IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE AKURE JUDICIAL DIVISION HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE. OYEBIOLA O. OYEWUMI
DATE: 15TH JANUARY, 2019
SUIT NO: NICN/IL/14/2014
BETWEEN
MR. ALFRED I.O OBADAN
CLAIMANT
AND
1. THE FEDERAL POLYTECHINIC, OFFA
2. THE GOVERNING COUNCIL, FEDERAL POLYTECHNIC OFFA
3. THE RECTOR, FEDERAL POLYTECHNIC, OFFA
4. THE REGISTRAR, FEDERAL POLYTECHNIC OFFA
DEFENDANTS
Appearances:
Roland Otaru with him S.A Egbuwabi, O.E Alafe for the Claimant
J.O Olatoke SAN with him I.V. Ogienwonyi, J.O Adeboye, D.O Bamidele Esq for the Defendants
JUDGMENT
This is a transferred matter from the Federal High Court of Justice, Ilorin Judicial Division. The Court ordered that parties file their processes in compliance with the rules of this Court, hence the general form of Complaint filed in this Court on the 16th February, 2015, the Claimant claims against the Defendants jointly and severally as follows:
A Declaration that the termination of the Claimant’s appointment by the 1st Defendant as the Bursar of the 1st Defendant vide letter Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 under the purported directives(s) or instructions(s) of the Federal Minister of Education of the 2ndDefendant is invalid, ineffectual, unconstitutional, null and void and of no effect whatsoever as same is, contrary to the relevant provisions of the Federal Polytechnic Act, Cap. F17, Laws of the Federation, 2004 and the Staff Manual and Scheme of Service (Conditions of Service) of the 1stdefendant.
A Declaration that the Letter of Appointment with Reference No. FPO/RO/74/S.1 dated 1st day of June, 2009 issued by the 2nd Defendant appointing the Claimant as the substantive Bursar of the 1st Defendant is still valid, extant and effectual.
A Declaration that the Claimant is still in the services of the 1st Defendant as the substantive Bursar of the 1st Defendant until the expiration of a period of five years from 1st day of June 2009 to 1st day of June 2014.
A Declaration that the purported termination of the Claimant’s Appointment vide Letter Reference No. FPO/RO/74/S.1 dated 2nd day of October 2009, as the Substantive Bursar of the 1st Defendant is invalid, ineffectual, unconstitutional, null and void and of no effect whatsoever as same is a violation of the Claimant’s right to Fair Hearing and a fortiori a violation of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
A Declaration that the Claimant is still entitled to the payment of all his monthly salary, allowances, accrued benefits and/or all other emoluments by the Defendants until after a period of five years beginning from the 1st day of June, 2009 to 1st day of June 2014.
An Order setting aside the letter titled TERMINATION OF APPOINTMENT with Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 issued by the 1st, 2nd, 3rd and 4th Defendants to the Claimant as same as invalid, ineffectual, unconstitutional, null and void and of no effect whatsoever.
An Order of this Honourable Court reinstating the Claimant as the substantive Bursar of the 1st Defendant herein and to continue to perform the functions, duties and responsibilities of his office as a Bursar.
An Order directing the Defendants either by themselves, agents, servants, officers, officials and personnel however described or designated to continue to pay the Claimant his monthly salary, allowances and other emoluments forthwith until his reinstatement by this Honourable Court.
An Order of Injunction restraining all the Defendants herein, either by themselves, servants, agents, officers, officials, personal representatives, privies or any person or persons HOWSOEVER from employing or take any step to employ the service of any person either as Acting or substantive Bursar of the 1st Defendant until the Claimant’s tenure of five years’ service from 1st June 2009 to 1st June 2014.
An Order of Injunction restraining all the Defendants, either by themselves, servant, agents, officers, officials, personal representatives, privies or any person or persons HOWSOEVER from giving effect to and/or implementing the contents of the Letter of termination Reference No. FPO/RO/74/S/1 dated 2nd day of October 2009 forthwith.
An Order of Injunction restraining the Defendants herein, either by themselves, servants, agents, officers, officials, personnel, personal representative, privies or any person or persons HOWSOEVER from intimidating, embarrassing, disallowing and/or preventing the Claimant from performing the functions, duties, responsibilities of his office as the Substantive Bursar of the 1st Defendant forthwith.
An Order of Injunction restraining the Defendants herein, either by themselves, servants, agents, officers, officials, personnel, personal representative, privies or any person or persons HOWSOEVER from preventing and disallowing the Claimant to the use of his official office and other official facilities in and outside the Polytechnic in the discharge of his functions, duties and responsibilities of his office as the Substantive Bursar of the 1st Defendant.
An Order of Injunction restraining the Defendants, either by themselves, servants, agents, officers, officials, personnel, personal representatives, privies or any person or persons HOWSOEVER from refusing and/or neglecting to pay the Claimant his monthly salary, allowances, accrued benefits and other entitlements forth-with pending his reinstatement by this Honorable Court.
ALTERNATIVELY
A Declaration that the Claimant is entitled to the sum of N27,935,828.71(Twenty Seven Million, Nine Hundred and Thirty-Five Thousand, Eight Hundred and Twenty-Eight Naira, Seventy-One Kobo) only being the payment of all his monthly salary, allowances, accrued benefits and/or all other emoluments by the 1st Defendant until after a period of five years beginning from 1st day of June, 2009 till 1st day of June 2014.
It is the case of the Claimant that he is a Chartered Accountant and that he was appointed a Bursar of the 1st Defendant vide a Letter of Offer of Appointment with Reference No. FPO/RO/74/S.1 dated 1st June 2009 and assumed duty on the 22nd June, 2009 discharging his functions, duties and responsibilities without blemish and any financial impropriety. That to his surprise, he received a letter dated the 28th day of September, 2009 signed by Dr. M.O Olatinwo, Rector of the 1st Defendant stating that his appointment as “Substantive Bursar” had been changed to “Acting Bursar” and that within few days, he was served with another Letter dated 2nd October 2009 stating that his appointment had been terminated. He averred that his appointment as the Substantive Bursar of the 1st defendant is governed by statute and a fortiori his appointment which is for a period of five (5) years (from 1st June 2009 to 1st June 2014) as the Substantive Bursar of the 1st Defendant is still subsisting, he contended that he is entitled to receive his monthly salary, allowances, benefits and other entitlements or emoluments as the substantive Bursar of the 1st Defendant, and to receive his salaries, allowances and other fringe benefits or emoluments till the year 2014. Being one of the principal officers of the 1st Defendant, his position attracts salary of CONTISS 14 (Consolidated Tertiary Institution Salary Scheme) and a Monthly Net pay in the sum of N222, 419.37 while his yearly Net Pay is N2,669,028. He stated further that asides from his monthly salary from October 2009 to June 2014 that he is also entitled to any increase in his salary whenever same is increased and also all allowances and fringe benefits cognizable as the Bursar of the 1st Defendant in addition to his pension and gratuity. He noted that the Federal Government had approved the payment of salaries for Civil Servants under the approved New Salary Scale (CONTEDISS) for Polytechnics 53.37% increase applicable to the Claimant.
He also averred that his purported termination was malicious.
The Defendants on the other hand in their Statement of Defence filed on 9th March, 2015, averred that the Claimant was not the Substantive Bursar of the 1st Defendant but an Acting Bursar before his employment was terminated, that he did not fulfill the requirements for the post as he did not meet the eligibility age for appointment into Public Service and other requirements inclusive of the Composition of the Panel for the Appointment of Principal Officers of the 1st Defendant. They admitted that the Claimant was offered employment as the Bursar on the 1st June 2009, but he however accepted the terms set out there in on 6th June 2009. They averred that the Claimant assumed office on the 22nd June, 2009 but he was still the owner/partner in the firm of Alfred Ohi Obadan &Co (Chartered Accountant). The Claimant was served a letter converting his Appointment to Acting Bursar and he accepted same and that upon his assumption of duty as the Bursar on 22nd June 2009, he filed his personal emolument record on 23rd June 2009. That on the 16th June 2009, the three Unions of the Polytechnic namely ASUP, SSANIP, NASU wrote a petition to the 2nd Defendant and the Registrar against the appointment of the Claimant as Bursar as being in contravention of the Public Service Rules which prohibits the appointment of a person above 50 years of age into the Federal Polytechnic Civil Service and that the curriculum vitae of the claimant reveals that he was above 50 years of age as at the time of his appointment having being born 27th July 1956. Hence The Federal Minister of Education directed his appointment was nullified/terminated and the council directed that another advertisement for the position and those whose appointment were nullified but still felt qualified can re-apply. They stated that it is upon the receipt of the directive of the Federal Minister of Education that the 2nd Defendant pleaded on the claimant’s behalf that he should be granted an “Acting Bursar” status and it is upon this he was given another Letter of Appointment. It is the statement of the defendants that the directive of the Minister of Education was not targeted at the claimant alone, it also affected the Registrar and that the Claimant’s appointment for the purported five (5) year tenure was subject to the right of either party to terminate the appointment by giving appropriate notice as stipulated by the Letter of Appointment given to the claimant. They stated that despite the fact that the claimant is entitled to one month salary in lieu of notice of his termination, they were magnanimous enough to pay him three (3) months’ salary in lieu of which he accepted as such he is estopped from challenging the termination of his employment. They continued that the Claimant is no longer a staff of the Defendant therefore he is not entitled to receive any monthly salary on CONTISS14, allowances, benefits and other entitlements or emoluments and that the calculation of the claimant is just a figment of his imagination. Also, that the claimant had resumed work at Fred Ohi Obadan & Co. (Chartered Accountant) immediately his appointment was terminated and he is not entitled to work in two (2) places at the same time. Furthermore, defendants denied the assertion of the Claimant that the termination of his employment was malicious, rather they stated that it was due to the petition written by the three (3) unions of the 1st Defendant and that from the content of the petition written to the Chairman of the Governing Council of which the Minister of Education was copied, some vital issues were raised that amounted to irregularities in the Claimant’s appointment among which was his age. That it was when the abnormality was discovered the Federal Minister of Education ordered/directed that the position of the Bursar is re-advertised and the appointment of the Claimant be terminated as such the Minister of Education is a necessary party in this suit and also that the 1st Defendant had paid the Claimant for the period he worked with the 1st Defendant before his termination.
Parties during trial testified and adduced evidence in support of their cases, the claimant testified for himself as CW, he adopted his Written Statement on Oath dated 16th February, 2015 and his Additional Statement on Oath dated 6thMay 2015 respectively, he also tendered some documents , which were admitted in evidence and marked as Exhibits AO-AO12. The defendants on the other hand testified through One Soko Gabriel Oyediran, he equally adopted his sworn deposition dated 9th March 2015 as his evidence in this case, he also tendered some documents which were admitted in evidence by the Court and marked Exhibits SG-SG4.
At the close of trial, in compliance with the rules of this Court, both parties caused their written addresses to be filed, the defendants filed theirs on the 16th July, 2018 and formulated four (4) issues for the determination of the Court, the Claimant also filed his on the 6th August, 2018, canvassing three (3) issues also for the Court’s determination and the defendants responded to the issues raised by the Claimant in their Reply on Point of Law filed on the 14th August 2018, salient points of which will be captured in the course of this judgment.
Upon an in-depth and careful consideration of the processes filed by the parties and the supporting documents, their respective written submissions canvassed by learned counsel on both divide, it is my respectful view that the sole issue that would best determine this suit is:
Whether or Not the Claimant has proven his case as to entitle him to the relief sought?
Before delving into the crux of this suit, it is important to consider some preliminary issues raised by learned counsel on both side in their written submissions. Learned Defence Counsel in his issue one contended that this suit is not properly constituted having not been initiated by due process of law. It is his argument that the Federal Minister of Education being the person who issued the directive in Exhibit AO7 is a necessary party for the effective determination of this suit. This position was also reiterated in Paragraph 45 of the Statement of defence wherein they stated that “…the Minister of Education is necessary party which was not joined in this matter.” Counsel continued that there is a mandatory need for the Minister to be joined in this suit as they are the agents of a disclosed principal and such cannot be bound by the acts of the disclosed principal; represented by this latin maxim Qui per alium facit per selpsum facave videture, which means “He who does an act through another is deemed in law to do it himself” and by implication, they acted as the agent of the Minister of the Education(the Visitor to the 1st defendant) as such the Minister is liable for their actions. The learned Claimant’s Counsel also in his reaction to this contended that the argument of the defendants is amiss and that the Minister of Education is not a necessary party to this suit, his argument is that the Minister by law is not an employer of the claimant and was not privy to the contract between the claimant and the 1st defendant neither did he issue the letter of employment. Learned silk on behalf of the claimant noted further that the Federal Minister of Education was not the one who established the 1st defendant neither is he the one who owns it as such, the non-joinder of the Minister in this suit does not in any way nullify this suit.
The issue raised by the defendants is one that touches on the competence or otherwise of this suit and eventually the jurisdiction of this Court to adjudicate on same. The law is trite that where a jurisdictional issue is raised, it must be considered first, this is because jurisdiction is a radical and crucial question of competence, See the cases of Attorney General Lagos State v. Dosunmu [1989] 2 NWLR (Pt.111) 552 at 566; Fumudoh v. Aboro [1991] 9 NWLR (Pt.214) 210;IGP v. Andrew [2014] LPELR-22310 (CA). It is apt to state that the issue of jurisdiction is the life wire of any suit before any Court of law without which the efforts of the Courts amounts to a futility, see Orofin v. Chevron Nig. Ltd [2007] All FWLR Pt.384 Par. 4, U.I.T.H v. Onoyivwe & Ors [1991] 1 S.C (Pt.1) 61 at 96-97 Paragraphs 40-41. Jurisdiction is the blood that gives life to the survival of an action in a Court of law without jurisdiction, the action will be like an animal that has been drained of its blood, it will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. The issue as to whether the Minister of Education is supposed to be a party to this suit is one that is to be determined at the earliest opportunity as the law is trite that proper and or necessary parties must be before the Court to ensure effectual determination of a given case. See the case of Madukolu v Nkemdilim [1962] 2 SCNLR 341, Cotecna Int’I Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346 S.C. It is a well settled position of the law that to make a person, either natural or legal to be a party to an action is that he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The Court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of this suit or may be affected by the decision. See the cases of Williams v. Williams & Anor [2018] LPELR- 44901SC; Ibegwura Ordu Azubuike v Peoples Democratic Party & ors LER [2014] SC 476/2012, The notorious case on this issue Green v Green [1987]3 NWLR (Pt 610) 480; Anabaraonye v Nwakaihe [1997] 1 SCNJ 161 AT 166; Mobil v L.S.E.P [2002] 12 SCNJ. The questions to be asked for the purpose of determining if Honourable Minister as argued by the defendants is a proper and/or necessary party to this suit are;
Is the cause or matter liable to be defeated by a non-joinder?
Is it possible to adjudicate on the cause or matter unless the Honourable Minister is added as a defendant?
Is the Honourable Minister a person who should have been joined in the first instance?
Is the Honourable Minister a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?
See the case of Green v Green supra, See also the cases of E.F.P Co. Ltd v. N.D.I.C [2007] 9 NWLR (Pt. 1039) 216, Ojukwu v. Gov. of Lagos State (No.1) [1985] 2 NWLR (Pt. 10) 806. In answering the above stated questions, there is the need to draw a dichotomy between a necessary, proper party and desirable party, Necessary party is a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the Court. See the cases of Re-Mogaji [1986] 1 NWLR (Pt.19) 579, Panalpina World Transport (Nig.) Ltd v. J.B Olandeen International & Ors [2010] LPELR-2902 (SC). Necessary parties are those whose participation in proceedings of an action is indispensable for the effectual and complete adjudication of the question involved in the cause or matter. In the absence of which the subject matter of a cause cannot be properly determined in order to arrive at a just judgment. See the cases of Akindele v. Abiodun [2009] 11 NWLR (Pt.1152) 356 CA, Fawehinmi v. N.B.A (No.1) &Ors [1989] 2 NWLR (Pt.105) 494, Peenok Hotel Presidential [1983] 4 NCL R 122, Cotecna International Ltd v. Church gate (Nig) Ltd 18 NWLR (Pt. 999) 1 CA. A proper party on the other hand is a party not interested in the claimant’s claim /subject matter or the outcome of the case, Fawehinmi v. N.B.A (No.1) &Ors supra, Peenok investment Ltd v. Hotel Presidential Ltd, supra. He is a party who was active or concurred in the matters which gave the claimant the right to his action, while a desirable party is one who have an interest or who may be affected by the result. Now what then is the legal effect of non joinder of a necessary party? The effect is that a Court cannot make an order to bind the party without hearing the party and judgment or order made against such a party to a suit cannot stand, see Sun Insurance Office Ltd v. Victoria Ojemuyiwa [1965] NMLR 452. Now, is the presence of the Minister of Education necessary as a party to this suit? Does he have relevant evidence to give on some of the issues at stake? Is this matter liable to be defeated without his presence? In the locus classicus case of Amon v. Raphael Tuck &Sons Ltd [1956] 1 All ER 273; the Court held that “the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore must be a question in the action which cannot be effectually and completely settled unless he is a party”. Now it is noteworthy that government executives/functionary like the Honourable Minister of Education (hereafter called the “Minister”) acts through officials and hence where a responsibility is entrusted on the Minister is performed or carried out by his officials it is deemed to have been performed by the functionary. See the case of All Progressive Congress v Peoples Democratic Party [2015] 15 NWLR (Pt. 1481) pg 1. It should be noted also that this Court by Order 13 Rules 14(1) and (2) of the National Industrial Court Rules, 2017, can also order for joinder of party(s). However, a cursory look at Exhibit AO3 discloses that an employment relationship existed only between the claimant and the 1st defendant and no one else as argued by the learned claimant’s counsel. Moreover by the provisions of the Federal Polytechnic Act, Cap F17, LFN 2004, (hereafter called “the Act”) is the Act that establishes the 1st defendant, see the first Schedule of the Act and Section 1 (m) supra. By the provisions of Section 4 of the Act, the Minister of Education is regarded as “the Visitor” to the 1st defendant; “The Minister of Education shall be the Visitor to each Polytechnic.
The Visitor shall, not less than once in every five years, conduct a visitation of the college or appoint a Visitation Panel, consisting of not less than five experts. To conduct the visitation-
For the purpose of evaluating the academic and administrative performance of the polytechnic;
For such other purpose or in respect of any other affairs of the polytechnic as the Visitor may deem fit.
Also Section 3 (g) of the Act provides that the Representative of the Minister is also a member of the Council and by Section 7(4) of the Act; “The Minister may give to the Council directions of a general character or relating generally to particular matters (but not any individual person or case) with regard to the exercise by the Council of its functions and it shall be the duty of the council to comply with the directions” (Underlining mine). It is deducible from the above that the Minister who is a visitor can issue directives of general character to the Rector of the 1st defendant and consequent upon this (exhibit SG4, the directive from the Federal Ministry of Education) the Rector of 1st defendant acted and terminated the appointment of the claimant. It is settled law as reiterated in the Court of Appeal case of Paul Uhunmwangho Simeon v College of Education Ekiadolor Benin [2014] LPELR-CA/B/103/2006; that where a government official acts on behalf or in compliance with the directive of Government functionary, the act of the official is that of the functionary, this is known as the Caltona principle enunciated in the case of Caltona Ltd v Works Commissioners [1943] 2 ALL ER 560; Lord Greene MR stated at page 563 amongst other things thus; “In the administration of government in this country (UK) the functions which are given to Ministers… are multifarious that no Minister could personally attend to them… the duties imposed upon ministers and the powers given to ministers are normally exercised by responsible officials. That the decision of the official is deemed to be that of the minister”. It is clear that the termination of appointment of the claimant (Exhibit AO7) was carried out by the 1st defendant, and the law is that he who has the power to appoint has the corresponding power to remove. See Section 11 of the interpretation Act, Cap. I 23, LFN, 2007. It is apparent on record that the claimant was appointed by the 1st defendant and it thus goes without saying that it is the 1st defendant that has the statutory powers to determine his appointment, in this case it was the 1st defendant that did terminate his appointment. It is in the light of this that I find that the non-joinder of the Minister does not in any way affect the effectual determination of this suit, the cause of action,/matter before this Court is not liable to be defeated by the non-joinder of the Minister of Education as he is not a necessary party to the suit. It is upon this premise that I find and hold that the cause of action of the claimant can be properly and effectively decided without the inclusion of the Minister as a party to the suit.
It is also the contention of learned defence counsel that there is no valid contract of employment existent between the parties to the suit, learned silk argued that there was a mutual mistake which is the failure of the parties to note the provisions of Chapter 2, Article 020205(a) of the Public Service Rules which prohibits engaging persons above the age of fifty (50) years of age into its establishment. The argument of the learned silk is that the mistake made at the time the Advertisement in Exhibit AO was made, is that they erroneously left out certain requirements for qualification to the post of Bursar and the Claimant did not fulfil the requirement which means he was not prima facie qualified to be appointed as Bursar of the 1st Defendant. It was further submitted that the appointment was illegal ab initio. The learned Claimant’s Counsel on the other hand responded that there is no iota of mistake on the part of the Defendant in his appointment. Also, that the defendants inviting the claimant for interview as the substantive Bursar meant unequivocally that he had fulfilled all the requirements to be appointed as the substantive Bursar hence he was invited for interview and that all requirement including provisions of the Public Service Rules were taking into consideration and as such it cannot be said that there was a mistake.
It is trite law that the basic elements of a valid contract are an offer, acceptance and consideration, See the case of C.A.P Plc v. Vital Inv. Ltd [2006] 6 NWLR (Pt. 976) 220 at 264 (CA). See Sagay, Law of Contract, Second Edition, 2007 Reprint, 63. Also parties must have the capacity to enter into contractual relationship and intention to create same. In other words, a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed up by consideration. It is at that point that parties to the contract are said to be ad idem or in agreement and that agreement or contract is binding on both parties and is enforceable in an action. See the case of Yaro v. Arewa Construction Ltd [2007] 16 NWLR (Pt. 1063) 333. The 1st defendant being a body established by Statute has the capacity to enter into the contractual employment and an intention to create a relationship. Flowing from this, it is evident that all the three ingredients to create contractual relationship between the Claimant and the 1st defendant are autonomously equal and present, there is obviously the intention to create a reciprocal legal obligation by the 1st defendant with the claimant as there is mutuality of purpose and intention, see the cases of Dodo v. Solanke [2007] All FWLR (Pt. 346) 576 at 592-593, Paras G-A. In the case of Omega Bank Plc v. O.B.C. Ltd [2005] 8 NWLR (PT.928) 547 AT 576, the Supreme Court, per MUSDAPHER, JSC (as he then was) held; –
…I think I need to emphasize and reiterate that although Courts may not make contract for the parties where none exists, the Courts will seek to uphold bargains made commercially, where possible, recognizing that they often record the most important agreements in crude and summary fashion and will seek to construe any documents fairly and broadly without being too a statue or subtle in finding defects. See: Brown v. Gould (1972) 1 Chapter 53; Fillas & Co. Ltd. v. Arcos Ltd. (1932) 147 Pt. 503; (1932) AER 497. After due consideration of all the circumstances and if satisfied that there was an ascertainable and determinate intention to contract, the Courts will strive to give effect to that intention looking at the intent and not mere form.
It is germane to state that the Act is silent on the appointment process of the claimant but provides for the position of a Bursar. Howbeit, Exhibit AO6 which is the Staff Manual and Scheme of Service of the 1st defendant, at paragraphs 1.3 provided for the procedure for appointment and it is appropriate I reproduce same for ease of reference thus;
“1.3 Procedure for Appointment
IDENTIFICATION OF VACANCIES
The appointment and promotion committee shall identify vacant positions from the existing established posts to be approved by the Governing Council.
NOTIFICATION OF VACANCIES
The Registrar shall advertise the identified and approved vacancies to effectively reach a large number of eligible applicants.
CONTENT OF ADVERTISEMENT
The advertisement shall specify all such conditions qualification, etc as are requisite to the vacant post(s), and the manner of application” (Underline mine for emphasis).
PROCESSING OF APPLICATION
After consultation with the Rector the Registrar shall forward a copy of every application to the Head of department concerned as soon as possible after its receipt.
The shortlisting of applicants shall be done by the Head of department/Director after appropriate consultation with such members of his staff and other persons as he may deem necessary and the registrar shall be informed as soon as possible.
There after the Registrar shall inform the shortlisted candidates.”
Also Chapter 2 page 77 thereof adumbrates the mode of entry to the position of a bursar;
By direct appointment of a holder of a good degree in Accountancy or Finance from a recognized institution of higher learning or equivalent professional Accountancy qualification with at least 18 years post-qualification cognate experience, plus registration with a recognized professional accounting body.
By promotion of a suitable Chief Accountant/Chief Auditor with 3 years’ experience in that grade.
From the records before the Court, it is clear that the defendants by Exhibit A made an advertisement on the vacant position of a BURSAR in the Daily Trust Newspaper dated 17th of March, 2009 stating the Qualification and experience of the prospective applicant to be thus; “Qualification and Experience
Candidates for the post of Bursar is required to hold a good honours degree in Accountancy or Finance from a recognized institution of higher learning or equivalent professional Accountancy qualification with at least 18 years post qualification cognate experience plus registration with recognized professional accounting body.
Candidates who presently occupy positions lower than chief accountant or equivalent positions need not apply”
The claimant by exhibit AO1 dated 30th of March, 2009 applied for the position of a bursar in the institution of the 1st defendant, by exhibit AO2, dated 11th of May, 2009 he was invited for an interview by the 1st defendant on the 27th of May, 2009. He was offered an appointment on the 1st of June, 2009 (Exhibit AO3) and his appointment and resumption was made known to the general public vide the National Dallies (News Digest and The Nation) on the 8th and 25th of June, 2009 respectively. It is therefore obvious on record that the procedure for the appointment of the claimant as the Bursar of the 1st defendant as stipulated in exhibit AO6 was duly followed. I say so in view of the fact that there was nowhere from the evidence before the Court where it was expressly or impliedly stated that the applicant for the position of a Bursar must not be over 50 years. I also make bold to say that defendants admitted this much when it posited in its submission that it is a mutual mistake on the part of both parties not to take cognizance of the provisions of Chapter 2, Article 020205(a) of the Public Service Rules upon the appointment of the claimant. It so clear on record that the defendants are blowing hot and cold in their submission as a cursory perusal of exhibit AO11 which is a reply by the 1st defendant to the Chairmen of ASUP, SSANIP, NASU dated 18th of June, 2009 at its paragraph three (3) stated thus;
“You also quoted the public service rule that gave the age limits for entry into public service 18 years – 50 years. This is correct for anyone who has never worked in the Federal or State Public Service. The aim of this is because to be eligible for pension. You must have worked in Public Service for 10 years. This rule does not apply to anyone who has worked in the Public Service before. He/she could merge his/her service if he/she was never dismissed nor terminated. The person we appointed as BURSAR had worked in the Civil service for 10- 13 years so that age limit does not apply to him. We took this into consideration during the interview.”
It is trite that the Court will not allow a party to approbate and reprobate at the same time, see the cases of Pina v. Mai-Angwa [2018] LPELR-44498SC; Alaribe v Okwuonu [2016] 1 NWLR (Pt 1492) 41 CA; Otunba Fatai Sowewimo v Otunba Dayo Awobajo & ors [1999]7 NWLR (Pt. 611). This position is statutorily reinforced by Section 169 of the Evidence Act, 2011, which states that “When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such believe, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing” The defendant having followed all the procedure in appointing the claimant as its bursar and having equally stated in exhibit AO11 that the age limit cannot affect the claimant having worked in the Civil service for 10-13 years cannot turn around to say his appointment process is in contravention of Article 020205 of the Public Service Rules. I further need to state that in the hierarchy of our statutes, the Constitution and the laws enacted by the National Assembly takes precedent above the Public Service Rules. Therefore, the provisions of the 1999 Constitution which gives right to all citizens of this clime to be engaged in a gainful employment, as well as the Federal Polytechnic Act under which the claimant was appointed are in the hierarchy of our laws superior and above the provisions of the Public Service Rules. Therefore, the provision of the PSR cannot impeach the provisions of the Constitution and the Federal Polytechnic Act, the requirement of which the claimant fulfilled before his appointment by the 1st defendant as a Bursar. I so find and hold.
Assuming without conceding that there was a mistake, the pertinent question to ask is whose mistake is it, is it that of the defendants whose duty is to duly provide for and follow the detailed requirements upon the appointment of the claimant or that of the claimant who followed squarely the required procedure. I answer this question in this legal maxim ex turpi causa non oritur actio which is that a person should not be made to benefit from his wrong/mistake. This maxim was succinctly applied in the case of Adedeji v N.B.N Ltd [1989] NWLR (Pt. 96) 212 where His Lordship Akpata JSC (as he then was) quoting the dictum of WIDGERY, L.J. in Buswell v Godwin [1971] 1 ALL ER, 421 thus;- “ the proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse”. See also the case of Mr. P.T. Adedeji v Dr Moses Obajimi [2018] LPELR 44360 SC. also in the English case of Collins v. Blatern decided in 1867 by Lord Chief Justice Wilmot who held inter alia thus;
“You shall not stipulate for iniquity, no polluted hand shall touch the pure fountain of justice. You shall not have a right of action when you come into a Court of Justice in this unclean manner… Procul! Procul este profani”
Like the Lord Justice Wilmot said, this Court cannot also cave in to the argument of the defendants at paragraph 6.02 of their written address that there is no valid contract of employment between them and the claimant ab initio as they were mistaken as to the contract of employment entered into, so doing will not certainly meet the justice of this case. A Court of law is a Court of justice and where it is shown that there is a breach of contract, parties are to be allowed to ventilate their grievance. Upholding the submission of the defendants will amount to shutting the claimant out of the temple of justice. The judex should not allow itself to be used as a tool to perpetrate injustice. The intention of the parties when they entered into the contract of employment must be given legal effect. That is justice per excellence. The candle of justice should be allowed to brighten the cause of justice and not to becloud it or subsume it into outer darkness. Nay! not at this time and age. The voice of justice must be allowed to echo louder and louder, not to silence or stifle it by allowing a party to unscrupulously deal with another contracting party. It is in the light of all this reasoning that I find and hold that there was a valid contract of employment existent between the parties to the suit. In other words the claimant has a cause of action for which he has correctly ventilated his grievance before this Court. I so find and hold.
Now to the crux of this suit, the grouse for which the Claimant took out a Complaint before this Court against the defendants is that he was offered an Appointment with the 1st Defendant as the Bursar vide a letter dated 1st June 2009, Ref No: FPO/RO/74.S.1 (Exhibit AO3), the appointment was sequel to the Advertisement placed by the 1st defendant, his application letter (ExhibitAO1), invitation to the interview for the position(Exhibit AO2) and eventually his success at the interview conducted. He averred that he accepted the offer to the position of the Bursar vide a letter dated 6th June 2009 written to the Registrar of the 1stdefendant. That, he received a letter dated 28th September 2009, Ref No. FPO/REC/04/296 signed by the Rector of the 1st defendant; Dr. O.M Olatinwo titled “RE: APPOINTMENT AS THE POLYTECHNIC BURSAR”(Exhibit AO4) stating that;
“Following the directive of the Federal Ministry of Education on your recent appointment as the Bursar of the Polytechnic, your appointment has been converted to Acting Status pending further development. You are therefore to function in acting capacity accordingly.”
And again to his utmost dismay, he received another letter dated 2nd October 2008, Ref No FPO/RO/74.S1 (Exhibit AO7) signed by the Acting Registrar of the 1st defendant titled “Termination of Appointment”. It is hence his contention that his appointment as the Bursar of the 1st defendant is for a period of five (5) years from 1st day of June 2009, and his purported termination was malicious.
The defendants on the other hand contested that the Claimant was not the Substantive Bursar of the 1st defendant but an Acting Bursar before his employment was terminated. That for a fact, he did not fulfill all the conditions/requirement to the position of the Bursar of the 1st defendant, he also did not meet the eligibility age for appointment. He was served with a letter converting his appointment to “Acting” Status that which he accepted. That the conversion of some appointees to Acting Status was not only peculiar to him but also affected the Registrar of the 1st defendant as disclosed in Exhibit SG1 and SG2. That on the 16th June 2009, the three Unions of the Polytechnic, ASUP, SSNANIP and NASU wrote a petition to the 2nd defendant that the Claimant’s appointment was in contravention of the Public Service Rule having attained over the mandatory age of fifty (50) years. On the receipt of the complaint, the Federal Minister of Education directed that the position of the Bursar should be advertised and the appointment of the Claimant terminated. That despite the fact that the claimant was only entitled to one(1) month salary in lieu of Notice, they were magnanimous enough to pay him three(3) month salary in lieu which he accepted. This the claimant denied receipt of and the defendant failed to substantiate their claim of payment of salary in lieu of notice to the claimant.
It is the claimant’s claim that the termination of his appointment by the 1st defendant as the Bursar vide the letter dated 2nd October 2009, Ref No FPO/RO/74/S.1 (Exhibit AO7) under the directive of the Federal Minister of Education is invalid, unconstitutional and in contravention of Federal Polytechnic Act, Cap. F17, Laws of the Federation, 2004 and the Staff Manual and Scheme of Service (Conditions of Service) of the 1st defendant. The learned Claimant’s counsel contended that the purported termination was done in contravention of the Claimant’s Constitutional right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution, credence was given to the Apex Court decision in Adigun v. A.G. Oyo State [1987] 1 NWLR (Pt. 53) 678 at page 744. He noted further that the claimant’s termination was solely predicated on petition (Exhibit AO10) which was not sent to him and he was not afforded an opportunity to make proper representation for himself before his appointment was terminated which is contrary to Section 17 of the Federal Polytechnic Act supra. Counsel continued that the conversion of the Claimant’s Appointment to “Acting Bursar” without any reason being adduced and the subsequent purported termination was an indication that he was not allowed to make any representation. Counsel submitted that the observance of the rules of natural justice is mandatory for the defendants by the provisions of Section17 of the Federal Polytechnic Act supra. The learned Defence Counsel in issue two of his written submission argued that the employment of the Claimant was not wrongfully terminated, that there was strict compliance with the terms of his contract of employment, he placed reliance on the case of BFI Group Corp v. B.P.E [2012] 18 NWLR (Pt, 1332) 209 at 234-235, Par H-A, Counsel made a heavy weather as to the nature of the employment relationship existent between the claimant and the 1st defendant, he noted that the only document that the Court can construe in determining whether there is a contract of employment between the parties is the letter of offer of Appointment as the Polytechnic Bursar dated 1st June 2009 and the letter of Acceptance of Offer dated 6th June 2009 (Exhibit AO3), and also that the claimant has not shown that the term of Exhibit AO3 were not complied with, that the claimant being issued Exhibit AO3 did not complain about the term in it, particularly the inclusion of the one month notice in lieu of termination and by Paragraph 32 of their statement of Defence that they were magnanimous enough to pay the claimant three(3) months’ salary in lieu of notice hence he is estopped from contending his termination. Counsel then reiterated the position of the law that the burden of proving termination of employment lies squarely on the claimant who has to discharge the duty placed on him, he cited Akande v. Adisa [2012] 15 NWLR (Pt. 1324) 538 at 558 , Pars A-G, Ujam v. I.M.T &Ors [2011] 24 NLLR 183 at 199 Paras B-C, that in this case, the claimant has not proven that the terms of his employment was breached, the way and manner he was legally removed and that the right of the Defendants to terminate the employment of the claimant is not in doubt as the law is that a master can terminate the employment of his servant at any point, for a good or a bad reason.
Termination of employment literally implies the element of immediacy and cannot be predicated upon a future event, See Keystone Bank Ltd v. Afolabi [2017] LPELR-42390(CA), it means that an employer does not need the services of the employee again, See the case of NITEL Plc v. Akwa [2005] LPELR-5971 CA. Itt is trite law that for an effective termination of a contract of employment, there must be strict compliance with the laid down rules and regulations. It is trite that before the Claimant’s employment is terminated, there must be strict compliance with the regulation governing the employment. See the cases of Igwillo v. CBN [2000] 9 NWLR (Pt 672), Demshemino v. Council Federal Polytechnic Mubi & Anor [2013] LPELR -20845 (CA). It is settled that unless the conditions are followed, such a termination is invalid, See Psychiatric Hospital Management Board v. Ejitagha [2000] LPELR-2930 SC. It is trite law that where an employee contends that the termination of his employment is unlawful as in this instance, the onus is on the employee to discharge the burden of proof placed on him by tendering in support of his case the documents regulating or evincing his/her employment relationship; the terms and conditions of his employment; who can appoint and remove him; the circumstances under which his appointment can be terminated and that his appointment can only be terminated by a person or authority other than the defendants. In addition, it is also important to plead all relevant materials and facts upon which to hinge his claim and to sustain his grouse of unlawful termination of employment. Having done this, the claimant is then required to call credible evidence in proof of the pleaded facts. In the case of Amodu v. Amode [1990] 5 NWLR (Pt. 150)356 at 370 the Apex Court Per Agbaje JSC (As he then was) of Blessed memory, had this to say:
“Since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service , between them, it is for the plaintiff to plead and prove the conditions of contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him”
The cases of Mr. Bendeict Chidobem Ajuzi v. First Bank of Nigeria Plc [2016] LPELR 40459 CA; DR. J.I. Okwusidi v. Ladoke Akintola University [2011] LPELR 4057 CA; Joseph Enugunum & Ors v. Chervon Nigeria LTd [2014] LPELR 24088 CA; are in all apt with the above position of the law
An employment which is clothed with statutory flavor as in this case must comply strictly with the provisions of relevant statute before terminating the claimant’s appointment, See the case of Ibama v. SPDC (Nig) Ltd [2005] 17 NWLR (Pt.954) 364.The Trial Court in the case of Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426 at 450 held that “ the principle is where a contract of service is protected by statute and the removal of a person is predicated upon compliance with statutory provision, non-compliance with the statutory provision renders the removal ultra vires and void..” See also Abdulraheem v. Olufeagba [2006] 17 NWLR (Pt. 1008) 280 at 328, Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 1340 162 at 164, Nnadi v. National Ear Care Centre & Anor [2014] LPELR-22910 CA.
In this instant case, the Claimant tendered in evidence his application letter to the post of a Bursar dated 30th March 2009(Exhibit AO1), the Newspaper Advertisement for the position (Exhibit AO), an Invitation to the interview for the position of the Bursar dated 11th May 2008, Ref No FPO/RO/74/S.1 (Exhibit AO2), the Offer of Appointment as the Polytechnic Bursar dated 1st June 2009 Ref NO: FPO/RO/74/S.1 and the Acceptance of the Offer as Bursar dated 6th June 2009, a thorough perusal of these documents reveals that the Claimant’s appointment is regulated by the Federal Polytechnic Act, Cap F.17, LFN 2004, the Federal Government Public Service Rules 2008 (which is also a relevant statute that governs and regulate the conduct of employees in the Public Service) and more specifically the Federal Polytechnic Offa, Staff Manual and Scheme of Service adapted November 1995(Exhibit AO6). It is the claimant’s argument that the termination of his appointment by the 1st defendant as the Bursar vide the letter dated 2nd October 2009, Ref No FPO/RO/74/S.1 (Exhibit AO7) under the directive of the Federal Minister of Education is invalid, unconstitutional and in contravention of Federal Polytechnic Act, Cap. F17, Laws of the Federation, 2004 and the Staff Manual and Scheme of Service (Conditions of Service) of the 1st defendant. The learned SAN for the defence, in his submission on issue two of his written address argued that the employment of the Claimant was not wrongfully terminated, that there was strict compliance with the terms of his contract of employment. A careful examination of the evidence before the Court reveals that the Minister based on the Petition by the Chairmen of ASUP, SSANIP and NASU on the flawed appointment process of the claimant (Exhibit AO10) issued a directive to the 1st defendant by a letter dated 28th of August, 2008 exhibit SS4 to terminate his appointment. The defendants acting upon the directives of the Minister in its letter dated 2nd of October, 2009 (Exhibit AO7) terminated the appointment of the claimant. The question that arises is can the claimant’s appointment be terminate without following due process as stated in the Act. Alternatively put, is it within the power of the Minister to terminate the appointment of the claimant? In answering this question, I carefully looked at the Act particularly at Section 7(4) of the Act which provides that; “The Minister may give to the Council directions of a general character or relating generally to particular matters (but not any individual person or case) with regard to the exercise by the Council of its functions and it shall be the duty of the Council to comply with the directions.
Now it is obvious that the Minister can issue directives which must be followed by Council. However, with regards to the determination of employment regulated by statute, it is solely a Constitutional issue in the sense that the principle of fair hearing as provided for vide Section 36 of the 1999 Constitution as amended must be adhered by following strictly the provision embedded in the statute which regulates the determination of the claimant’s employment. This is in view of the fact that fair hearing is an inalienable right of an employee and to that extent any other law, rule or regulation which is inconsistent with the provisions of the Constitution shall to the extent of the inconsistency be null and void. See Section 1 (3) of the 1999 Constitution as amended. See the case of Iderima v RSCSC [2005] 16 NWLR (Pt. 951) 378 SC. In that regards, the Minister cannot wake up in his might and glory and brazenly terminate the employment of an employee without compliance with the Act or terms of the contract. It is on this premise that I find that the directive issued by the Minister to the 1st defendant is inconsistent with the provision of Section 17 of the Act and by extension the 1999 Constitution as amended. I so hold. Having held that another question that comes to mind is was the claimant afforded a fair hearing before his employment was terminated? I have to consider the termination of claimant’s appointment under the provision of the Act, i.e. Section 17 of the Federal Polytechnics Act supra which provides for the removal and discipline of academic, administrative and technical staff, the claimant being a principal officer and administrative staff falls into this category,;
If it appears to the Council that there are reason for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than Rector, should have been removed from office on the ground of misconduct or inability to perform the function of his office, the Council shall;
Give notice of those reasons to the person in question;
Afford him an opportunity to make representation in person on the matter to the Council; and
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 to the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and
for the person in question to be afforded an opportunity to 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 and 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.
Also Exhibit AO6 at Chapter 8, page 100 provides on Discipline thus;
“PROCEDURE FOR TERMINATION
The procedure for termination/dismissal shall be in accordance with Edict No. 20 of 1986 Section 31-33 (1) which state as follows:
1. Give notice of the reason to the person in question
2. The Chairman or any other officer of the council shall cause a copy of the signed instrument of removal to be served as soon as possible on the person in question.
3. The council may, by written notice addressed to the person in question, prohibit him from exercising the functions of his office pending the determination of any disciplinary proceeding instituted under this section if it appears to it that such person should be interdicted from his office
4. A person who is under interdiction shall be paid half of his salary:
Provided that if the disciplinary proceeding against such an officer results in his acquittal, the whole salary withheld from him shall be restored to him when the final decisions as to that result is made.
5. If it appears to the Council that there are reasons for believing that any senior staff or the principal officers should be removed from his office or employment on grounds of misconduct or inability to perform the functions of his office or employment, the Council shall:
(a) give notice of those reasons to the person in question;
(b) set up a committee from among the members of the Council and the Academic Board to investigate the matter and to report on it to the Council, where the matter relates to the Deputy Rector, the Registrar or a head of department;
(c) direct the Rector to set up a committee to investigate the matter and report to the Council where the matter relates to any other member of the academic staff or senior administrative staff:-
(i) who is appointed after or allowed to continue in employment beyond retiring age prescribed by the Council.
(ii) whose appointment is not intended to continue until retiring age, and may be removed from office in accordance with the terms of his contract of service or in exercise of powers of disciplinary control conferred in that behalf in or by virtue of the Decree.
(d) make reasonable arrangements 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 he so desires to be accompanied by a representative; and
(e) if the Council is satisfied that the person in question should be removed as aforesaid the Council may so remove him by an instruction in writing signed by the Chairman or any other office of the Council.
……
The Rector exercise such disciplinary functions as may be conferred by the Decree, statutes, and regulations and shall, subject to the provision of the Decree, exercise general supervision and control over discipline in the Polytechnic in such manner as the Rector may deem appropriate.”
From the above stated, it is deducible that prior to his removal from office, he ought to have been given adequate notice for his removal from office and be afforded an opportunity to make proper representation for himself. There is no shred of evidence before this Court to show that the Claimant was issued a notice as prescribed by the Act nor was he afforded an opportunity to respond to the allegation of the age discrepancy levied against him, rather he was issued a letter dated 28th of September, 2009 moving him from being a substantive bursar to an acting bursar before his appointment was finally terminated on the 2nd of October, 2009.There is equally nothing to show that there was an investigating committee set up by the defendants before the Claimant was relieved of his duty neither is there any Report as provided for in Section 17(1)(c)iii of the Act. The Defence Witness under Cross Examination stated that there was even no council meeting conducted prior the termination of the Claimant’s appointment and that the Minister merely gave a directive to Chairman of the council to terminate the claimant’s appointment. All this goes to show that the principle of fair hearing was not adhered in terminating the claimant’s appointment. It is against this backdrop that I find that the failure of the defendants to follow the provisions of Section 17 is a violation of the Claimant’s constitutional right to Fair hearing as provided for in Section 36 of the 1999 Constitution as amended. I so hold.
It is trite that where the Contract of Service enjoys statutory protection as in this instance, such an contract of service can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The Contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions, See Olaniyan v. University of Lagos [1985] 9 NWLR (Pt 599), Eperokun v. University of Lagos [1986] 2 ALL NLR Pg 372, Shitta-Bey v. Federal Republic Service Commission [1981] 1 SC pg 40. It is in view of the above stated supra that I find that the Termination of the Claimant’s appointment by the 1st Defendant as the Bursar of the 1st Defendant vide letter Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 under the purported directives(s) or instructions(s) of the Federal Minister of Education of the 2nd Defendant is a violation of the provisions of Section 36 of the 1999 Constitution and therefore unconstitutional, unlawful, null and void as same is, contrary to the relevant provisions of the Federal Polytechnic Act, Cap. F17, Laws of the Federation, 2004 and the Staff Manual and Scheme of Service (Conditions of Service) of the 1st defendant. See Mr. Camilus Tsenwan & Ors v. Gov. of Plateau State &Anor [2012] LPELR-7922, CA. I so hold.
On Reliefs 5, 7 and 8, it is the claimant’s claim that he is entitled to the payment of all his monthly salary, allowances, accrued benefits and/or all other emoluments by the defendants until after a period of five (5) years beginning from the 1st day of June 2009 to 1st day of June 2014 and also that he should be reinstated as the substantive Bursar of the 1st defendant. It is apposite to state that an indepth perusal of Exhibit AO3 at paragraph 2 provides that “the appointment is a tenure of 5years in the first instance and is renewable for another and final tenure of five years…” this invariably means that the appointment of the claimant is for a fixed term. It is also trite that a person appointed to a post for a term by statute has a right to serve out the statutory term of his appointment, See the case of Achu v. CSC Cross Rivers State [2009] 3 NWLR (Pt 129) 475 CA. Having earlier held that claimant’s appointment was unlawfully determined, another question to ask is. has the 1st defendant determined claimant’s appointment in accordance with the terms in ExhibitAO3, I answer in the negative and state that it is plain from the above paragraph of Exhibit AO3 that his contract was predetermined by Exhibit AO3 to a five year tenure and the decision of the Supreme Court in the case of Shena Security Company Ltd v Afropak Nig Ltd &Ors [2008] 18 NWLR (Pt. 1118) 77 SC, on the significance of a fixed term contract states that; “where the term of service is predetermined at the commencement of the contract. Notice may or may not be in contemplation of the parties. The Proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies” the outcome of the foregoing is that the claimant having been appointed by virtue of the Letter dated 1st June 2009 (Exhibit AO3) has the right to serve for his Five (5) year term and failing which the employer shall be made to pay the amount he would have earned during the unexpired term. This was upheld in the case of Shena Security Company Ltd v Afropak Nig Ltd & Ors supra, that where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period/residue of his fixed contractual term. See also the case of Swiss Nigeria Wood Industries v Bogo [1970] NCLR 423. From the above stated, since the claimant’s appointment has been declared unlawful the appropriate order is to award the claimant the equivalent of his remuneration for the unexpired period of tenure. The import of which is that the claimant is entitled to salaries, emoluments and entitlements for the Five (5) years tenure as damages for a breach of contracts. Hence, it is upon this premise that I find that claimant is entitled to damages in his salaries, emolument and other entitlements as a Bursar of the 1st defendant from the period of 2nd of October, 2009 – 31st of May, 2014. I so find and hold.
On claimant’s claims for reinstatement, Reinstatement connotes in its ordinary and primary meaning to recall the person to the exact position in which he was before his removal that is to restore him to his status quo ante, See Hodge v. Ultra-Electric Ltd [1943] 1 KB 462, Morris v. Gestetener [1973] 1 WLR 1373, Olaniyan & Ors v. Unilag & Anor [1985] LPELR-2565 (SC). Instructively, it is trite principle of law that once a termination of statutory appointment of an employee is declared by the Court of competent jurisdiction to be null and void, the parties are back to the status quo, thus the employee whose appointment was terminated must automatically be reinstated. Differently put, where an employment is statutory as said supra and the statutory procedure for termination was not followed, the right order to make by the Court is to order for the reinstatement of the Claimant back to his position and award damages representing all salaries and entitlement accrued for the period of the purported unlawful termination. See the cases of Baba v. NCTC [1986] 5 NWLR (Pt 42) 524 CA; Bassey v. AG Akwa Ibom State &Ors [2016] LPELR-41244 (CA), Kwara State Civil Service Commission v. Abiodun [2009] (Pt.493) 1315 @1346 paragraphs F-G,FMC Ido –Ekiti v. Olajide [2011] All FWLR (Pt. 593) 1944 @paragraphs C-G. However, there are instances where reinstatement will not be an appropriate remedy to grant in the circumstance and one of such is when the tenure of appointment as in this suit has elapsed. The Court will in the alternative award damages in lieu of reinstatement. See the case of Governor of Ekiti State v Ojo [2006]17 NWLR (Pt. 1007) 95. It is obvious from the facts of this case that it is quite impossible to reinstate the claimant back to his erstwhile position in the employ of the defendants as the tenure of his appointment has lapsed. Nevertheless, I have earlier held that the claimant is entitled to his salaries from 2nd October 2009 till 31st of May, 2014 (expiration of his tenure), it would amount to double compensation to reinstate him to his erstwhile position. It is in view of this that his claim for reinstatement fails. I so find and hold.
Regarding Relief 6, Claimant is praying for the setting aside of the letter titled Termination of Appointment with Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 (Exhibit AO7) issued by the defendants to the claimant, having held supra that the termination of the Claimant’s appointment is null and void, the appropriate order to make at this stage is to set aside the purported letter of termination dated 2nd October 2009, consequently, the letter of termination of claimant’s appointment dated 2nd October is hereby set aside. I so hold.
On the claimant’s claim for injunctions in his reliefs 9-13, It is the contention of the learned defence Counsel in his written address that the Claimant’s reliefs 9-13 are dead on arrival as this Court cannot grant injunction on completed act, he cited Ideozu v. ochoma [2006] 4 NWLR (Pt. 970) 364 at 385, Paras B-G, he argued that the claimant having not been validly appointed as a Bursar in the first place cannot lay claim to benefit for an order of injunction. The Claimant on the other hand admitted at page 30, paragraph 7.05 of his written address that the reliefs relating to injunction may not be granted that the acts having been completed by the defendants. The Apex Court in Babatunde Adenuga & 5 Ors v. K. Odunewu & Ors [2001] 2 NWLR (Pt. 696) 184 at 195 as per Karibi Whyte JSC defined injunction thus: “An injunction is an equitable order restraining the person whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of specified act. A Claim for injunction is a claim in equity”. The order of injunction is available to restrain the defendant from the repetition of the continuance of the wrongful act or breach of contract complained of Egan v. Egan [1975] 2 All ER 167. It is generally granted to protect a legal right which is in existence. See Union Beverages Ltd v. Pepiscola International Ltd & Ors [1994] 3 NWLR (Pt330) 1 SC. This is with the object of keeping matters in status quo until the question at issue between the parties is determined-Okafor v. Nnaife [1987] 4 NWLR (Pt. 64) 129, Odumegwu Ojukwu v. Lagos State Government [1986] 3 NWLR (Pt. 26) 39. The Applicant must show that he has sufficient interest in the subject in the relief sought-See Abiodun Akerele v. Chief Obafami Awolowo & Anor [1962] WNLR, 220, 224. It is long settled that one major consideration for the grant of an injunctive relief is the compelling interest at stake, See Okoli v. Duru [2007] All FWLR (PT 367) 887 at 926, para F-G (CA). The Court must exercise discretion in the grant of injunctive reliefs of this nature, it is evident from this case that the act complained of by the Claimant is already a completed act in view of the fact that the defendants have taken step to employ another person to the claimant’s erstwhile position being a tenured appointment and also that the content of the termination letter have been implemented by the defendants. It is on this premise that I find that the claimant’s injunctive reliefs cannot be granted as events has overtaken it, it thus fails. I so hold.
It is important at this stage to commend the two learned silk for their display of Professionalism, display of indepth knowledge of the law and candor in the conduct of this case.
In conclusion, the claimant’s claims succeeds in part. For the avoidance of doubt, and for clarity purposes, I hereby declare and make orders as follows:
That the Minister is not a necessary party to this suit.
That a valid contract of employment existed between the claimant and the defendants.
That the Termination of the Claimant’s appointment by the 1st Defendant as the Bursar of the 1st Defendant vide letter Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 under the purported directives(s) or instructions(s) of the Federal Minister of Education of the 2nd Defendant is a violation of the provisions of Section 36 of the 1999 Constitution and therefore unconstitutional as well as the provisions of the Federal Polytechnic Act, Cap. F17, Laws of the Federation, 2004 and the Staff Manual and Scheme of Service (Conditions of Service) of the 1st defendant.
That the Letter of Appointment with Reference No. FPO/RO/74/S.1 dated the 1st day of June, 2009 (Exhibit AO3) issued by the 2nd Defendant appointing the Claimant as the Substantive Bursar of the 1st Defendant is valid.
That the claimant is entitled to all his salaries and other entitlements from the 2nd October 2009 till the expiration of his tenure on 31st May, 2014. This is to be calculated and paid to him within 30 days of this judgment failing which it is to attract 10% interest per annum.
That the letter titled Termination of Appointment with Reference No. FPO/RO/74/S.1 dated 2nd day of October, 2009 is set aside.
Relief 7, 8, 9, 10, 11, 12, 13 fail.
I make no order as to cost.
Judgment is accordingly entered.
Hon. Justice Oyebiola O. Oyewumi
Presiding Judge.
