PROFESSOR OLUSOLA O. OMOKORE -VS- THE HON. MINISTER OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON TUESDAY 21^ST DAY OF JANUARY 2020

BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/KD/08/2017

BETWEEN:

PROF. OLUSOLA O. OMOKORE CLAIMANT

AND

THE HON. MINISTER OF EDUCATION
FEDERAL UNIVERSITY DUTSINMA (FUDMA)
COUNCIL, FUDMA
THE VICE CHANCELLOR, FUDMA
PROF. HARUNA ABDU KAITA
THE REGISTRAR, FUDMA
THE LIBRARIAN, FUDMA
THE BURSAR, FUDMADEFENDANTS

J U D G E M E N T

The Claimant commenced this action vide Complaint and Statement of Facts filed in this Court on 21/02/2017, and claimed against the Defendants, the reliefs set out as follows:

A DECLARATION that the fact finding Committee on allegations against some Federal Tertiary Institutions sent to Federal University Dutsinma, Katsina State failed the fundamental right test of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) not having been constituted in a manner that would ensure its independence, and impartiality.
A Declaration that the Claimant was not granted the right to fair hearing when the 4^th, 5^th& 6^th Respondents implemented the recommendation of the fact finding committee without first referring the said recommendations to the 2^nd Respondents full and duly convened Council for adoption and subsequent referral to the 2^nd Respondent’s Senior Staff Disciplinary Committee for a fair hearing.
A declaration that the appointment of Prof Haruna Abdu Kaita as Vice-Chancellor of Federal University Dutsinma is contrary to law and is therefore void, same having been made in order to use him as a tool to victimize and terminate complainant’s appointment with 2^nd Defendant.
A Declaration that the appointment and composition of the Principal Officers of Federal University Dutsinma to wit: the Vice Chancellor, the Registrar, the Librarian and the Bursar are in violation of the Federal character principles and same were made and used to victimize Claimant by terminating her appointment with 2^nd Defendant.
An order setting aside the recommendations of the fact finding committee on allegations against some Federal Tertiary Institutions relating to Federal University, Dutsinma forwarded to the Vice-Chancellor Federal University, Dutsinma by MallamAdamuAdamu, Hon. Minister of Education vide letter reference FME/PSE/TE/1038/C.1/1/8 dated 9^th September, 2016, as it relates to Complainant, same having been made in violation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
An Order setting aside the termination of complainant’s appointment Reference No. FUDMA/REG/PS447/1 dated 28^th October, 2016 for being ultra vires, null and void.
An Order re-instating Complainant back to her job as Professor of English in the 2^nd Defendant on CONUASS 7 Step 7 with effect from 28^th October, 2016 with arrears of salary, all increments, allowances and privileges attached to her rank as Professor.
An Order compelling the 2^nd, 4^th, 5^th and 6^th Defendants to pay to Claimant her sitting allowance of Sixty Three Thousand Five Hundred Naira being her sitting allowance as council member of 2^nd and 3^rd Defendant for meeting held and attended in October, 2015.
AN ORDER setting aside the appointment of Prof. Haruna Kaita as Vice Chancellor of Federal University Dutsinma being contrary to the statutorily prescribed procedure and same having been made and used to victimize and terminate complainant’s appointment.
AN ORDER setting aside the appointment and composition of the Principal Officers of Federal University Dutsinma to wit: the Vice Chancellor, the Registrar, the Librarian and the Bursar, same being in violation of the Federal character principles and same having been used to victimize claimant by terminating her appointment with 2^nd Defendant.
The cost of this action.
The Defendants, although were represented by learned counsel at various times in the course of the proceedings, as borne by the records; did not however file any defence to the action. The processes filed on behalf of the Defendants wereNotices of Preliminary Objection, filed on24/04/2017 and 25/04/2017, but which were dismissed by the Court on 05/02/2018.

Thereafter, the Defendants, rather than filing a defence to the suit, proposed a possibility of an out of Court settlement. However, the case proceeded to trial after the learned counsel for the Claimant reported that settlement had failed.

At the plenary trial, the Claimant testified in person by adopting her written depositions. She further successfully tenderedseven(7) documents in evidence; whilst the Defendants’ learned counsel elected not to cross-examine her.

The Defendants’ learned counsel, from that point onwards, prayed for several adjournments to enable the Defendants file their Statement of Defence and to open their defence. However, in spite of the several adjournments granted at their instance, they failed to file their defence. The learned Defendants’ counsel however, did not withdraw his appearance for the Defendants and participated until the case was adjourned for adoption of final written addresses.

Upon conclusion of plenary trial, only the Claimant, through her learned counsel, filed a written final address in the suit.

In the said address, settled by A. A. Akume, Esq., of counsel, the Claimant raised two issues as having arisen for determination in this suit namely:

Whether or not the Claimant is entitled to judgement based on the strength of her case alone.
Whether or not the Defendants by their failure to file any defence have not by so doing conceded to the Claimant’s claim.
Flowing from my understanding of the Claimant’s claim and the relevant evidence adduced at the trial, including the documents tendered as exhibits, the focal issue that call for resolution in this suit without prejudice to the issues raised by the Claimant can be succinctly reframed as follows:

“Whether or not the Claimant established her claim of unlawful termination by the Defendants; and if so, whether she is entitled to her claims in this suit”.

In determining this sole issue, it is pertinent to restate, as a preliminary point, the clear position of the law, as in circumstances of the present case, where a Defendant refuses to adduce any evidence in his defence to be placed on the imaginary scale of justice, the trial Court is entitled to proceed to find for the Claimant in the event that the evidence adduced by him has satisfactorily established his claim as endorsed.

In the circumstances therefore, the task the Court is to undertake now is to examine the evidence on record as adduced by the Claimant; and the law applicable thereto, in order to determine whether or not such evidence has satisfied the requirement of proof imposed by the provisions of Sections 131 and 132 of the Evidence Act (as amended), to substantiate her claim as endorsed.

To establish that there was a statutory contract of employment, the Claimant tendered in evidence her letter of offer of appointment as Associate Professor in English Department dated 15/08/2013 –Exhibit C1and her letter of appointment or promotion as a Professor of English dated 29/10/2013 – Exhibit C2. The Claimant further testified that her appointment was regularized through a letter dated 01/04/2014 tendered in evidence as Exhibit C3. On the basis of the pleadings and evidence led at the trial, it is therefore undisputed that the Claimant’s employment is statutory employment.
The Claimant testified further that she was one of the members of staff that was investigated by a fact finding committee that was inaugurated by the 1^stDefendant on 10^thDecember, 2015 to investigate some petitions against the principal officers and some members of staff of the 2^nd Defendant. The Claimant testified that based on the concerns of some of the members of staff on the composition of the panel of the fact finding committee, they instructed their solicitors to petition the Executive Secretary of National Human Right Commission but that the 1^st Defendant ignored the petition that was written by their solicitors and further directed that the panel proceed to the 2^nd Defendant to conduct the fact finding exercise. The petition written by the Claimant’s solicitors and the recommendations of the fact finding committee were tendered in evidence as Exhibit C6 and Exhibit C4 respectively.
The Claimant further testified that being a senior staff of the 2^ndDefendant, only the Council of the 2^ndDefendant can discipline her in line with the disciplinary procedure prescribed in the 2^nd Defendant’s enabling statute (Act).

The Claimant also testified that the report of the Senior Staff Disciplinary Committee was not approved by the Council as the Council was not convened as prescribed by the enabling statute. The Claimant also testified that the Pro-Chancellor, the Chairman of Council along with the 4^th, 5^th, 6^th, 7^th and 8^th Defendants implemented the Committee’s report and terminated her appointment without according her fair hearing or without regard for the prescribed due process. The letter of termination of appointment dated 28/10/2016 was tendered in evidence as Exhibit C5.

Based on the above evidence, the Claimant’s case was closed as the learned Defendants’ counsel elected not to cross examine her.

Now, from the totality of the evidence adduced by the Claimant, could it be said that she has satisfactorily established that her appointment was unlawfully terminated by the Defendants as alleged to entitle her to the reliefs she claimed?

It has been firmly established that when an employee complains that his or her employment has been wrongfully or unlawfully terminated, that employee has the onus:-

(a) To place before the Court the terms and conditions of the contract of employment and

(b) To prove in what manner the said terms were breached by the employer.

The test of whether the termination of an employee is proper or unlawful is, whether the procedure adopted in effecting the termination conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rule of natural justice so as to render the formal compliance a travesty.

See Iwuchukwu Vs Nwizu [1994] 7 NWLR (Pt 357) 379 at 412; Nigerian Gas Co Ltd Vs Dudusola [2005] 18 NWLR (957) 292; WAEC & Ors Vs Ikang [2001] LPELR 5098

In the present case, the Claimant’s case is that the Defendants violated the disciplinary procedure of the 2^ndDefendant enabling Law 2015 and the Conditions of Service of Senior Staff of the 2^ndDefendant. This was expressly stated in as deposed in paragraphs 35, 37, 38, 40 and 44 of the Witness Statement on Oath. The effect of these assertions is that her employment has statutory flavor and cannot be determined otherwise than as provided for by the terms and conditions of her appointment. Exhibits C1, C2 and C3 contains the terms and conditions of the Claimant’s appointment with the 2^nd Defendant.
I have taken liberty to reproduce the relevant portions of the said exhibits.

Exhibit C1

Note that the temporary appointment is for a period of one year, effective from the date of assumption of duty, and is subject to the provisions of the University law and statutes made thereunder, and to the regulations of the Conditions of Service for senior staff made by the Governing Council from time to time, and specifically provided for in this letter of appointment. The temporary appointment is made to enable you to start work in the University as soon as possible pending when arrangements for regularization of appointment will be completed. The period of the temporary appointment will form part of your service period when your appointment will be regularized.

Exhibit C3 – Letter of regularization of appointment from temporary to provisional dated 01/04/2014

Sequel to the regularization interview conducted for your appointment on 23^rd September, 2013; I am pleased to convey the Vice Chancellor’s approval for your provisional appointment as Professor with effect from the date you assumed duty.

The Provisional appointment is subject to confirmation to retirement on satisfactory performance after a minimum period of two (2) years.
The appointment can be terminated by either party giving three months’ salary in lieu of notice.
All other conditions of your appointment remain the same.
The Claimant’s grouse is that she was never given an opportunity to testify at the panel and that she was not given the opportunity to hear the testimonies of the witnesses invited by the Committee. The Claimant further contended that the Council did not follow the procedure for discipline (termination) of its members of staff as stipulated by the University Act as the Council was not convened to approve the recommendation of the fact finding committee before her appointment was terminated. She further alleged that the 1^stDefendant appointed the Pro Chancellor and Chairman of the Governing Council of the 2^ndDefendant without regard to the Federal Character Law and also alleged that the appointment of the 4^th, 5^th, 6^th, 7^th and 8^th Defendants is illegal and irregular and therefore void.
Now, it is pertinent at this juncture to restate the general principle of law on pleadings. It is trite law that facts averred in pleadings must be substantiated and proved by evidence. Averments in pleadings are facts as perceived by the party relying on them. There must be oral and or documentary evidence to show that facts pleaded are true. Consequently, pleadings without evidence to support it are worthless. Various judicial authorities avail on this principle of law.

See: UBA Plc Vs Sani Abacha Foundation for Peace and Unity [2004] 3 NWLR (Pt 861) 510; FBN Ltd Vs Moba Farms Ltd [2005] 8 NWLR (Pt 928) 92; Berende Vs Usman [2005] 14 NWLR (Pt 944) 1; Cameroon Airlines Vs Otutuizu [2011] LPELR 827.

It therefore goes without saying that any pleaded fact that was not proved or supported by evidence is deemed abandoned.

In the instant case, the Claimant challenged the appointment of the principal officers of the 2^nd Defendant namely: Prof Haruna Abdu Kaita as Vice Chancellor, the Registrar, the Librarian and the Bursar and she also claimed for her sitting allowance as Council member of the 2^nd Defendant but there was no scintilla of evidence adduced in support of these claims. The averments by the Claimant in the absence without evidence are deemed abandoned. And I so hold.

Now, by the provision ofSection 122 (2) of the Evidence Act 2011, the Courts are enjoined to take judicial notice ofall laws or enactments any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria.

As stated in Clause 3 of Exhibit C3, the Claimant has established that her contract of employment is governed by the University law that is, the Federal University of Dutsinma (Establishment) Act 2015 – the University Act.

The learned counsel for the Claimant submitted in his written address that the Claimant cannot be removed from her employment unless the terms and conditions in Section 17 of the University Act are complied with.

It is significant to make reference to the material provision of the Section 17 of the University Act which I have taken liberty to reproduce as follows:

Section 17

“(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University other than the Vice-Chancellor, should be removed from office or on grounds of misconduct or inability to perform the functions of his office, the Council shall:

(a) give notice of those reasons to the person in question;

(b) Afford such person an opportunity of making representation in person on the matter to the Council; and

(c) take a decision to terminate or not to terminate the appointment

(2) If the affected staff or any three members of the Council so request within the period of one month from the date of the receipt of the notice of the Council’s decision, the Council shall make arrangements for –

i) a joint committee of the Council and the Senate to review the matter and to report on it to the Council;
ii)for the person in question to be afforded the opportunity of appearing before and being heard by an investigating committee with respect to the matter;

and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed, the Council may so remove him by an instrument in writing signed on the directions of the Council. (Underlining for emphasis)

The effect of the above provision of the University Act is that, the Claimant cannot be validly removed from the employment unless the provisions provided in the statute for removing her as an academic staff is followed strictly. See Olaniyan V University of Lagos [1985] 2 NWLR Pt 9 Pg 599; Okwusidi V Ladoke Akintola University [2012] All FWLR Pt. 632 Pg 1774 at 1786.

The Claimant’s testimony is that her employment was terminated on 28^thOctober, 2016 through Exhibit C5.

The relevant portion of the said exhibit is reproduced as follows:

“This is to inform you that the Governing Council of the Federal University, Dutsin-Ma is in receipt of the Federal Government White Paper on the recommendations of the fact finding committee on the complaints/petitions against some Federal Tertiary Institutions. It is forwarded vide the Federal Ministry of Education’s letter No. FME/PSE/TE/1038/C.1/1/8 dated 9^th September, 2016.

The White Paper indicated that prior to your current appointment with Federal University, Dutsin-Ma, your appointment with Ahmadu Bello University, Zaria was terminated on grounds of misconduct.
In view of the foregoing,the Federal Governmenthas directed that your current appointment with Federal University, Dutsin-Ma was wrong and should be terminated with immediate effect.
Accordingly, I write to convey to youthe directives of the Federal Government White Paperthat your appointment is terminated with effect from 28^th October, 2016” (Underlining for emphasis).
The content of Exhibit C5 is very clear as to the circumstances of the termination of the Claimant’s employment. Her employment was terminated on the basis of the Federal Government White Paper on the recommendations of the fact finding committee. The Claimant had contended that she was not given any hearing by Council and that the Governing Council which is empowered to approve the termination of her employment was not constituted or in place at the time the letter terminating her employment was issued to her.

I agree with the learned Claimant’s counsel that the procedure as stipulated by the University Act was not followed before her employment was terminated by the Defendants. The Claimant’s employment cannot be terminated outside the laid down procedures contained in the said law.

In Oloruntoba-Oju Vs Abdul-Raheem (supra) at 46 to 47, the Supreme Court held-

“When an office or employment has a statutory flavor in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting an individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter 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. There is a presumption that when the legislature confers a power on an authority to make a determination, it intends that the power shall be exercised judicially in accordance with the rules of natural justice.”

The same principles are fully applicable to the Claimant’s appointment. I am quite convinced that the termination of the Claimant’s employment did not follow the statutory procedure. 18. The unchallenged evidence before the Court is that the Council did not sit to approve the recommendation of termination of the Claimant’s appointment by the fact finding committee set up by the Federal Government. Furthermore, recommendation by a fact finding committee of the Federal Government is not one of the grounds for taking disciplinary measures against the staff of the 2^nd Defendant. In other words, the Defendants lack the vires/power to terminate the Claimant‘s employment without the approval of the Council.

I am satisfied that the Claimant has proved her case. It is my further finding that the termination of the Claimant’s employment was improper, unlawful, null and void. And I so hold.

It is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing legally standing in the way of the employee from having his or her job back with its attendant rights, benefits and privileges.

See Visitor, Imo State University & Ors V Prof Okonkwo & Ors 2014 LPELR; Kwara Polytechnic Ilorin V Oyebanji [2008] All FWLR (Pt 447) 141 at 199; Olaniyan V University of Lagos (supra).

In such a situation, the Court has the power to set aside the unlawful termination and order the reinstatement of the employee.

In the circumstance of this case, having found that the termination of the Claimant’s employment was unlawful, the Claimant is entitled to a consequential relief of reinstatement and payment of her outstanding salary from the time of the unlawful termination of her employment. See Omidiora Vs Federal Civil Service Commission [2008] All FWLR (Pt 415) 1807.

In the final analysis, the judgment of the Court is that thetermination of the Claimant’s employment was unlawful and the Claimant’s case succeeds in part.

For avoidance of doubts and abundance of clarity, judgment is hereby entered in favour of the Claimant upon the following terms:

It is hereby declared that the termination of the Claimant’s employment is unlawful, illegal, null and void as it was done in violation of the statute and regulation guiding the Claimant’s contract of employment with the 2^nd Defendant.

Consequently, the recommendation of the fact finding committee on allegations against some Federal Tertiary Institutions and the letter of termination of the Claimant’s appointment dated 28^th October, 2016 are hereby set aside.

The Defendants are hereby ordered to re-instate the Claimant forthwith to her employment in the 2^nd Defendant. The Defendants are further ordered to place the Claimant in the appropriate position and level she ought to be at the moment in the employment of the 2^nd Defendant had her employment not been unlawfully terminated.
The Defendants shall pay the Claimant all her outstanding wages, salaries, allowances and other emoluments accruing to her from 28^th October, 2016 being the date of the unlawful termination of her employment, up to the date of this judgment within two (2) months from this judgement.
I further award cost of N250,000.00 against the Defendants.

SINMISOLA O. ADENIYI

(Presiding Judge)

21/01/2020

Legal representation:

A.A Akume Esq. with S. A. Apeniga for Claimant