeking for a reversal thereof.

 

  1. CASE OF THE CLAIMANTS

The pleadings of the claimants by way of summary are as captured in the facts of the case above. The three claimants testified for themselves at the hearing. Their testimonies were all in line with the pleadings.

CW1 was the 1st claimant, Engr. Ahmed Mohammed Gusau. He testified in his 42 paragraph witness statement on oath that he was at all material times, and still is, a Senior Academic staff of the 1st Defendant and have attained the position/rank of chief lecturer in the department of Mechanical Engineering of the 1st defendant.  That by a letter dated 1/4/2016 and titled APPOINTMENT AS ACTING DEPUTY RECTOR OF THE POLYTECHNIC”  he was Appointed Acting Deputy Rector of the 1st Defendant, a position he held until 21/6/2017 when he was appointed Deputy Rector. That he held this position and discharged the functions of his office and duties assigned to him from time to time satisfactorily/creditably and without blemish until 27/1/2018 or thereabout when he received a letter from the 2nd defendant Council under the hand of one Professor Kingsley D. Alagoa, Chairman of the 2nd defendant Council placing him on purported compulsory Leave. That the said letter informed him that the 1st Defendant was bedeviled by series of unspecified crisis leading to threats to lives of Management staff and members of the  1st  defendant community and directed him to proceed on compulsory leave pending the outcome of the 2nd  defendant Council’s investigation into an unspecified matter. The claimants caused a letter of complaint to be written to the defendants by their counsel which the defendants did not heed. That by a letter dated 16/2/2018 titled “LETTER OF INVITATION” under the hand of one Dr. Aminu Yusuf as Secretary, “Council Panel of Investigation” on behalf of the 2nd defendant’s Council, he was invited to appear before a panel of investigation constituted by the 2nd defendant Council.

That as intended by the 2nd defendant Council, he had no idea whatsoever respecting the subject matter, the comp1aint or allegations, if any, the purpose and person intended to be investigated in the proceedings to which he was by the letter aforesaid  invited to attend but he dutifully attended on 19/2/2018. That the proceedings before the said Panel when he appeared before it consisted largely of sundry questions on virtually all aspects or activities in the 1st  defendant institution being asked by the Chairman and members of the said Panel which he was required to answer instantly. That throughout the proceedings the Panel of investigation neither  orally nor in written inform him of any allegation or complaints of any wrong doing that was committed by him, nor informed him that his removal from office as Deputy Rector was in contemplation by the 2nd  defendant Council. That he also did not have the benefit of meeting, hearing, confronting, cross examining any person that was called to testify before the said panel and seeing, examining or inspecting any document presented to or relied upon by the panel throughout its investigation. He was not asked or afforded opportunity to defend himself against any allegation by the panel throughout its proceedings.  That about 10th  March, 2018, he received another letter dated same date under the hand of Professor Kingsley D. Alagoa, Chairman of the 2nd defendant Council titled “WARNING AND REDEPLOYMENT TO MECHANICAL ENGINEERING DEPARTMENT”  by which he was removed from the position of Deputy Rector and redeployed to his department. That by the terms of the letter dated 22/6/2017 appointing him Deputy Rector as aforementioned, he is  entitled to hold and perform the functions of the said office for a term of two (2) years with effect from 21st June, 2017 and terminating on 20th June, 2019, subject to renewal for another term of two (2) years. The office also entitles him to sundry allowances of N30,000.00 (Thirty Thousand Naira) only over and above the salary and allowances ordinarily payable to him as a Chief lecturer of the 1st Defendant. That he may only be removed from his office as deputy Rector before the natural expiration of the time or period reserved for the said appointment if a case of misconduct or inability to perform the functions of his office is established against him following due process as stipulated under section 12 of the Federal polytechnics Act 1979 as well as paragraph/regulation 8.4(a),(b) & (c) of the Manual containing the condition of service of staff of the 1st defendant. That the defendants did not comply, adhere, follow or observe the mandatory procedure stipulated by the extant law and the Manual in  issuing notice, purporting to place him on compulsory leave, constituting a committee of investigation, inviting  him to attend before its Panel of Investigation, making representation in his defence and the decision purporting to remove him from his office as Deputy Rector and redeploying him to the Mechanical Engineering department of the 1st  Defendant vide its letter of 10/3/2018 and has wrongfully or unlawfully frustrated, truncated and terminated his appointment as Deputy Rector. That one Eng. Ahmed Abubakar Lugga was also removed as Rector and he was supposed to act as Rector but the 3rd defendant was appointed instead. That his removal was malicious, wrongful, unlawful, unconstitutional, ineffective and liable to be set aside as per the reliefs set out in the Statement of facts. That on the premise above he was constrained to join other Claimants herein to engage the services of solicitors and jointly incurred sundry costs for filing, documentation and service of process amounting to N3, 750,000.00 (Three million, Seven Hundred and Fifty Thousand Naira) to seek redress in court.

 

EVIDENCE OF 2ND AND 3RD CLAIMANTS.

The evidence of the 2nd and 3rd claimants who testified as CW3 and CW2 respectively are in all material facts the same as that of the 1st claimant except for the differences in their previous positions before their appointments, positions appointed to, dates of appointment, tenure and the length of their unexpired tenure and redeployment after removal as earlier shown above in the facts of the case which shall not be necessary to reproduce herein.

 

EXHIBITS TENDERED

The claimants’ counsel tendered 17 documents from the bar with the consent of defendants’ counsel; these documents were admitted and marked as exhibits CW1 to CW17. These exhibits were identified by the claimants’ witnesses in relation to their testimonies on them. In particular, the 1st Claimant (CW1) led evidence in connection to exhibits CW1- CW6, 2nd claimant (CW3), led evidence in connection to exhibit CW1 and exhibits CW7-CW10, and lastly the 3rd claimant (CW2), led evidence in connection to exhibit CW1 and exhibits CW11-CW17.

These exhibits will be referred to as the need arises in the judgment.

 

CLAIMANTS’ TESTIMONIES UNDER CROSS EXAMINATION.

Under cross examination, CW1 testified that his invitation by the 1st and 2nd defendants per exhibits CW5 was without reason. Exhibit CW4, did not state any reason for the compulsory leave. There were demands by ASUP, NASU and SSANIP at the time of the facts leading to this case, there was no any crisis on the ground. There was no any “vote of no confidence” on the management by the three pivotal unions. He did not ask for any further clarification on exhibit CW5. He is a member of ASUP. He cannot remember attending an emergency congress meeting of 2nd defendant on 18/1/2018.

CW2 testified under cross examination that Exhibit CW14 did not tell him the reason for the invitation. By his counsel’s letter as in paragraph 14 of his deposition, he was aware of a complaint against the management.

CW3 testified under cross examination that he did not know why the 1st and 2nd defendant invited him to an investigative panel. In view of exhibit CW9, it is correct for him to say he had no idea why he was invited. The action taken on the claimants were also taken on the Rector and the Liberian. There are three major staff unions in the polytechnic, ASUP, SSANIP and NASU and all of them are not represented in the 2nd defendants council.

  1. CASE OF THE DEFENDANTS.

The defendants called one witness by name DR AMINU YUSUF who testified as DW1. His testimony was in line with the statement of defence dated 25/1/2019 as follows;

That he knows as a fact that what the Claimants said in paragraphs 1,2,3,4,5,6,7,8,9, 10, 15, 17, 18, 20, 23, 24, 31, 32, 36, 37, 38, 41, 42, 43, 48, 49, 51, 55, 58, 64, 66, 68, and  73, of their statement of facts is to a large extent correct. That the 4th defendant is not the Secretary to the 2nd defendant, but rather himself, is presently the Secretary to the 2nd defendant. The Claimants did not conduct their duties satisfactorily, that was why there were multiple complaints from all the staffs of the school, under the auspices of three major Unions called ASUP, SSANIP and NASU. That, even though the Claimants, all appeared before the panel set up by the 2nd  defendant, they were being economical with information, which only submission from the Unions, contractors, store keeper, departmental heads, etc, that reveal that the Claimants with the erstwhile Rector were collectively  mismanaging the 1st  defendant. That the mismanagement by the claimants together with the erstwhile Rector led to all the organs of the school passing a vote of no confidence on them leading to the letters of compulsory leave to the claimants and the setting up of a panel of investigation before which the three major unions submitted their allegations and furnished the panel with information regarding their allegations.

That the Claimants were equally invited, to answer the allegations, thus it is not true that they were not aware of any accusation against them, and it is also not correct that they were not allowed to defend themselves, as questions were put to them, and they never made any objection to the proceeding at the panel. That after receiving submissions and counter submissions from the affected persons and the 3 major unions, the panel set up by the 2nd defendant, submitted its report through his hand as the Secretary and the 2nd defendant in the absence of any challenge on the panel’s procedure, studied same and deliberated over same, and were convinced that the claimants were indicted, on misconduct.  That similarly as part of the 2nd defendant’s decision, all the Claimants were redeployed, some of which were redeployed to their former departments with their pay intact, all of which have without appealing the decision of 2nd defendant, notify the 2nd defendant of their resumption to duty. That as a result of the above facts, it is his conviction that the Claimants’ suit is an afterthought, to frustrate the 2nd defendant’s aim to curtail the breakdown of law and order in 1st defendant. That he knows as a fact that, the Claimants’ removal was indeed legal as every guidelines of the 1st defendant was followed to the letter.

The defendants tendered 10 documents which were admitted and marked exhibits DAY1 to DAY10. These exhibits will be referred to as the need arises in the judgment.

DEFENDANTS’ TESTIMONY UNDER CROSS EXAMINATION.

Under cross examination, the defendants’ witness testified, among other things that the 4th defendant is now the Acting Registrar and secretary of the 2nd defendant and he performs all the functions of a substantive registrar. Exhibit CW1 is the staff manual. The 1st claimant was a chief lecturer; he is now a principal lecturer as a punishment and as a result, his salary grade level has reduced from CONPACASS 9 to CONPACASS 8.The 2nd and 3rd claimants were and are senior staff of the 1st defendant and they were removed as Registrar and Bursar and redeployed to academic departments relevant to their field of studies. Their salary grade levels reduced because their placement was a demotion. The claimants have obeyed the directives and resumed their demoted positions. Before the letter of compulsory leave,(exhibits CW4,CW8 and CW13) the council did not give the claimants any notice in writing informing them of any allegation against them. Exhibits CW5, CW9 and CW14 (letters of invitation) did not contain the allegations against the claimants. The claimants were not present when the complaints in exhibits DAY1, DAY2 and DAY3 (complaints from ASUP, SSANIP and NASU.) were presented to the council, nor were they present when these exhibits were presented to the panel of investigation. The complainants made some other oral presentations before the panel in the absence of the claimants and the claimants were called and interviewed thereafter. All the claimants did not appear before the panel on the same day. The Unions representatives were not present when the claimants appear before the panel so they did not confront each other. When the claimants appear before the panel, we did not give the claimants exhibits DAY1, DAY2 and DAY3, we only asked them questions from these exhibits and concerning the oral submissions made by the unions. The claimants were not there during the face to face interactions and visits or investigations in paragraphs 1-5 on pages 2 and 3 of exhibit DAY 8. There was no joint council and academic board panel of investigation in relation to this matter. By exhibits CW6, CW10 and CW16, (letters of removal) the claimants were removed on grounds of negligence of duty.

  1. FINAL SUBMISSION OF DEFENDANTS’ COUNSEL

The learned B.T Aza Esq. of counsel to the defendants submitted that the claimants have failed to make out a case on the balance of probability as required by section 34 of the Evidence Act and then proposed to argue his lone issue under three arms as follows;

  1. Whether the action of the 1st and 2nd defendants was not in line with Section 17 (1) of the Federal Polytechnic Act.
  2. Whether the 1st and 2nd defendants had no basis by exhibits DAY5-DAY8 to remove the Claimants and redeploy them to Academics?
  • Whether the Act creating the 1st defendant, has empowered this Court (outside judicial review) to check/validate the decision of the 2nd defendant apart from those stated in Section 26 of the Act?

Counsel submitted that claimants seems to put so much weight in the claim and evidence in Court on the fact that adequate notice was not given to them as required by section 17(1)(a) of the Act (reproduced in Exhibit CWl), we conceded (sic) that the information on the notice to the claimants to appear was inadequate , but by exhibit DAY4, authored on the claimants instruction, my lord will agree with us that the claimants cannot in all honesty claim they were not aware of the reason they were invited to 2nd  defendant’s panel after informing the 2nd defendant almost a month earlier that they are aware of complains from Staff unions of their “misconduct” and “mismanagement”.

Counsel submitted further that it is also long settled in law that an employee can justifiably be removed by employer on grounds of Misconduct (which the Act also add inability to function), even if such a person is on a fixed term of employment as the claimants. See COLLEGE OF EDUCATION, EKIADOLOR-V- MRS E.O .OSAYANDE, (2010) 6 NWLR (PT.1191) 424@449 .

That the defence material pleadings were unchallenged and ought to be relied upon. See MOBIL-VS- MONOKPO (NO.2) (2001) FWLR (PT, 78) 1210.  That the defendants stated that there were Complaints from all the staff of the school, through their 3 pivotal unions, this the Claimants did not challenge. That the defence lone witness was unshakable, as he illustrated as a member of the 2nd defendants investigative panel, how they arrived at their decisions, and the fact that the decision was adopted via Exhibit DAY9, this evidence too were never discredited.

Finally, on fair hearing, learned defendants’ counsel submitted that there is a difference between an administrative panel and a Court, as the claimants wanted by their pleading to have been allowed to have an interface with their accusers, as it is done in a trial Court, this is not possible because no one is formally accused, as it is not a criminal proceeding. In essence, it is a fact finding inquiry. SEE BARGHA-AMANGE V- ADUMEIN (2016) 13 NWLR (PT.1530) P.349. And it is to that extent that the findings and decision of such panel, subject to the review of the body/government that set it up, is binding on the parties concerned. See MOMOH V UMORU (2011) 15 NWLR (PT.1270) P,217.

Learned counsel then urged the Court to dismiss the claim with cost.

It is to be noted that counsel did not eventually address his third proposed arm challenging the jurisdiction of this Court; it is deemed abandoned and I so hold.

 

  1. FINAL SUBMISSION OF CLAIMANTS’ COUNSEL.

Learned J.C.Shaka Esq. of counsel to the claimants, in his final written address, started by admitting that the burden of proof is on the claimants. That when oral evidence exists side by side with documentary evidence on a fact in issue, documentary evidence is used as a hanger on which to assess the oral evidence before the court .See KIMDEY&ORS V MILITARY GOV.OF  GONGOLA STATE & ORS (1988) 2 NWLR Pt. 77. P.445. The statement on oath of CW1,CW2 and CW3, the oral evidence elicited under cross examination by the defence of these witnesses is consistent and affirmed or corroborated by Exhibits CW1, CW4,CW5, CW6, CW8, CW9, CW10, CW13, CW14 & CW16 before the Court.

Counsel submitted that a combined reading of section 12(l)(a) & (b) of the Federal Polytechnics Act, as amended and  regulation 8.4(a) & (b) of  Exhibit CW1 (Staff Manual of the 1st defendant) before this court requires, as a first step in the course of exercising disciplinary powers over Claimants, that the 2nd  Defendant shall  inform the claimants, presumably in writing being official business, of any allegations or complaint against them that might  lead to their removal from office and afford them opportunity to make representation to it in writing concerning same.

That the evidence before the Court through CWl, CW2 and CW3 as well as DW1 under cross examination shows that these prescriptions were not complied with by the defendants. The Claimants were neither informed of the complaints by ASUP, NASU, SSANIP, etc. (i.e. Exhibits DAY1 DAY2 and DAY3) respectively nor given copies to enable them react to same. These complaints by whatever name called were ideally the originating processes to the disciplinary proceedings commenced by the 2nd defendant’s Panel of Investigation in the course of effecting the removal of the claimants from office.

That Section 12 of the Federal Polytechnics Act and Regulation 8.4 of exhibit CW1 does not accommodate any presumption that the respondent to a complaint that is the subject matter of investigation may already know the details of the complaint to be investigated as to obviate the need to provide him with any further notice. That exhibits CW5, CW9 & CW14 merely casually invited the Claimants to the sitting of the Panel without giving them the faintest idea what they were coming to be confronted with.

That the evidence elicited from DW1, who was the chairman of the panel of investigation, under cross examination only went to further confirm that the Claimants were all never present when all the persons or officers or witnesses who testified before the Panel were invited, did not cross examine or controvert their submissions, were not provided with even the complaints or petitions written by their accusers to the 2nd  Defendant and were not called upon to enter their defence and that when the claimants appeared before the Panel in compliance with directives in Exhibits CW5, CW9 & CW14 they were merely questioned on some subjects appearing in Exhibits DAY5, DAY6 & DAY7.

Counsel then submitted that the foregoing evidence is a classic demonstration of breach of mandatory procedure stipulated by section 12(1) of the Federal Polytechnic Act, as amended and regulation 8.4 of Exhibit CW1 and consequently the right of fair hearing of the Claimants guaranteed under section 36(1) of the Constitution, by the defendants or their agents in the purported exercise of disciplinary control.

Learned counsel placed reliance on the cases of NWOKORO V. ONUMA (1990) 3 NWLR (PT. 136) 22 AT 32;  INAKOJU VS. ADELEKE (2007) 4 NWLR (PT 1025) 423 ;  and LDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION {2005) SC PT. ILL) 135 AT 141 and a host of other cases.

On his issue two, learned counsel argued that he has very clearly demonstrated that the purported termination or removal of the 1st, 2nd and 3rd Claimants from their offices as Deputy Rector, Registrar and Bursar, respectively was in breach of the clear and mandatory stipulations of section 12 of the Federal Polytechnic Act supra regulation 8.4 of Exhibit CW1 therefore invalid, null, void and of no effect whatsoever.

In conclusion, counsel urged the Court to enter judgment for the claimants.

  1. DEFENDANTS COUNSEL’S REPLY ON POINTS OF LAW.

Replying on points of law, learned Aza Esq. submitted that except we are reading two different Federal Polytechnic Act of 1979 (No.33), if not the Claimants are in error arguing lack of written notice and their removal,  while relying on Section 12(1) (a) & (b) of the said Act. That  the correct provision is section 17 (1) (a) & (b), which talks about the removal and discipline of Academic, Administrative and Technical staff, while Section 12 as erroneously relied upon by the claimants, talks of selection board for other principal officers, which was clearly not the basis of the claimants’ argument in their paragraphs 3.10 and 3.11. He urged the Court to look at the proper provision for clarity.  Counsel urged the Court to expunge the claims in paragraph 74 of the claimants statement of facts/claim as they are referring to section 12 (1) of the Federal Polytechnic Act, which is not applicable to removal and discipline in the 1st defendant’s institution.

Counsel also argued that the claim of the 1st defendant in paragraph 74 (h) of the statement of facts to quash the decision of the 2nd defendant and make him Rector is the very definition of blowing hot and cold at the same time which is not allowed in Law.

The remaining parts of the reply on points of law is a repetition of counsel’s earlier submission in his final written address that in view of exhibits DAY5-DAY7, the claimants cannot in all honesty claim they were not aware of the reason they were invited to 2nd  defendant’s panel. These arguments are a mere repetition and re- argument or improvement on an earlier submission which is not the aim of a reply and it is not allowable, these arguments in the reply are therefore discountenanced.

  1. ISSUES FOR DETERMINATION.

The defendants’ counsel submitted one issue for determination as follows:

“Whether having regards to the state of pleadings and evidence adduced, the claimants have discharge the onus of proof to entitle them to favorable Judgment”

The claimants’ counsel on the other hand, submitted two issues for determination thus:

  1. Whether appointment of each of the claimants was properly terminated in accordance with section 12 of the federal polytechnic Act and the regulations contained in the Staff manual governing the terms and conditions of service in the 1st defendant institution.
  2. Subject to resolution of (1) above, whether the claimants are entitled to the reliefs sought against me defendants.

The issues formulated by both counsel are similar, the first issue formulated by the claimant’ counsel will properly determine this case and is hereby adopted by the court for determination.

  1. COURT’S DECISION

Though the claimants’ pleadings and reliefs are lengthy, by way of summary, the case of the claimants is that they were wrongly removed from their appointments without cause and the procedure adopted in so doing was flawed with lack of fair hearing as enshrined in the 1999 Constitution as well as non compliance with the provisions of the Federal Polytechnic Act and the Federal Polytechnic staff manual on discipline of staff of their cadre. The defendants on their part by their defence insisted that there were good grounds for removing the claimants and that they were granted fair hearing and that the defendants complied with the provisions of the Federal Polytechnic Act and the Federal Polytechnics staff manual on discipline of staff of the claimants’ cadre.

Having read the pleadings, the evidence and submissions of both counsel, I find that the facts of this case are not in dispute, what is in dispute by the pleadings and evidence as well as written addresses of counsel is compliance or non compliance with Section 36 of the Constitution on fair hearing and Section 12 or 17 of the Federal Polytechnics Act as well as paragraph 8(4) of the Federal Polytechnic staff manual.

This judgment will therefore centre on an examination of these provisions and the facts of the procedure adopted in the discipline of the claimants by the 1st and 2nd defendants in order to ascertain compliance or non compliance.

The defendants’ counsel has urged this court to expunge the claims in paragraph 74 of the claimants statement of facts as they are referring on section 12 (1) of the Federal Polytechnic Act.

This argument is not tenable because once the claimants have a complaint against a perceived wrong, they are entitled to have their rights determined under the extant or applicable Law and their case will not be defeated simply because it was brought under the wrong Law or wrong section of the Law. See

ANTHONY ESEKHAIGBE v. FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA) where the court held;

 “It has long been established in the case of Falobi v. Falobi (1976) NMLR Vol.1 p.69 that where a relief or remedy is provided for by a written law, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law”.

 

This Court has also taken judicial notice of the fact that Section 12 of the Federal Polytechnic Act in the Laws of the Federation of Nigeria 1990 is now Section 17 in the Laws of the Federation of Nigeria 2004.The case of the claimants will therefore be considered under section 17 of the Federal Polytechnics Act, LFN 2004 and not section 12 Federal Polytechnics Act, LFN, 1990.

At this stage, a reproduction of Section 36 of the Constitution and Section 17 Federal Polytechnics Act, LFN, 2004 which has been reproduced in paragraph 8(4) of the Federal Polytechnics staff manual, exhibit CW1, are now imperative and they are as follows:

SECTION 36 OF THE 1999 CONSTITUTION.

  1. Right to fair hearing

 

(1)  In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

 

PARAGRAPH 8(4), EXHIBIT CW1, FEDERAL POLYTECHNICS STAFF MANUAL & SECION.17(1) FPA 1979 NO.33,CH. F17, LFN 2004, AND  SECTION 12(1)LFN 1990. Provide as follows;

 

8.4 REMOVAL AND SUSPENSION FROM OFFICE

Senior Staff (Academic; Administrative and Technical Staff).

If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the Institution, other than the  Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall:

(a)  give notice of these 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 period of one month beginning with the date of the notice, make arrangements-

  • if he is an academic staff, for a Joint Committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or
  • for a Committee of the Council to investigate the matter, where it relates to any other member of the staff of the Institution and to report on it to the Council; and
  • for the person in question to be afforded an opportunity of appearing before and being heard by the Investigating Committee with respect to the matter, and if the Council, after considering the report of the Investigating Committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

Now the summary of the complaint are as in paragraphs 18 and 19 of the statement of facts and paragraphs 21 and 22 of the CW1 witness statement, which are similarly repeated by the CW2 and CW3.The relevant evidence of the claimants is hereunder reproduced;

That the proceedings before the said Panel when I appeared before it consisted largely of sundry questions on virtually all aspects or activities in the 1st  defendant institution being asked by the Chairman and members of the said Panel which I was required to answer instantly. That throughout the proceedings the Panel of investigation neither  orally nor in written inform me of any allegation or complaints of any wrong doing that was committed by me, nor informed me that my removal from office as Deputy Rector was in contemplation by the 2nd  defendant Council. That I also did not have the benefit of meeting, hearing, confronting, cross examining any person that was called to testify before the said panel and seeing, examining or inspecting any document presented to or relied upon by the panel throughout its investigation. I was not asked or afforded opportunity to defend myself against any allegation by the panel throughout its proceedings.

 

The defendants on the other hand pleaded in paragraph 6 of the statement of defence that the Claimants removal was indeed legal as every guidelines of the 1st defendant was followed.

The defendants witness in his evidence in chief stated thus;

That I know as a fact that, the Claimants removal was indeed legal as every guidelines of the 1st defendant was followed to the later.

The same witness also testified under cross examination on how the manual was followed to the letter; this is what he said:

Before the letter of compulsory leave,(exhibits CW4,CW8 and CW13) the council did not give the claimants any notice in writing informing them of any allegation against them. Exhibits CW5, CW9 and CW14 (letters of invitation) did not contain the allegations against the claimants. The claimants were not present when the complaints in exhibits DAY1, DAY2 and DAY3 (complaints from ASUP, SSANIP and NASU.) were presented to the council, nor were they present when these exhibits were presented to the panel of investigation. The complainants made some other oral presentations before the panel in the absence of the claimants and the claimants were called and interviewed thereafter. All the claimants did not appear before the panel on the same day. The Unions representatives were not present when the claimants appear before the panel so they did not confront each other. When the claimants appeared before the panel, we did not give the claimants exhibits DAY1, DAY2 and DAY3, we only asked them questions from these exhibits and concerning the oral submissions made by the unions. The claimants were not there during the face to face interactions and visits or investigations in paragraphs 1-5 on pages 2 and 3 of exhibit DAY 8. There was no joint council and academic board panel of investigation in relation to this matter.

 

Having reproduced the provisions of the law and the Federal Polytechnics Manual and having reproduced the proceedings of the panel, as related by DW1 under cross examination, I have lost both  the strength and the words with which  to condemn the process in view of Section 36 of the constitution and section 17(1) of the Federal Polytechnic Act 1979 as amended and paragraphs 8.4(a), (b) and (c) of the 1st defendants manual; the non compliance is self evident and needs no further analysis; all that is now left to say  is that the procedure adopted is a far cry from the requirement of the law and the regulations. Any step taken pursuant to such a procedure cannot stand. This is so because where the law prescribes the mode of doing anything, only that mode and no other mode will suffice. See

 DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS
(2016) LPELR-41244(CA) where  the Court held;

It is trite, that in an employment with a statutory flavour, the procedure duly laid down in the applicable law must strictly be complied with in matters of discipline of such an employee. Thus, where the procedure in question is materially and flagrantly contravened, as in the instant case, any decision taken and affecting the right, reputation or tenure of office of the employee may be declared null and void by the Court. See BAMGBOYE V. UNILORIN (supra) @ 72 paragraphs A – C; IMASEUN V. UNIVERSITY OF BENIN (2011) ALL FWLR (Pt. 572) 1791 @ 1804 

Learned defendants’ counsel has argued in his final written address that in view of exhibits DAY5-DAY7, the claimants cannot in all honesty claim they were not aware of the reason they were invited to 2nd defendant’s panel. The letters of invitation to the panel of investigation are exhibits CW5, CW9 & CW14 and they all read as follows:

”I have been directed to invite you to appear before the Council Panel of Investigation as follows:

Monday 19th February, 2018

Time: 11.00am

Venue: Council Chambers new admin block (Main campus)

Please be guided to attend promptly.”

It is clear that this letter did not even say that the claimants were under investigation let alone inform them of the offence, this is in addition to the fact that there was never a query issued to the claimants informing them of any offence. It must be noted that notice of any accusation or complaint against a person about to face a disciplinary action cannot be a matter for constructive or implied knowledge. What the law requires is for the defendant to give notice of these reasons and allegation to the person in question. That the claimants were not informed of and so were not aware of the reason they were invited to appear before the panel of investigation. I so find and hold.

With respect to fair hearing, the defendants’ counsel has submitted that there is a difference between an administrative panel and a Court, as the claimants wanted by their pleading to have been allowed to have an interface with their accusers, as it is done in a trial Court, this is not possible because no one is formally accused, as it is not a criminal proceeding. In essence, it is a fact finding inquiry. In essence, learned defendants counsel submitted that the claimants were not entitled to fair hearing as obtainable in a court trial.

The position of the law is that even an administrative or domestic tribunal is bound to observe the principles of fair hearing. See N.E.P.A. V. ANGO (2001) 15 NWLR (PT. 737)627 where the court held;

 It is agreed that some latitude or laxity must be permitted when persons not versed in the intricacies or technicalities of law are empanelled to deal with issues of law but it is not only in law but also morally wrong to shut out the person accused from the room of trial and later use the material obtained behind his back to find him liable. Fair hearing, even before an administrative or domestic tribunal, was held by the Supreme Court in Y.A. Garba & ors. v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 , 617 and 618 to imply the rights of the respondent to know what and what are being urged against him, what evidence or statements had been made concerning him and is entitled to opportunity to correct or challenge them, meaning that the tribunal must not receive evidence behind his back. See also Olatunbosun v. NISER (1988) 3 NWLR (Pt.80) 25, cited in the appellant’s brief. At page 52 of the report, the Supreme Court said that:-

“The right to a fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the appellant be given ample opportunity to defend his conduct.”

Accordingly, I find that the claimants were entitled to be informed of what was the accusation against them; they were entitled to know what evidence or statements had been made against them by who; they were entitled to an opportunity to correct or challenge them; that the disciplinary panel shut out the claimants from the room of trial and later use the material obtained behind their back to find them liable; I accordingly find that that the claimants were entitled to but were denied fair hearing. I so hold.

The Court shall now consider the reliefs sought by the claimants.

1.The 1st claimant has also averred in paragraphs 28 and 29 of the statement of facts and supported by his witness statement on oath in paragraphs 35 and 36 that that one Eng. Ahmed Abubakar Lugga was also removed as Rector by the same procedure through which he was removed and he was by Law entitled to become Acting Rector by virtue of his position as Deputy Rector but the 3rd defendant was appointed as Acting Rector instead. He then prayed the court in paragraph 74(1)(i) and (j) for an order of court setting aside the appointment of the 3rd defendant as acting Rector and an order directing the 3rd defendant to vacate the office of Acting Rector.

Neither claimant nor his counsel has drawn the attention of the Court to the law which makes the 1st claimant an automatic Acting Rector and for how long, given that the 1st claimant was removed in March 2018 and this is now March 2019. I have considered the Federal Polytechnic Act, Laws of the Federation of Nigeria 2004. Section 8(2)(3) and (4) thereof deal with where a vacancy occurs in the post of the Rector, this section did not provide for the appointment of an Acting Rector let alone making the Deputy Rector an automatic Acting Rector. The section provides;

2 Where a vacancy occurs in the post of Rector, the Council shall-
 
a advertise the vacancy in a reputable journal or widely read newspaper in Nigeria, specifying-

(i) the qualities of the person who may apply for the post; and

(ii) the terms and conditions of service applicable to the post, and thereafter, draw up a short list of suitable candidates for consideration;
b constitute a Search Team consisting of-

(i) a member of the Council, not being a member of the Academic Board, as Chairman;

(ii) two members of the Academic Board, not below the rank of Chief Lecturer;

(iii) two members of the Academic Community of the college not below the rank of Chief Lecturer, to be selected by Council, to identify and draw up a short list of persons who are not likely to apply on their own volition because they feel that it is not proper to do so.
3 A Joint Council and Academic Board Selection Board consisting of-
 
a the Chairman of the Council;
b two members of the Council not being members of the Academic Board;
c two members of the Academic Board not below the rank of Chief Lecturer, who were not members of the Search Team, shall consider the candidates on the short list drawn up under subsection (2) of this section through an examination of their curriculum vitae and interaction with them and recommend, through the Council, to the President, three candidates for his consideration.
4 The President shall appoint, as Rector, one of the candidates recommended to him under the provisions of subsection (3) of this section.

I accordingly find that the 1st claimant was not automatically entitled by Law to be appointed as Acting Rector of the 1st defendant. I so hold.

2.Reliefs 1(a),2(a) and 3(a) seek for A declaration that the  Claimants may only be removed from office/position of Deputy Rector, Registrar and Bursar of the 1st Defendant before the 21/6/2019, 26/6/2020 and 20/3/2020 being the natural expiration of their appointments on proven grounds of misconduct or inability to perform the function/duties of their offices following the mandatory procedure prescribed under section 12(1) (now setion 17(1) of the Federal Polytechnic Act, 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1ST  defendant.

Having found that the provisions of the Act and the manual were violated, this prayer succeeds and is hereby granted,

3.Reliefs 1(b),2(b) and 3(b) seek for A Declaration that the procedure adopted by the 2nd defendant in purporting to remove the claimants from office  is not in compliance with the prescribed mandatory procedure stipulated under section 12(1) (now section17) of the Federal Polytechnic Act 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1st defendant.

As is the case with the first prayer, this prayer succeeds and is hereby granted.

4.Reliefs 1(c),2(c) and 3(c) seek for C) A Declaration that the purported decision removing the claimants from office by the 2nd  Defendant without compliance with the mandatory procedure prescribed under section 12(1) (section 17(1) of the Federal Polytechnic Act, 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1st Defendant is unlawful, illegal, unconstitutional, ultra vires the powers of the 2nd defendant, null, void and of no effect whatsoever.

For the same reason as above held, this prayer also succeeds and is hereby granted.

 

5.Reliefs 1(d),2(d) and 3(d) seek for  An order setting aside/quashing the 2nd Defendant’s letters to the claimants dated 25/1/2018,16/2/2018 and 10/3/2018same being unconstitutional, unlawful, I I legal, ultra vires the powers of the 2nd Defendant, null, void and of no effect whatsoever.

For the same reason as above held, this prayer also succeeds and is hereby granted.

6.Reliefs 1(e), 2(e) and 3(e) and reliefs 1(f),2(f) and 3(f) seek for  A declaration that the Claimants are still holding their appointments should be reinstated and shall remain so until the natural determination of their tenure as stipulated in their letters of appointment after discounting the period when their tenure was unlawfully interrupted by the unconstitutional, unlawful, illegal, ultra vires exercise of powers by the 2nd Defendant.

For the same reason of finding the removal of the claimants unlawful, it follows that they are either entitled to reinstatement or payment of what they would have earned and continued to earn until the expiration of their tenure.

Accordingly, the claimants are hereby reinstated to their positions as Deputy Rector, Registrar and Bursar respectively until the expiration of their tenures on 21/6/2019, 26/6/2020 and 20/3/2020 respectively.

By the authorities, once it is pronounced that a removal of a civil servant is unlawful and the officer is held to still hold his office, he does not lose his remuneration for the period of removal and so cannot have his tenure extended by the length of period for which he was out of office nor can he be awarded damages. See ONALO V. CHAIRMAN. POLICE SERVICE COMMISSION & ANOR. (2015) 55 N.L. L.R (PT.188) P.473 AT P.501 where this Court per Shogbola J (as he then was) held;

“In an employment with statutory flavor which has been wrongly terminated, the claimant will be entitled to reinstatement only as both reinstatement and damages cannot be awarded together”

The arm of the prayer to discount the period when their tenure was unlawfully interrupted by the unconstitutional, unlawful, illegal, ultra vires exercise of powers by the 2nd defendant is hereby refused.

  1. Reliefs 1(g), 2(g) and 3(g) seek for An Order of injunction restraining the 1st, 2nd , 3rd, 4th and 5th defendants forthwith by themselves, their agents and servants from interfering with or doing anything to prevent the Claimants from discharging their lawful duties and or exercising their lawful powers and privileges as Deputy Rector, Registrar and Bursar respectively of the 1st defendant.

This relief is consequential upon the reliefs above granted; it succeeds and is hereby granted.

  1. Relief 1(h) seeks for a declaration that in the vacuum created by the removal of Engr. Ahmed Abubakar Lugga as Rector of the 1st defendant and until the said vacancy is lawfully filled or occupied, the 1st claimant is the person entitled to act and shall act as the Rector of the 1st Defendant.

This claim is not proven as already held in this judgment; the claim is hereby refused.

8.Reliefs 1(i), 2(i) and 3(i) seek for An Order setting aside the purported appointment of the 3rd, 4th and 5th defendant as the Acting Rector, Acting registrar and acting Bursar of the 1st defendant by the 2nd defendant same being unconstitutional, unlawful, illegal, ultra vires the powers or the 2nd  defendant, null, void and of no effect whatsoever.

By reason of the reinstatement of the claimants, this prayer succeeds in part with respect to the 4th and 5th defendants and are granted to that extend only. Having held that there is no reasonable cause of action against the 3rd claimant, his appointment cannot be set aside, that arm of the prayer is refused.

9.Reliefs 1(j),2(j) and 3(j) seek An Order directing the 3rd, 4th and 5th defendants to forthwith vacate the office of the Acting Rector, Acting registrar and acting Bursar of the 1st defendant and hand over the affairs of the said offices to the Claimants.

For the same reason as held above, this prayer too succeeds in part and is hereby granted with respect to the 4th and 5th defendants only.

10.Reliefs 1(k), 2(k) and 3(k) seek for payment of  Nl,250,000.00 as cost of engaging solicitors  & litigation.

To begin with, the cost of engaging solicitors for N3,750,000.00 was not proven by any of the claimants. In any case, it is not the law or practice to pass on solicitors fees to the opposing party in litigation.  The claimants cannot claim for solicitor’s fees from the defendants even if their claim succeeds. See CHUKWUDINMA V. ACCESS BANK PLC (2015) 56 N.L.L.R. (PT.192) P.407 AT P.P 436-437 where this Court per Kola-Olalere J held;

“It is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party. It is an unusual claim and it is difficult to accept in this country as things stand today. The situation in the case at hand is even worse because the claimant did not give any evidence on the amount that his solicitor is claiming. It is trite law that he who asserts the existence of fact must prove. The claimant’s claim for his solicitor’s fees here is an invitation to the Court to speculate. The claimant is not entitled to claim his solicitor’s fees from the defendant. S.P.D.C. v. Okonedo (2007) All FWLR (Pt. 368) 1104 at 1137 -1138 Paras. E- D: Nwanji v. Coastal Serv. (Nig.) Ltd (2004) 11 NWLR (Pt.885): [2004) LPELR SC.151/1999 (2004) 18 NSCQR 895 at P.18, paras. B-E, Oyebode  V Gabriel (2013) All FWLR (PT,669) 1043 at 1083 and section 137(1) of the Evidence Act referred to]” 

See also UCHEGBU V. ECOBANK NIG PLC (2015) 52 N.L.L.R 9PT.176)P.579 AT PP.603-604

The claim for the cost of engaging solicitors for N3,750,000.00 by the claimants fails and same is hereby refused.

11.Reliefs 1(l), 2(l) and 3(l)  is an alternative prayer to reliefs ( e),(f),(g),(h),(i) & (j) for the sum of Nl00,000,000.00 (One Hundred Million Naira) as general and punitive/exemplary damages for impunity, flagrantly breaching the 1st Claimant’s contract of employment and maliciously imputing/insinuating negligence and failure to discharge the responsibilities of their offices in the 1st Defendant.  

The law is now settled that where the main relief succeeds as in this case, the alternative prayer cannot be considered let alone be granted. In view of the success of the main claim in this case, I therefore decline to consider the alternative claim.

  1. As a consequential order to the reinstatement of the claimants, it is hereby declared that the claimants are entitled to their salaries as Deputy Rector, Registrar and Bursar before their removal from the month of March 2018 to March 2019 less the salaries that the 1st defendant has been paying them within this period.
  2. It is hereby ordered that the claimants’ balance of salaries shall be paid to them within three weeks of this judgment or it shall attract 10 % interest per annum.
  3. COURT ORDER

For the avoidance of doubt, it is hereby declared and ordered as follows:

  1. A DECLARATION that the Claimants may only be removed from office/position of Deputy Rector, Registrar and Bursar of the 1st Defendant before the 21/6/2019, 26/6/2020 and 20/3/2020 being the natural expiration of their appointments on proven grounds of misconduct or inability to perform the function/duties of their offices following the mandatory procedure prescribed under section 12(1) (now section 17(1) of the Federal Polytechnic Act, 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1ST

 

  1. A DECLARATION that the procedure adopted by the 2nd defendant in purporting to remove the claimants from office is not in compliance with the prescribed mandatory procedure stipulated under section 12(1) (now section17) of the Federal Polytechnic Act 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1st

 

  1. A DECLARATION that the purported decision removing the claimants from office by the 2nd Defendant without compliance with the mandatory procedure prescribed under section 12(1) (section 17(1) of the Federal Polytechnic Act, 1979, as amended and paragraph/regulation 8.4(a), (b) & (c) of the Manual of the 1st Defendant is unlawful, illegal, unconstitutional, ultra vires the powers of the 2nd defendant, null, void and of no effect whatsoever.

 

  1. AN ORDER setting aside/quashing the 2nd Defendant’s letters to the claimants dated 25/1/2018, 16/2/2018 and 10/3/2018 same being unconstitutional, unlawful, illegal, ultra vires the powers of the 2nd defendant, null, void and of no effect whatsoever.
  2. A DECLARATION that the Claimants are still holding their appointments and should be reinstated and to remain so until the natural determination of their tenure as stipulated in their letters of appointment.
  3. AN ORDER reinstating the claimants to their positions as Deputy Rector, Registrar and Bursar respectively until the expiration of their tenures on 21/6/2019, 26/6/2020 and 20/3/2020 respectively.
  4. AN ORDER of injunction restraining the 1st, 2nd , 3rd, 4th and 5th defendants forthwith by themselves, their agents and servants from  interfering with or doing anything to prevent the Claimants from discharging their lawful duties and or exercising their lawful powers and privileges as Deputy Rector, Registrar and Bursar respectively of the 1st defendant.
  5. AN ORDER setting aside the purported appointment of the 4th and 5th  defendants or whosoever as the Deputy Rector, Acting Registrar and Acting Bursar of the 1st defendant by the 2nd defendant same being unconstitutional, unlawful, illegal, ultra vires the powers of the 2nd  defendant, null, void and of no effect whatsoever.

 

  1. AN ORDER directing the 4th and 5th defendants or whosoever to forthwith vacate the office of the Deputy Rector, Acting registrar and Acting Bursar of the 1st defendant and hand over the affairs of the said offices to the Claimants.
  2. A DECLARATION that the claimants are entitled to their salaries as Deputy Rector, Registrar and Bursar before their removal from the months of March 2018 to March 2019 less the salaries that the 1st defendant has been paying them within this period.
  3. AN ORDER that the claimants’ balance of salaries shall be paid to them within three weeks of this judgment or it shall attract 10 % interest per annum.

I make no order as to cost.

………………………..

HON. JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, SOKOTO

 

 

 

 

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