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National Industrial Court

Prof. Sinyeofori A. Brown -VS- University of Port Harcourt,& 2 Ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT-HARCOURT JUDICIAL DIVISION

HOLDEN AT IBADEN

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: March 20, 2020

 

Suit No: NICN/PHC/02/2017

 

Between:

 

Prof. Sinyeofori A. Brown              ———————————–                Claimant

 

And

 

  1. University of Port Harcourt, (Uniport)
  2. The Vice Chancellor, Uniport.       ——————————–    Defendants
  3. The Registrar and Secretary to Council University of

Port Harcourt

 

Representation:

U.A. Umoetok for the Claimant.

G.J. Okirigwe for the Defendants with him are: C.N. Nworgu (Mrs.), T.T. Walter (Miss) and S.J. Akpofe (Mrs.)

COURT’S JUDGMENT

 

  1. On May 22, 2017 the claimant filed this complaint against the defendants seeking for the following reliefs:
  2. A declaration that the purported withdrawal of professorship, from the Claimant by the Governing Council of the University is not only a demotion in the academic status, rank or office of the Claimant and a retrospective disciplinary action against the Claimant for an undisclosed wrong but a callous truncation of the claimant’s career and means of livelihood
  3. A declaration that the Governing Council of the University of Port Harcourt, in the circumstance of this case, is not vested with the power or legal authority to withdraw from the Claimant and or deprive him of his academic status of professorship.

iii.      A declaration that the publications in the University’s Post Graduate Prospectus 2016/2017 stripping the Claimant of his professorship, and the Defendants’ letter of 2/3/2017 written to accentuate the publication in its prospectus are defamatory of and about the claimant.

  1. An order restraining the Defendants, particularly the 2nd and 3rd Defendants, acting for and on behalf of the 1st Defendant, from further attempting to deprive the Claimant of his professorship or to assert any measure of discipline or control on, over or against the Claimant.
  2. An order setting aside and nullifying the withdrawal of Professor Sinyeofori A. Brown’s Professorship of Pharmaceutics and Pharmaceutical Technology.
  3. An order compelling the defendants to deliver an apology and a retraction of the defamatory publication to the Claimant.

vii.    Payment of N500,000,000.00 general damages.

viii. Payment of N10,000,000.00 special damages.

 

Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their statement of defence together with other processes in compliance with the Rules of this Court.

 

  1. CLAIMANT’S CASE AS PLEADED

The case of the claimant is that he was employed by the 1st Defendant on a renewable Contract Appointment on November 3, 2008 and that contract appointment came to an end on January 27, 2017.  While still in the service of the 1st Defendant, sometime in the year 2011 the claimant applied for the elevation of his academic status to the rank of Professor. The claimant’s application was considered and that he was subjected to the well-established procedure and rigours of internal and external assessment interviews. Consequent upon favourable assessment and interview report made to the Governing Council of the 1st defendant, the claimant’s academic status was elevated to the rank of professor with effect from October 19, 2011. However, without any justification, the defendants purportedly withdrew the claimant’s professorship; years after same was confirmed on him, on the ground that the claimant’s elevation to the rank of Professor was made in error.

 

  1. THE DEFENDANT’S CASE AS PLEADED

On the other hand, the case of the defendants is that; the claimant was formerly a contract staff of the 1st Defendant who was promoted to the rank of Professor by the University while he was a contract staff in error. The defendants contended that the withdrawal of the Professorship of the claimant was proper because as a contract staff, the terms of employment of the claimant do not entitle him to such promotion. They went on that, the claimant’s unmerited elevation to the rank of a professor was a product of fraud deliberately perpetrated by him to assume a position or an office which, to his knowledge, he is not eligible for and/or entitled to having regards to his work profile/history and his employment status as a contract academic lecturer with the 1st defendant.

 

During hearing of the case, the claimant testified as CW3 and called 2 other witnesses namely; Professor Oleka K. Udeala who testified as CW1 and Professor Joseph Otuboki Ajeyinkawho who testified as CW2 respectively. The defendants called one witness; Promise Egbudike Cholem Simeon who testified as DW1. In line with the Rules of this Court, counsel were directed to file their final written addresses by the Court and they complied with the said direction.

 

  1. DEFENDANT’S WRITTEN ARGUMENTS

In his final written address, counsel to the defendants raised issues for determination thus:

  1. Whether the subject matter of the claimant’s suit is within the subject matter jurisdiction of this Honourable Court and if not, whether the suit is not liable to be struck out and or dismissed in all the circumstances of this case?
  2. Whether the claimant’s suit as presently constituted is competent and properly constituted against juristic persons known to law and if so, whether the claim discloses any reasonable cause of action against any of the 1st, 2nd and 3rd Defendants, in all the circumstances of the case?

iii.   Whether upon a proper consideration of the pleadings and evidence adduced by the claimant as well as the relevant legal guidelines for the exercise of judicial discretion for the grant of declarations, the Claimant can be said to have made out a proper case and is entitled to the grant of any of the reliefs sought in this case against the Defendants?

 

  1. Arguing issue one, counsel submitted that the claimant’s suit in this case is outside the subject matter jurisdiction of this Court and in consequence, this Court lacks the competence or jurisdiction to entertain or determine the claim; citing CBN v. SAP Nig. [2005] 3 NWLR (Pt. 911) 152 at 177; Madukolu v. Nkemdilim [1962]1 All NLR 587 at 595 and Salati v. Shehu [1986] 1 NWLR (Pt. 15) 198 at 218.

Counsel went on that by paragraphs 1 to 27 of the Statement of Claims, the subject matter of the claimant’s suit is all about the claimant’s displeasure with the executive or administrative action of the 1st defendant in withdrawing, stripping off and or depriving him of his Professorship when he was no longer its employee or under its management and control and the publication of the said withdrawal; which he considers defamatory for portraying him as a dishonest person.

  1. Arguing on the area of court’s jurisdiction to hear this case, counsel submitted that the  jurisdiction of the National Industrial Court of Nigeria, which is exhaustively codified and majestically set out in Section 254(C) (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, he contended that the claimant’s claim which challenges the validity of the executive or administrative decision or action of the 1st Defendant of withdrawing the professorship of the claimant falls outside the subject matter jurisdiction of this Court but rather falls squarely within the exclusive jurisdiction of the Federal High Court pursuant to Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Counsel referred the court to paragraphs 13 and 21 of the Statement of Claim, FAAN v. Bi-Courtney Ltd. & Anor [2011] LPELR-19742(CA) page 49 – 50 paragraphs F – E. Counsel submitted that any action or proceedings as in this case, seeking for declarations or injunction affecting the validity of any of the executive or administrative actions or decisions of the University of Port Harcourt must necessarily fall squarely within the exclusive jurisdiction of the Federal High Court and cannot therefore be entertained or determined by this Court or any other Court, citing Ademola v. Adetayo & Ors [2004] LPELR-12487(CA) page 16 paragraphs D – E and NEPA v. Edegbenro [2002] LPELR-1957 (SC).

 

  1. Counsel went on that the second limb of the claimant’s claim, which relates to damages for defamation of character, predicated on the tort of libel is also not within the subject matter jurisdiction of this Court as set out above, particularly as it has not been shown to arise from a subsisting employer/employee relationship or in the course of industrial relations. Counsel submitted that Libel and defamation of character are civil wrongs in the realms of torts law and does not come within the meaning of labour and industrial disputes as known to law and is therefore outside the subject matter jurisdiction of this Court citing Bisong v. UNICAL [2016] LPELR-41246 (CA) page 37 to 38 paragraph E, that this Court has no jurisdiction to entertain or determine the Claimant’s claim founded on the tort of defamation, citing National Electoral Commission v. Uboh [2001] FWLR (Pt. 55) 501 at 509 paragraphs A – B that the suit is liable to be struck out and the trial rendered a nullity.

 

  1. Arguing issue two of whether the matter is against juristic persons and whether there is any reasonable cause of action against the defendants, counsel submitted that none of the above named defendants is a natural person or a juristic person known to law and as such, that the claimant’s suit is not properly constituted and is; therefore, liable to be struck out for incompetence. He continued that the law is well settled that the right to sue and be sued is only available to natural persons or juristic personalities recognized by law, citing Fawehinmi v. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt. 105) 558 at 596 . Counsel contended that the 1st Defendant on record is: “University of Port Harcourt Port Harcourt (Uniport)”. That the Claimant who filed the action against it, pleaded in paragraph 2 of the Statement of Claim that the 1st Defendant is a Federal University established by the University of Port Harcourt Act. Contrary to the claim of the Claimant, there is no such entity or name conferred with juristic personality under the Act but rather, the person created by the said statute is THE UNIVERSITY OF PORT HARCOURT. That the 1st Defendant on record is therefore not a juristic person known to law as there is no such person or entity created under the University of Port Harcourt Act pleaded by the Claimant in paragraph 2 of the Statement of Claim referring to section 1 of the University of Port Harcourt Act.

 

  1. On the 2nd and 3rd Defendants on record; “The Vice Chancellor, Uniport”, and “The Registrar and Secretary to Council University of Port Harcourt”; counsel argued that both are neither a natural person nor a juristic persons known to law. That while both are creation of under section 2 of the University of Port Harcourt Act, they are both without juristic personality and cannot therefore sue or be sued under the law, citing Maersk Line & Anor v. Addide Investment Co., Ltd., [2002] LPELR-1811(SC) page 30 to 31 paragraphs F – B and T. M. Lewin Nig. Ltd v. Smart Mark Ltd [2017] LPELR-43136 (CA) page 9 – 10 paragraphs D – C. Counsel urged the court to strike out the names of the 1st, 2nd and 3rd Defendants on record and indeed the entire suit for incompetence and want of jurisdiction.

 

  1. Furthermore, counsel submitted that the pleaded case of the Claimant in the Statement of Claim fails to disclose any cause of action or reasonable cause of action against any of the 2ndand 3rd Defendants; relying on the entire 27 paragraphs of the Statement of Claim; Cookey v. Fombo [2005] 15 NWLR (Pt. 947) 182 at 202 paragraphs E – F; Rebold Ind Ltd v. Magreola [2015] 8 NWLR (Pt. 1461) 210 at 225 Para B – C; Usman v. Baba [2005] 5 NWLR (Pt. 917) 113 at 134 and Ibrahim v. Osim [1988] 3 NWLR (Pt. 82) 257 at 267. Counsel submitted that the claimant has not disclosed what legal rights he has (if any), that the 2nd and 3rd Defendants might have breached to confer on him a cause of action against the 2nd and 3rd Defendants. No wrong has been alleged against the 2nd and 3rd Defendants by the claimant and as such, no cause of action or reasonable cause of action is disclosed. Therefore, the Court is entitled to dismiss the Claimant’s suit against the 2nd and 3rd Defendants; citing Chief Dr. Irene Thomas & Ors. v. The Most Rverend T. Olufosoye [1986] 1 NWLR (Pt. 18) 669 at 682-683 and Farasco Nigeria Ltd & Anor. v. Peterson Zochonis Industries Plc. [2010] LPELR-4142 (CA) page 20 paragraphs A – C.

 

  1. Arguing issue three, counsel submitted that in matters of declarations of rights, the claimant is required to plead and prove his entitlement to the declarations sought by cogent and compelling evidence and not based on admissions, default of defence or on the weakness of the defence; citingBello v. Eweka [1981] 1 SC 101 – 102, 177 and Atanda v. Ajani [1989] NWLR (Pt.111) 511.
  2. On the statute of limitation, counsel referred the court to paragraphs 15, 16 and 17 of the Statement of Claim and submitted that the publication, which was made between January and March 2016 is caught by the provisions of section 2(a) of the Public Officers Protection Act Cap.379, Laws of the Federation, 1990 which stipulates a limitation period of 3 months for wrongs allegedly done by public officers in the course of the discharge of their duties; relying on Aremo (IV) v. Adekanye [2004] All FWLR (Pt. 224) 2113 at 2131 – 2132 paragraph E – F; Gulf Oil Co. (Nig.) Ltd. v. Oluba [2002] 12 NWLR (Pt. 780) 92 at 112 paragraph F – G, 113 paragraph C – G and Agi v. FCMB Plc. [2013] LPELR-20708(CA) pages 54 to 57 paragraphs A – D.

 

  1. Referring to paragraph 5 of the Claimant’s Reply to Statement of Defence filed on July 17, 2017 counsel submitted that the Claimant has withdrawn his cause of action or claim relating to or founded on the publication of the Post Graduate Prospectus and all pleadings relating thereto and the claims or reliefs founded thereon in the Statement of Claim are deemed abandoned, spent or withdrawn and should accordingly be discountenanced or struck out by this Court. He continued that the law is well settled that the purpose of pleadings is to define the issues in dispute and to tie the hands of the parties so that they cannot depart from their pleaded case or spring a surprise on the adverse party; citingPrince Olusoji Ehinlanwo v. Dr. Rahman Olusegun Mimiko [2013] LPELR-20321(CA); Fubara Akibiyi Iyagba v. Hon. George Thompson Sekibo [2008] LPELR-4346(CA); NMA v. Marine Management Associates INC. [2008] LPELR-4583 and Abdullahi & Anor v. Mamza [2013] LPELR-21964(CA).

 

  1. On failure to plead and prove publication of the alleged defamatory matter to any particular person, counsel referred the court to paragraphs 14, 22 – 26 of the Statement of Claim and submitted that there is no pleading that the letter was published to any other person other than to the claimant himself and as such, the claim for libel is not proved because publication to a third party is at the heart of libel and without such pleading or evidence the claim must fail and be dismissed; citingBashorun & Ors v. Ogunlewe [1999] LPELR-6006 (CA) page 7 to 8 paragraphs F – B and Enertech Eng. Co. Ltd v. Alpha Praxis Nig. Ltd [2014] LPELR-41105(CA) page 9 to 10 paragraphs C – A.

 

  1. On failure to plead the name and identity of any third party to whom the alleged defamatory matter was published, counsel also submitted that there is no evidence or pleading of publication to any third party of the alleged defamatory letter and this is also fatal to the claim of the claimant because publication to a named or identifiable third party is mandatory and essential to found a claim of libel and defamation; citingOgbonnaya v. FBN Plc. (2015) LPELR-24731(CA) page 24 to 25 paragraphs E – E and Popoola v. Edobor & Ors (2017) LPELR-42539(CA) page 20 to 21 paragraphs D – C.
  2. On failure to plead and adduce credible evidence to show that the University of Port Harcourt has no power, right or authority to withdraw and or revoke the professorship of the claimant, which was awarded in error by the University, counsel referred the court to paragraphs 1 to 27 of the Statement of Claim and submitted that the claimant woefully failed to adduce credible evidence to prove these allegations as to be entitled to the declaratory reliefs sought in this case, citingBello v. Eweka [1981] 1 SC 101 – 102, 177 and Adekunle v. UBA Plc. [2016] LPELR-41124 (CA) page 20 to 21 paragraphs C – A.

 

17.CLAIMANT’S WRITTEN ARGUMENTS

Counsel to the claimant contended this way in his final written address: on the issue of jurisdiction of the court, he maintained that Section 7(1) – (6) of the National Industrial Court Act, 2006 and Section 254(C )(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, give exclusive jurisdiction to the National Industrial Court to hear and determine disputes arising from, connected to or related to employment; referring to Gasikiy Textile Mills Plc. v. Khosla (supra) which was cited and reproduced by the Defendants’ Counsel in his final address.

  1. On ground of Incompetence of the suit for non-juristic defendants, counsel submitted that the name of the 1stdefendant is University of Port Harcourt, not The University of Port Harcourt as erroneously canvassed by the Defendants. He went on that the Act that established the 1st defendant; CAP. U13, Laws of the Federation of Nigeria, 2004 is University of Port Harcourt Act. Referring to Section 1(1) of the Act, he maintained that the name of the University is ‘University of Port Harcourt’. He submitted that the use of the definite article “the”, by the draftsman of the Act in expressing the establishment of the University does not make it part of the name of the body so established. He further submitted that the offices of Vice- Chancellor and that of the Registrar of the 1st defendant are creations of statute with well-defined functions imbued with the legal personality and so, they are proper parties before Court; citing Carlen Nig. Ltd v. University of Jos [1994] 1 NWLR (Pt. 323)631 quoted with approval in the recent case of S.P.R.D. v. Min. of FCT & Ors [2018]285 LRCN 1.

 

  1. Counsel went on toformulate a sole issue for determination of the court as:

Whether the claimant has made out a case to justify the grant of the reliefs sought.

Arguing the said issue, counsel maintained that the Claimant called two witnesses and that he testified on behalf of himself; he also tendered 20 exhibits, all of which eloquently support the fact that the Claimant, in his quest for elevation to the enviable and coveted rank of professor, complied with the established procedures. He went on that CW1 and CW2 were actively involved in the process as Dean of Faculty and Vice Chancellor of the University, respectively at the material time. He continued that these two testified to the credibility of the process and were indignant at the allegation that the rank was given in error or by fraud. They further testified that the defendants have no power to de-rank the claimant as they did.

  1. Counsel went on that by paragraphs 7, 8, 9, 10 and 11 of his evidence-in-chief, the claimant testified to his eminent qualification and favourable assessment at the instance of the defendants. He continued that by the operation of Section 168(1)(2)(3) of the Evidence Act, 2011, there is the presumption of regularity of these official acts, that every instrument was executed which was the legal duty of the defendants to execute in order to perfect the claimant’s title. To counsel, this is so, particularly as the Claimant was not cross-examined on these issues. He went on that the law is trite that failure to cross-examine the witness on material points lend credence to the case of the adversary citing,Akpagher v. Gbungu [2015]1 NWLR (1440) 209 at 233 and Alechenu v. University of Jos [2015]1 NWLR (1440) 333.
  2. On the claim of the claimant before the court, counsel urged the court to declare that the purported withdrawal of professorship from the Claimant by the Governing Council is not only a demotion in the academic status, rank or office of the claimant and a retrospective disciplinary action against him for an undisclosed wrong but that it is a callous truncation of the claimant’s career and means of livelihood. Also that the Governing Council of the University of Port Harcourt, in the circumstance of this case, is not vested with the power or legal authority to withdraw from the claimant and or deprive him of his academic status of professorship. He urged the Court to further make an order restraining the defendants, particularly the 2nd and 3rd defendants, acting for and on behalf of the 1st defendant, from further attempting to deprive the claimant of his professorship or to assert any measure of discipline or control on, over or against the claimant. Again, he urged the Court to grant an order setting aside and nullifying the withdrawal of Professor Sinyefori A. Brown’s professorship of Pharmaceutics and Pharmaceutical Technology.
  3. On the order of payment ofN500,000,000.00 (five hundred million naira) as general damages and N10,000,000.00 (Ten Million Naira ) as special damages, counsel submitted that a claim for special damages must be specifically pleaded and strictly proved as the claim for special damages succeeds only in respect of actual and not estimated or anticipated loss; citing UBN Plc. v. Nwankwo [2019] 3 NWLR (1660) 474 at 483, Ibrahim v. Obaje [2019] 3 NWLR (1660) 393 at 406 and Universal Trust Bank of Nigeria v. Ozoemena [2007] 2 SCM 173 at page 201 and Ajigbotosho v. R.C.C. Ltd. [2018] 281 LRCN 57 at 82. That, in this case the claimant has pleaded and adduced evidence in proof of his claim for N10,000,000.00 (Ten Millon Naira Only) special damages being his Solicitor’s charge for the prosecution of the case, referring to the receipt of part payment of legal fees issued by the firm of claimant’s Counsel; Lex Fori Partners, dated 9/5/2017 and admitted and marked as Exhibit C. 16. In addition, counsel submitted that the action of the defendants in unilaterally withdrawing the claimant’s well-earned and deserved professorship (without an equivalent cancellation of the degrees, the accreditation and the services he delivered to the university as professor from 2011 to 2017) and finding him guilty of obtaining the rank of professor by fraud, as pleaded by the defendants, without any form of hearing by his accusers and on the basis of which he was denied post service opportunities as professor, discloses malice, cruelty, insolence, flagrant disregard to the Rule of law and no human consideration for the claimant and urged the Court to so hold.

23.COURT’S DECISION

I have gone through the facts of this case, the written arguments of counsel to the parties and their cited authorities; from all of this I am of the humble view that the following issues are to be resolved between the parties:

  1. Whether or not the subject matter of the claimant’s suit is within the jurisdiction of this Court and if not, whether the suit is not liable to be struck out or dismissed in the circumstances.
  2. Whether or not the claimant’s suit is competent and properly constituted against juristic persons and if so, whether the claims disclose reasonable cause of action against any of the defendants in the circumstances of the case.

iii.            Whether or not the claimant is entitled to the grant of any of his reliefs sought against the Defendants in this case.

 

  1. On whether this court has the jurisdiction to hear this case

It is trite that Jurisdiction of a court is the lifeline of any action. It is the blood that gives life to the survival of an action in a court of law. A court without jurisdiction therefore, automatically lacks the competence to try the case and where a court lacks jurisdiction then it has no power to make orders affecting subsequent determination of the case on its merit. Such court lacks authority to exercise any control in relation to the suit or to make any pronouncement on the rights and duties between the parties; see the cases of Dada v. FRN [2016] 5 NWLR (Pt. 1506) CA 471 at 578-579 para G-B and Effiong Ors v. Ebong [2015] 63 NLLR (Pt. 223) 310 at 340.

Counsel to the defendants contended in paragraphs 4.6 to 4.8 of his final written address that the claimant’s claim challenging the validity of the executive or administrative decision of the 1st defendant in withdrawing the award of professor earlier given to him by the 1st defendant falls outside the jurisdiction of this Court. To counsel, it rather falls squarely within the exclusive jurisdiction of the Federal High Court pursuant to Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

  1. In paragraphs 7 and 8 of the claimant’s final written address, his counsel argued that Section 7(1) – (6) of the National Industrial Court Act, 2006; which codifies Section 254(C) (1) of the Constitution of the FRN, 1999 gives exclusive jurisdiction to this Court to hear and determine disputes arising from, connected with or related to employment.

By paragraphs 6 to 14 of the Statement of Facts, it is before the court that sometimes in the year 2011, while in the service of the 1st Defendant, the claimant applied for the elevation of his academic status to professorship and upon his elevation to the rank of professor, he continued to work diligently in the service of the 1st defendant until January 30, 2017 and March 2, 2017 when he received letters terminating his contract of appointment and also withdrawing his professorship respectively.

  1. In Exhibit C.11 (a), the letter titled ‘withdrawal of professorship’ dated March 2, 2017 at page 30 of the record; the withdrawal is effective from December 15, 2014. This means that the letter was issued to take effect retrospectively when the claimant was still very active in the employment of the 1stdefendant. In the circumstances, I find that the claimant was an employee of the 1st defendant as a lecturer at the material time during which, he applied for the award of a Professor and he was so awarded by the 1st defendant. I further find that after the claimant was awarded the rank of a Professor, he worked for the 1st defendant before his employment was terminated and his professorship withdrawn from him on the ground that it was awarded to him in error.

 

In essence, the subject matter of this case arose from the employment relationship between the parties and the issue of award of professorship and the withdrawal of same arose after the claimant’s employment was terminated as a consequential action, which is connected with and related to the claimant’s employment relationship with the Defendants. Therefore, I hold that this Court has the jurisdiction to hear and determine the subject matter of this case.

 

  1. On whether this court has jurisdiction on issues of defamation as set out in reliefs c and f. before the Court.

These reliefs are as contained in paragraph 27(c) and (f) of the Statement of Facts, and prima facie, issue of defamation falls under law of tort; which ordinarily, this Court will not have jurisdiction to try, unless the defamatory statement stemmed out directly from labour or employment issues, see section 254C (5) of the Constitution of the FRN, 1999 (As Amended). The claimant has the burden of satisfying the court with facts and evidence on this issue before the Court will assume such jurisdiction but, which burden the claimant has not discharged in this case. See section 131 of the Evidence Act, 2011. Consequently, I hold that the claimant has not satisfied the Court that he was actually defamed with the publication in question by showing the adverse effect of the publication on him. Relief c & f of the claimant as endorsed on his complaint are hereby struck out for lack of jurisdiction.

 

28.On whether the suit is properly constituted against defendants and whether same discloses reasonable cause of action against them

In paragraph 5.4 (i), (ii) and (iii) of the defendants’ final written address at 232 to 233 of the record, their counsel submitted that the 1st defendant on record is “University of Port Harcourt Port Harcourt (Uniport)” contrary to the person created by the said statute, which is The University of Port Harcourt. To counsel, the University of Port Harcourt has not been sued in its corporate name in this case and the name of 1st defendant on record is not its proper name in the Act. Therefore, the claim of the claimant is miss-constituted.  Counsel went on that the 2nd and 3rd defendants on record; “The Vice Chancellor, Uniport” and The Registrar and Secretary to Council University of Port Harcourt”, are neither natural persons nor juristic persons known to law, he urged the Court to so hold.

 

  1. It is true that section 1(1) of the University of Port Harcourt Act, Cap U13 LFN, 2004 established the 1stdefendant as the University of Port Harcourt. My considered view is that, the failure of the claimant to add the article “the” to the name of the 1st defendant which he stated as “University of Port Harcourt” is merely a misnomer that does not affect the substance of this case. The law is that a misnomer occur when the correct person is brought to court under a wrong name; see Emespo j. in Continental Ltd v. Corona **Shifah-Rtsgesllschaft MBH & Company ( The Owners of “M.V. Concordia”) [2006] NWLR  (Pt. 991) Page 365 at 378 para A-C. Consequently, I hold that the 1st defendant is the correct defendant that the claimant intended to sue. I further hold that the failure to attach the article “the” to the name of the 1st defendant as canvassed by the defendants’ counsel does not defeat the personality of the 1st defendant in this case. I again hold that the 1st defendant is properly sued in this case.

 

  1. On the legal status of the 2ndand 3rd defendants in this case,

The 2nd and 3rd defendants in this case are the Vice Chancellor and the Registrar and Secretary to Council of University of Port Harcourt. They are office names, which are created by sections 4 and 6 of the University of Port Harcourt Act, Cap U13 LFN, 2004. These offices are not created with power to sue and be sued by the Act. In essence, the 2nd and 3rd defendants are not juristic persons capable of being sued in Law and I so hold. It is trite that a claimant commencing an action and the person to be made defendant to the action must be juristic persons or natural persons existing at the time the action was commenced, otherwise the action will be incompetent and the court will lack jurisdiction to entertain it. See LASTMA v. Esezobo [2017] 5 NWLR (Pt. 1559) CA 350 at pp. 335-336 paragraphs F-A. Therefore, having held that the 2nd & 3rd defendants are not juristic persons, their names are accordingly struck out as defendants and all claims against them by the claimant are struck out as well in this case.

 

31.On whether the claimant’s claims disclose any reasonable cause of action against the Defendants in this case

A reasonable cause of action in general terms means a fact or a combination of facts which if proved would entitle a Plaintiff/claimant to a remedy against a defendant. See the cases of Pfizer Specialties Ltd. v. Chyzob Pharmacy Ltd. & Ors [2006] LPELR-11780(CA). I have held above that the 2nd and 3rd defendants are not juristic persons capable of been sued in the circumstance of this case and I have struck out their names as defendants including all reliefs against them. In paragraphs 1, 2, 6, 11, 12, 16, 17 and 21 of the Statement of Facts, it is before the court that claimant was employed by the 1st defendant and that while in the service of the University, he applied for his elevation to the academic status of a Professor, which was granted by the 1st defendant but was later withdrawn. To the claimant, the Governing Council of the 1st defendant has no power to withdraw his Professorship or to deprive him of same. In view of these finding of facts before the Court, I hold that there is a reasonable course of action against the University of Port Harcourt before this court of which if the claimant succeeds in proving, will entitle him to a remedy against the 1st defendant.

 

32.On Whether the Claimant’s Case is Barred By the Provision of the Public Officers’ Protection Act.

In paragraphs 7.2 to 7.6 of the 1st defendant’s final written address, its counsel raised the issue of applicability of the provision of section 2(a) of the Public Officers’ Protection Act to the claimant’s claim of defamation to the publication of the withdrawal of his Professorship made between January and March 2016; and that because this matter was filed on May 22, 2017 more than a year after the alleged publication, instead of being filed within three months as provided in section 2(a) of POPA; this case is barred by section 2(a) of the POPA.

However, I have held above that the claimant has not satisfied the Court that he was actually defamed with the publication in question. This means that this court does not have jurisdiction to entertain defamation in the circumstance of this case.. Therefore, the life issue of the defamatory publication of the withdrawal of the Professorship of the claimant between January and March 2016 being statute barred is otiose. Besides, the current position of this Court on the provision of the Public Officers’ Protection Act is that section 2(a) of this Act no longer applies to employment matters by virtue of the recent decision of the Supreme Court on the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors. v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt. 1656) 247 @ 270-271. See also the unreported decision of this Court on the case between Mr. Alukwe Okpara v. Attorney General of Rivers State & 1 Ors, Suit No: NICN/PHC/87/2017; Ruling of which was delivered on October 14, 2019. Consequently, I hold that the provision of the Public officers’ Protection Act is not applicable to the claimant’s case.

33.Whether the withdrawal of the claimant’s Rank of Profeessor was justified.

The position of the claimant on this issue is that having followed due process in elevating him to the rank of a Professor by the University, the 1st defendant cannot withdraw that rank from him under a flimsy excuse that he was elevated to that rank in error. On the other hand the main reason for the defendant’s withdrawal of the rank of Professor from the claimant is that the claimant did not disclose to the University that he was a contract staff/employee/lecturer at the material time. See paragraphs 5 of the Statement of Defence where the defendant admitted that the University elevated the claimant to the rank of a professor in error. By this admission, I hold that, in line with the provision of section 136 of the Evidence Act 2011, the defendant now has the burden of proofing that its elevation of the claimant to the rank of a Professor was made in error and that its withdrawal of same is justified.

 

34. In discharging this burden, the defendant maintained in paragraphs 5, 6, 8 & 10(a) of the Statement of Defence that its Governing Council elevated the claimant to the rank of a Professor of Pharmaceutics in error and in paragraphs 18 (a) to (f) of the Statement of defence at page 51 of the record, under the headings “particulars of fraud” the defendant stated that the claimant was not eligible for the elevation after being in the pensionable appointment with the River State Government. In paragraphs 18 (d) the statement of Defence, at page 51 of the record, it is the case of the defendant that the claimant was fully aware of the internal memo of the Registrar of the 1st defendant dated 24th of October 2011, stating his conditions of service as a contract employee circulated to the provost, Deans of Faculties and HODs of the 1st Defendant; yet he still submitted and /or fraudulently forwarded his papers/publications to be elevated to the rank of a Professor. Furthermore, in paragraphs 18 (f) the Statement of Defence, at page 51 of the record, the defendant again stated that at the time material prior to the Claimant’s mistaken/erroneous elevation to the rank of professor, the claimant totally concealed from the Promotion Committee and the Governing Council of the defendant; the fact that he was a contract staff, not withstanding his letter of 7th November, 2014.

35.    I find it hard to accept this line of facts/argument of the defendant in its depositions particularly in paragraphs 18 (f) the Statement of defence that the Claimant totally concealed from the Committee and the Council the fact that he was a contract staff. This is because, in the defendant’s evidence via Exhibit D.2 at page 117 of the record, the claimant applied for employment from the defendant as a contract staff and this Exhibit is dated October 6, 2008. On August 13, 2010 the defendant gave the claimant contract appointment via Exhibit D3 as a Senior lecturer; see page 118 of the record. See again the Acceptance Letter of January 02, 2009 to an earlier contract appointment issued to him by the defendant dated November 3, 2009; Exhibit D4 at page 119 of the record. In addition, the defendant exhibited the “Curriculum vitae” of the Claimant at 114 as it Exhibit D.1 in which it is clearly stated that the claimant worked with the Rivers State Government at a point.

 

36. With all these facts before the Court, the defendant will not be heard or allowed to argue as it did that it was not aware that the claimant was a contract staff/lecturer with the University when he applied for and he was elevated by the University to the Rank of a Professor. The defendant will also not be allowed to deny being aware that the claimant had worked with the Rivers State Government when same fact is clearly stated in the claimant’s C.V. in the defendant’s custody just as the record of his contract appointment was in the University’s custody. Therefore, I find from these facts that the claimant was a contract staff and that he had worked with the Rivers State Government and that prior to his application for and elevation to the post of a Professor by the defendant; were to the knowledge of the defendant and so, the University cannot feign ignorant of these facts now in this Court. Consequently, I hold that the defendant has not discharged the burden of proving to the satisfaction of the Court that the elevation of the claimant to the Rank of a Professor was made in error based on the University stated reasons.

The Law requires that whoever desires any court to give him judgment on any legal right or liability dependent on the existence of facts which he asserts, shall prove that those facts exist; see Section 131 of the Evidence Act, 2011.

37.On whether the elevation of the claimant to the Rank of a Professor was valid

In satisfying this requirement of the law, the claimant pleaded in paragraphs 6 to 17 of his Statement of Facts that, while in the service of the defendant, he applied for the elevation of his academic status to the rank of a professor and that he was elevated to the rank, which was sadly later withdrawn from him five years after the elevation.

38. The claimant maintained that contrary to the defendant’s contention, his elevation to the Rank of a Professor was done with due process. At page 25 of the record, the claimant exhibited the Letter of the External Assessors for his interview as professorial candidate. The letter is dated February 10, 2014 and it is Exhibit C.1 before the Court. Again, in the 2nd paragraphs of Exhibit C5 at pages 101 of the record, titled the Memorandum to Council Promotion of Professors and Readers, the defendant states thus:

The Appointment and Promotion Committee (Academic), at its 133rd meeting held on Tuesday, 23rd September, 2014 considered the report and having been satisfied that the promotion guidelines were followed and the positions provided for in the budgets recommended it to the council for approval.

     See also Exhibit C.8 at page 26 of the record, titled Assessment Interview for Professor.

     Furthermore, in Exhibit C9 before the Court, titled: ‘Review of Appointment to the Rank of Professor’ dated December 18, 2014 at page 27 of the record; the Registrar of the defendant wrote the claimant this way:

The Appointments and Promotion Committee (Academics) at the 134th Meeting held on December 15, 2014 considered your External Assessment and interview Report and made recommendations to Council.

Following Council’s approval of the recommendations of the Appointments and Promotion Committee (Academics) at the 146th Meeting held on Wednesday, 17th December, 2014 I am pleased to inform you that you are hereby elevated to the Rank of Professor of Pharmaceutics—.

These communications from the defendant to the claimant show that the defendant followed properly, the promotion guidelines before making recommendation to the University Governing Council for the approval of and before the claimant was elevated to the Rank of a Professor by the defendant and I so hold.

However, all the above evidence notwithstanding, on March 2, 2017; the defendant issued Exhibit C.11 (a) at page 30 of the Record to the claimant, withdrawing the rank of Professor from him. In paragraphs 1st and 2nd of Exhibit C.11 (a), it is stated that the promotion of the claimant to the rank of professor was done in error and that the Governing Council at its 159th meeting held, considered and approved the withdrawal of the claimant’s promotion.

39.The center issue for determination therefore is whether the defendant has power to withdraw the elevation of the claimant to the rank of Professor.

By provision of section 7 (2)(d) of the University of Port Harcourt Act, 2004 it is the function of the Senate of the defendant to make recommendations to the Council with respect to the award to any person of an honorary fellowship or honorary degree or the title of professor emeritus.

Section 7 (6) of the University of Port Harcourt Act provides that:

Subject to a right of appeal to the Council from a decision of the Senate under this subsection, the senate may deprive any person of any degree, diploma or other award of the university which has been conferred upon him if after due enquiry he is shown to have been guilty of dishonourable or scandalous conducts in gaining admission into university or obtaining that award.

40. From the provision of Section 7 (6) of the University of Port Harcourt Act, I am of the firm view that the “other award” as used in this subsection is inclusive of the award of a Professor and same can only be deprived of any person where the person is shown to have been guilty of dishonourable or scandalous conducts in — obtaining the award. There is no evidence before the court that the claimant was guilty of any dishonourable or scandalous conducts in — obtaining the award of or his elevation to the Rank of Professor of Pharmaceutics so as to warrant the withdrawal of the award or elevation from him.

As I have found above, the defendant followed its promotion guidelines diligently in awarding the rank of professor to the claimant in year 2014, see Exhibit C5. And from the evidence before the court, the defendant has not shown the Court anything to the contrary. In my considered view, the only ground under which the award or elevation can be withdrawn after being granted as provided in Section 7 (6) of the University of Port Harcourt Act is if the claimant was or has been found guilty of dishonourable or scandalous conducts in obtaining that award or elevation and I so hold.

41. I further hold that it is not in the defendant’s Act that a Professor can be stripped of his rank as a Professor on mere ground of the rank being conferred in error as it is being canvassed in this case. This is more so because, the defendant had always known that the claimant was its contract staff before he applied for the rank of a Professor to the defendant. In addition, since Exhibit D.1 “the Curriculum vitae” of the Claimant at 114 had always been in the custody of the defendant; the University cannot also denial being aware that the claimant had worked with the Rivers State Government prior to his application as same is clearly stated in the claimant’s C.V. (the defendant’s Exhibit D.1). Additionally, I hold that withdrawing the claimant’s rank of Professor of Pharmaceutics on a ground outside the confine of Section 7 (6) of the University of Port Harcourt Act is illegal. Consequently, I hold that the withdrawal of the award of claimant’s rank of Professor of Pharmaceutics is illegal and invalid and it is accordingly set aside.

 

  1. On the whole, I declare and hold as follows:
  2. I declare that the withdrawal of the claimant’s rank of professor Pharmaceutics, by the defendant is not only a demotion in his academic status, rank or office; it is a retrospective disciplinary action against the Claimant for a flimsy wrong that has always been in the knowledge of the defendant and which it had condoned.
  3. I declare that the University of Port Harcourt, in the circumstance of this case, has no power to withdraw from the Claimant or deprive him of his academic status of professor.

iii.      I decline to assume jurisdiction on the claimant’s alleged publications in the University’s Post Graduate Prospectus of 2016/2017 and his case of defamation of character against the defendant as couched in this case.

  1. I hold that the 2nd and 3rd Defendants are not juristic persons before the Court, hence their name are struck out as defendants including all claims against them.
  2. I hold that the defendant acted outside the provision of its Act in withdrawing the rank of a professor of the claimant and the withdrawal is accordingly set aside.
  3. I order that the claimant’s Rank of Professor of Pharmaceutics be restored to him and all his entitlements on that rank be restored to him with effect from when he was stripped of the rank within sixty days from today.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

 

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