IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA
DATE: Thursday, 12th May 2022 SUIT NO: NICN/OW/38/2017
BETWEEN:
ONWUKA OKEREKE CLAIMANT
AND
ABIA STATE UNIVERSITY.
THE VICE CHANCELLOR, DEFENDANTS
ABIA STATE UNIVERSITY.
REPRESENTATION:
· O.O. AMUZIE WITH I. M NWACHUKWU FOR THE CLAIMANT.
· CHIEF THEO NKIRE WITH JORDAN OKORO FOR THE DEFENDANTS.
JUDGMENT:
1. The claimant was accordingly employed as a lecturer in the department of mass communication of the defendants’ university on 4/8/2006. He was however purportedly suspended from work and his salary stopped and soon after, terminated on 10/3/2017 supposedly based on the recommendations of a panel of investigation set up to investigate several alleged acts of misconducts levelled against him. He filed this writ of complaint since 9/6/2017 claiming the following reliefs:
a. A declaration that the acts of the defendants against the claimant with regards to the 2nd investigation panel, its proceedings and alleged report (if any) constitutes a serious violation of the claimant’s fundamental right as guaranteed under section 36 CFRN 1999.
b. A declaration that the continuous acts of the defendants in withholding his entitlements and emoluments from May 2016 to March 2017 while he was purportedly on suspension to date is unlawful, wrongful and contrary to section 31 (7) of the Abia State University Law Cap. 38 of Abia State 2005.
c. A declaration that the claimant’s appointment with the 1st defendant can only be lawfully terminated in accordance with section 31 (3) of the Abia State University Law Cap. 38 2005.
d. A declaration that the purported termination of the claimant’s appointment by the 2nd defendant without due process of law, is unlawful, illegal, null and void.
e. A declaration that the claimant can only be suspended from his appointment with the 1st defendant in line with the provisions of the Abia State University Law Cap. 38, Laws of Abia State of Nigeria 2005.
f. An order directing the defendants to produce before the honorable court, the purported report of the alleged investigation panel headed by Prof. J.O. Onwuka (if any), for the purpose of quashing same.
g. An order quashing and or setting aside the purported report of the alleged investigation panel headed by Prof. J.O. Onwuka (if any), for denial of fair hearing/trial.
h. An order nullifying and/or setting aside the termination of the appointment/employment of the claimant by the 2nd defendant and restoring/reinstating the claimant back to his employment.
i. An order directing the defendants to forthwith pay the claimant the arrears of his entitlements and emoluments from May 2016 to date.
j. N2,000,000.00 general damages for unlawful acts against the claimant.
k. Perpetual injunction restraining the defendants, their agents, etc., from further breach of the claimant’s fundamental rights especially the claimant’s right to fair hearing.
2. In response, the defendants, through their counsel, jointly entered appearance and initially only filed a preliminary objection against the claimant’s suit on 6/10/2017 albeit out of time but duly regularized by the leave of this court. The preliminary objection was however dismissed on the 21/3/2018 by my learned brother Arowosegbe, J in his ruling delivered that day. Having failed to file a statement of defence within the allocable time, the claimant’s counsel initially filed a motion to set down the suit for hearing on 21/11/2017 prompting the defendants to file and serve their joint defence subsequently on 19/1/2018. They soon after however, amended their joint statement of defence on 28/5/2019.
3. Within, the defendants allege inter alia that this claimant was provided with a contract of temporary employment for only 1 year by letter to that effect, in August 2006 which was never formally confirmed by the varsity’s council and so same ceased to exist upon its effluxion. They also allege that during his employment, the claimant was accused by several students, to have committed numerous acts of sexual harassment of his female students, bribery, and other acts of misconducts which the defendants’ various investigative panels had to investigate until he was finally recommended that he be relieved of his employment with effect from 16/5/2016.
4. The claimant’s counsel filed a response to the amended joint statement of defence on 18/11/2019 denying all the averments made by the defendants and their witness and filed a further deposition made by him personally. The claimant’s counsel also with the leave of this court, caused a subpoena ad testificandum of 11/3/2020 to issue on and to reopen his case to call in the testimony of an additional witness, one Prof. Uzoma Chukwuemeka Okeugo, to testify on behalf of the claimant by relying on his sworn deposition of the same 11/3/2020.
5. The claimant eventually opened his case on 21/1/2018 whereupon he adopted his sworn deposition of 9/6/2017 and further deposition of 18/11/2019 as CW1. He was however cross examined by the defendants’ counsel on 19/3/2019. As stated earlier, his 2nd witness (CW2) testified subsequently on 29/1/2022 after the claimant’s case had already been closed since 18/11/2019. In any event, CW1 and CW2 tendered a total of 9 exhibits thus:
a. Exhibit C1 – offer of temporary employment dated 4/8/2006.
b. Exhibit C2 – Promotion Letter dated 17/1/2013.
c. Exhibit C3 – letter written by the claimant to the 2nd defendant dated 17/8/2015 titled “Obvious Attempt At Witch-hunt”.
d. Exhibit C4 – letter written by the claimant to the 2nd defendant dated 27/5/2016 titled “Suspension From Duties and Denial Of Access To My Office”.
e. Exhibit C5 – Letter of termination of appointment dated 24/5/2016.
f. Exhibit C6 – letter dated 13/3/2017 titled “Re: Termination Of Appointment” written by the claimant to the 2nd defendant.
g. Exhibit C7 – letter of pre-action notice written by the claimant’s solicitor to the defendants dated 19/4/2017.
h. Exhibit C8 – acceptance of employment letter by the claimant dated 1/9/2006.
i. Exhibit C9 – subpoena ad testificandum dated 10/3/2020.
6. Having concluded their testimonies, the claimant closed his case.
7. Meanwhile, the defendants opened their defence by calling in the testimony of 1 witness, one Joy Nwankwo. She testified on 18/11/2019 and tendered a total of 6 documents admitted as follows:
i. Exhibit D1 – claimant’s offer of temporary employment dated 4/8/2006 (same as exhibit C1).
ii. Exhibit D2 – Petition against the claimant dated 29/4/2015.
iii. Exhibit D3 – Minutes of the meeting of the panel of investigation into reports of misconduct against the claimant held on 10/6/2015 but certified on 8/5/2019 accompanied by exhibits.
iv. Exhibit D4 – submission of report and the report of the panel of investigation dated 16/11/2015.
v. Exhibit D5 – termination of appointment dated 24/5/2016 (same as exhibit C5).
vi. Exhibit D6 – Abia State University Regulations Governing Conditions of Service of Senior Staff with effect from 1/10/2002.
8. DW1 was however cross examined on 29/1/2020 and finally, on 25/1/2022 whereupon the defendants closed their case on that day.
9. The parties were ordered to file their final addresses on or before 3/3/2022 on which date the parties’ counsel adopted their respective final addresses thus causing this court to adjourn to today 12/5/2022 for judgment.
CLAIMANT’S CASE:
10. As contained in the witnesses’ sworn depositions, these are the facts and circumstances that establish this claimant’s case.
11. He is accordingly a lecturer in the department of mass communication, faculty of humanities and social sciences of the Abia State University, Uturu since 4/8/2006 by letter of employment to that effect. He was allegedly promoted from the rank of Assistant Lecturer to Lecturer II by letter dated 17/1/2013. The claimant also alleges that the genesis of his problem was because he had made a complaint against one Uwaoma Uche (who held fake certificates and was later dismissed upon this discovery), to one Prof. E. Uche Ikonne (who later became the VC of the 1st defendant university). The claimant alludes that unknown to him, the two of them were allies.
12. As a result of his whistleblowing, the 2nd defendant caused a second panel of investigation to be set up maliciously for the purpose of reinvestigating old allegations made against the claimant for which he had already been purportedly cleared of by a first panel of investigation beforehand.
13. CW1 believes that the allegations were trumped-up against him by those allies (with the connivance of his estranged wife,) in order to witch-hunt him obviously because he had whistle blown and testified against the dismissed Uwaoma Uche. This eventually and unilaterally also led to his removal as the departmental reconciliation officer allegedly without any proof of his wrongdoing.
14. He was purportedly also not promoted in 2015 from lecturer II to lecturer I despite the approval of the Appointments and Promotion Committee of the governing council of the varsity. He wrote a letter of complaint dated 17/8/2015 protesting these ill-treatments to the 2nd defendant Vice Chancellor which the claimant tendered as exhibit C3.
15. The 2nd defendant as well as the Deputy Vice Chancellor, allegedly teleguided the proceedings and the members of the investigation panel so as to breach his fundamental right to a fair hearing as he was neither informed or given any copy of the allegations against him nor were the alleged witnesses of the allegations of sexual harassment and extortion of money, brought forward to sustain the allegations and for him to cross examine them at the panel sittings.
16. He was not given a copy of the report up to the time of filing this suit. The said panel was accordingly not set up in virtue of provisions of the Abia State University Law 2005.
17. CW1 stated that on or about 10/5/2016, the 2nd defendant in the presence of the DVC (academics), invited him to his office whereupon he orally notified him that he has been placed on ‘technical suspension’ pending the presentation of the report of the said panel of investigation. Despite protesting this and stating adamantly that he was willing to continue undertaking his duties pending a formal communication of his suspension, the 2nd defendant allegedly instructed the security men never to allow the claimant step into the school premises from that very day to date. He accordingly has not been served with any suspension letter to date.
18. His entitlements have been accordingly withheld since May 2016 to March 2017 when he filed this suit despite his letter of protest to the 2nd defendant. He again tendered a letter dated 27/5/2016 as exhibit C4.
19. He surprisingly received a letter on 10/3/2017 allegedly being a letter of termination of his employment, from the office of the deputy registrar which is dated 24/5/2017 (exhibit C5). He again protested this by writing another letter dated 13/3/2017 which the defendants failed to date to react to.
20. He said that the Prof. J.O Onwuka led investigation panel never indicted him of any wrongdoing despite him not being given a copy of the report to date. The 2nd defendant accordingly acted maliciously and in bad faith in having his employment which is statutory in nature, terminated without recourse to the provisions of particularly section 31 (3) of the Abia State University Law 2005. He mentioned that only the university governing council can terminate his employment and having failed to be given any notice of the allegations made against him and an opportunity to defend himself appropriately, the termination must be quashed by this court.
21. CW1 was duly cross-examined, and the full questions and answers provided are as contained in the record of proceedings. Same may be relied upon in the course of making this judgment.
22. CW2 testified after the claimant’s counsel had applied to reopen the claimant’s case. He was subpoenaed to appear in court whereupon he adopted his sworn written deposition of 11/3/2020. Professor Uzoma Chukwuemeka Okeugo testified on oath that CW1 was employed as a lecturer and confirmed as such since 2007. In 2012, the claimant was recommended by the Appointments and Promotions Committee for promotion whereupon he was duly confirmed as a lecturer II with notional effect from 1/10/2012.
23. He said the claimant’s promotion from lecturer II to lecturer I in 2014 was however frustrated by the 2nd defendant despite the approval of the Appointments and Promotions Committee of the varsity.
24. CW2 stated that the minutes of the interview sessions of the panel set up to investigate the claimant were falsified by the defendants’ witness, Joy Nwankwo, as statements credited to him were never made by him. He denied that the claimant submitted two separate results or duplicates of any courses handled by him as alleged by the defendants. He explained elaborately how results are compiled and stored up in the records of examinations and that as a HOD at the material time of this suit, the claimant was not in want of doing the appropriate thing as far as his students’ results were concerned. He said he knows that in 2016 the claimant’s employment was terminated.
25. CW2 was duly cross examined and again the questions and the answers produced are as contained in this court’s record of proceedings. Same may also be reproduced and referred to when necessary.
DEFENDANTS’ CASE:
26. At the close of the claimant’s case, the defendants jointly called in the testimony of a sole witness, one Joy Nwankwo, as DW1. She adopted her amended written deposition of 28/5/2019. Within, she testified that the claimant was not a lecturer in the mass communication department of the varsity as his employment had expired after 1 year of his being offered a temporary employment by letter dated 4/8/2006. She said the employment was never confirmed by the defendants as required by the regulations. She made a legal argument concerning the effect of the claimant’s temporary employment status in which she relied on section 9(7) of the Labour Act 1990. Procedurally, those portions of her deposition shall be eschewed from these proceedings as the offend the provisions of the evidence act in which a deponent is required to only depose to facts and precluded from making conjectures, legal conclusions and/or arguments see section 115 (2) of the Evidence Act 2011 and the case of NIGERIA L.N.G. Ltd. V. AFRICAN DEVELOPMENT INSURANCE COMPANY Ltd. (1995) 8 NWLR (PART 416) 677 at 698.
27. Anyway, DW1’s contention is that the claimant was in a master/servant relationship with the defendants and that his promotion from lecturer II to lecturer I was done erroneously by the defendants. She however admits that the defendants terminated the claimant’s employment even though it was accordingly done as a mere formality.
28. Not having acquired a statutorily flavoured employment therefore, the claimant should be regarded as a casual employee and so when several allegations of sexual harassment of female students, bribery, and other acts of misconduct were levelled against the claimant, he (the claimant), appeared constantly before several panels of inquiries/investigations the last one being where he was recommended for termination.
29. She said at the time the last panel of investigation was set up and contrary to the claimant’s statement in this regard, Prof. Uche Ikonne was not yet the VC of the 1st defendant varsity.
30. DW2 further stated that it was normal to receive and to treat complaints anonymously from students who allege victimization from lecturers and that the defendants had received several of such against the claimant which therefore enabled them to constitute a panel of inquiry with the necessary terms of reference to investigate the activities of the claimant and to report back by making recommendations to them.
31. Accordingly, sometime in April 2015, the defendants received a signed petition from students of the mass communication department – with their names withheld – and titled “PLEA TO SAVE MASS COMMUNICATION STUDENTS FROM THE HANDS OF A SADIST”. Exhibit D2 was tendered by DW1. She said the letter bothered on complaints of professional misconduct, mass failure of students of the department, poor attitude to work, sexual harassment, financial exploitation, victimization of students, refusal to graduate students, submission of conflicting examination results etc. DW1 was accordingly a member of the panel that was set up to investigate these allegations made against the claimant.
32. She said that during investigations, it was not unusual for students’ petitioners or complainants to hide their identities for fear of being victimized, threatened, intimidated, or harassed by other lecturers and persons in authority and so the students’ identities were not revealed to the claimant.
33. She maintained that the proceedings were held in public and on 7/8/2015, the claimant was invited to defend himself. Some witnesses were allegedly called up and interviewed including some of the claimant’s students as well as his departmental head. She said documents were pleaded and that the claimant even admitted committing some of the allegations and apologized for the financial exploitation of his students against the varsity regulations. She therefore tendered the minutes of the proceedings of the panel as exhibit D3.
34. Based on the recommendations of the panel therefore, the claimant’s employment was thus terminated by letter dated 16/5/2016 which clearly stated the grounds for terminating his employment. DW1 therefore denied any lack of fair hearing as alleged by the claimant stating that he was afforded every opportunity to defend himself and to examine the allegations made against him in accordance with his constitutional rights. She thus believes the claimant is not entitled to the claims and reliefs sought and therefore wants this court to dismiss this suit.
35. DW1 was duly cross examined and again the questions and answers produced are as contained in the court’s detailed record of proceedings which may be referred to wherever necessary.
36. At the conclusion of trial, the parties’ counsel filed their respective legal arguments and submissions. The court shall proceed to summarize their arguments hereunder.
DEFENDANTS’ FINAL WRITTEN SUBMISSIONS:
37. The defendants’ counsel first filed his final written submissions on 14/2/2022 wherein he isolated 2 issues for determination thus (see page 17 of the defendants’ final submissions):
i. Whether having regard to the inadmissible nature of the documents tendered by the claimant, this suit ought not to be dismissed for his failure to discharge the onus placed on the claimant?
ii. Whether the claimant’s employment was not lawfully terminated considering that his employment was a temporary one and giving the nature of the misconducts alleged against him (refined by this court).
38. In respect of his 1st issue, learned counsel argued that the claimant owns the burden of proving his case and so there is no doubt as to the legal and evidential requirements of the law with regards to his onus. He outlined several judicial authorities to support this trite argument and proceeded to submit that where a claimant fails to lead credible evidence in support of his pleadings, his case will not stand. Accordingly, a claimant alleging wrongful termination is mandated to plead and prove, not just the document originating the alleged employment, but the document(s) effecting the alleged termination.
39. The reason counsel believes that this claimant has failed in his evidential and legal burden is that both letters of employment and termination tendered by him were accordingly inadmissible in law for allegedly being public documents. As such, the claimant’s exhibits C1, C2, C5 and C8 must be expunged as inadmissible evidence.
40. He stated that they are secondary evidence of the originals which the claimant failed to explain where they were obtained from or to have had them certified accordingly in accordance with the evidence act and so this court must expunge them even though they were wrongfully admitted in evidence. Having thus done so, the effect is that the claimant’s suit is bereft of any evidence entirely. He thus urged the court to resolve this issue in favour of the defendants.
41. On the 2nd issue for determination, the defendants’ counsel argued that the employment was a master/servant kind which can be terminated at any time for any or for no reasons whatsoever. Accordingly, the court cannot foist an employee on an unwilling employer – CHUKWUMAH V. SHELL PET. DEV. COY OF NIGERIA Ltd. (1993) 4 NWLR (PART 289) 512 AT 560.
42. He said the courts are not entitled to look outside the scope of a written contract of employment to determine the relationship between the parties – IDONIBOYE-OBU V. NNPC (citation supplied). Also, that according to the case of ADEGBITE V. COLLEGE OF MEDICINE UNI OF LAGOS (1973) 5 SC 149 AT 162, it is now settled that the fact that an organization is a statutory body or authority does not presuppose that the conditions of service of all of its employees are statutory in nature.
43. Accordingly therefore, this claimant’s employment in 2006 was in virtue of an offer of temporary employment as an Assistant Lecturer in the defendants’ varsity and it was meant to have been for a period of 1 year only. That the defendants have pleaded through unassailable evidence that the claimant’s employment was never confirmed or was any formal interview conducted to regularize his appointment which is the prerequisite for recognizing him as a full and permanent employee. As such, his employment effluxed after 1 year and he should be regarded at best, as a casual staff of the varsity. He referred to paragraph 2.4 (iv) of the Abia State University Regulations Governing Conditions of Service for Senior Staff (exhibit D6) where it is accordingly provided that “an appointment on contract will cease on the agreed date unless reappointment has been offered and accepted”.
44. Having purportedly extinguished after 1 year (i.e. in August 2007), the claimant’s contract of employment with the defendants automatically converted to a master/servant one bereft of any statutory protection, argued the learned counsel for these defendants.
45. He argued on that even if this court is unconvinced by this argument, the claimant’s employment was rightly terminated by the defendants having thoroughly followed the process for terminating him for those allegations of misconducts against him. Accordingly, the defendants had established the acts of misconducts against this claimant as a lecturer which included the entries and submission of different sets of results for same course work undertaken by students, mass and deliberate failure of students, refusal to submit and or late submissions of exams results, extorting money from students in the guise of selling handouts to them in contravention of the university’s guidelines etc., which are all sufficient grounds for terminating the claimant’s employment.
46. He said all these allegations were not refuted by this claimant here in court in view of the overwhelming evidence produced in exhibit D3. Accordingly also, the claimant had in the course of answering questions before the panel of investigation, admitted to extorting students, illegal selling of handouts, and refusal to submit results which led to the then VC to utilize the varsity’s security to forcefully retrieve the results from the claimant. He said the claimant even tendered apologies for his actions.
47. Counsel argued that any conduct which is likely to be prejudicial to the proper administration of an institution or a body, or incompatible with an employer’s business, is sufficient enough reason to ground a termination or summary dismissal. He relied on L.C.R.I V. MOHAMMED (2005) 11 NWLR (935) 1 inter alia to buttress his submission on this.
48. Thus, considering the nature of the claimant’s employment with the defendants, his employment was lawfully terminated considering the contents of exhibit C1, paragraph 2.4 (iv) of the Abia State University Regulations (exhibit D6), and the claimant’s admissions of his misconducts as contained in exhibits D2, D3, and D4.
49. Again, counsel reasoned that assuming his termination was unlawful, the claimant is still not entitled to be reinstated since like he previously argued above, the relationship between these parties was purely master/servant and a servant is not entitled to a relief for reinstatement especially when the master is unwilling – DALHATU V. TURAKI (2003) 15 NWLR (PART 843) 310.
50. Finally, the defendants’ counsel urged the court to dismiss these claims in the interest of justice.
CLAIMANT’S COUNSEL’S SUBMISSIONS:
51. The claimant’s counsel raised a lone issue for determination thus: whether the termination of this claimant’s employment is lawful or valid giving the circumstances and facts of this case? He conceded that the manner of terminating any employment in Nigeria, is dependent on the type of employment. He relied on OLANIYAN V. UNILAG (1985) 2 NWLR (PART 9) 599.
52. He argued to the contrary that the claimant’s employment was never governed by master/servant principles, but by the rules governing statutorily protected employments in Nigeria. As such, by the nature of this claimant’s employment as contained and established in exhibit C1, his employment is not only governed and regulated by the Abia State University Law of 2005, but by the subsidiary regulations made thereunder. Therefore, counsel relies on paragraphs 1 and 2 of exhibit C1 which provide clearly what the terms of his employments are while engaged as a lecturer, to submit that the claimant’s employment with these defendants enjoys statutory protection.
53. Accordingly, the 1-year temporary employment was merely the probationary period for his employment with the defendants by which time, the claimant ought to have been interviewed and his employment regularized to a full-time employment in line with the provisions in exhibit D6. He relied on paragraphs (ii) and (viii) on page 7 of exhibit D6 which accordingly state that “temporary service of an employee appointed to an established post shall count as part of his period of probation” and that “council may impose a period of probationary service on any person appointed as a senior staff of the varsity” which normally does not exceed 2 years.
54. He queried how the defendants could not have understood that the 1-year temporary employment was nothing more than one-year probationary period after which the claimant must be formally interviewed to enable his qualification as a permanent staff in line with exhibit D6. Paragraphs 2.1 (i) and (ii) on page 4 of exhibit 6 accordingly provide for the classes of cognizable appointments in the varsity and it is from there that the claimant’s employment is categorized as a full-time temporary appointment. He is certain that the claimant possesses a pensionable appointment in view of that categorization and so this court should not accept the defendants’ arguments that the claimant is a contract employee of the varsity. Besides, the regulations does not recognize the concept of “casual staff” therefore the defendants’ arguments should be completely discountenanced.
55. Thus said, the claimant’s employment is statutorily flavoured and so he is entitled to his reliefs sought. Counsel relied on the case of COMP-GENERAL OF CUSTOMS (citation supplied) to buttress his assertion.
56. On the question of the claimant’s confirmation, counsel stated that CW2 had testified that when he was the HOD of the department of Mass Communication in the university, he was a member of the panel that officially interviewed the claimant before the end of the said 1-year probationary period in 2007. He said that testimony is unshaken and so urged this court to rely on same in reaching its decision. Also, the claimant had been promoted twice in 2012 and 2014 by the APC of the governing council even though the latter promotion was maliciously withheld of the claimant on the senate floor before a formal letter of promotion could be handed over to the claimant. Counsel referred to the testimony of CW1 in paragraphs 4 and 5 as well as in his further deposition in paragraphs 2, 3, and 4. He said these are corroborated by the testimony of CW2 in paragraphs 3 to 8 and 10, 11 as well as by exhibits C1, C2, and C8. These evidence are allegedly unchallenged by the defendants and should be sustained as credible, counsel urged.
57. Having thus been promoted in 2012, there is irrefutable presumption that the claimant’s employment was duly regularized and so the question of him not enjoying statutory protection cannot be raised whatsoever by these defendants. Again, counsel argued on, the fact that he had been employed with the defendants for over 10 years from 2006, promoted to a higher grade, held certain positions as a lecturer in that department, and giving the claimant the impression he is a recognized regular staff, are factors which this court must take into account in refusing the defendants’ contention. He relied on section 169 of the evidence act and the case of ABAYOMI V. SAAP-TECH NIG. Ltd. (2020) 1 NWLR (PT. 1706) 453, 501 and OAU V. ONIBANJO (1991) 5 NWLR (PT. 193) 549 AT 570 inter alia for legal inspiration.
58. Counsel further argued that the claimant is aggrieved over the suspension and ultimate termination of his employment. Accordingly, the defendants did not comply with the provisions of the rules governing employments in the varsity in effecting these processes. By section 31 (3) of the Abia State University Law 2005 therefore, where an employee is to be disciplined for any reasons whatsoever, he shall be given a notice of those reasons, afforded an opportunity of making representations before the council and be diligently afforded an opportunity to appear before any committee of investigation to make his defence. It is only then that the council if satisfied in the report of the investigating committee that such person should be removed from his office, will it proceed to write a signed direction terminating such employment.
59. Learned counsel thus argued that much as he does not dispute that the council has the power to terminate the claimant’s employment, the 2nd defendant as Vice Chancellor of the varsity, does not have the power to usurp the functions of the governing council in terminating the claimant’s employment. He said that the claimant’s employment can only be terminated in virtue of regulations 31 (3) (a) to (c) (i) and (ii). None of the outlined procedures were accordingly carried out in the circumstances of this case.
60. He further argued that the alleged report of the panel of investigation was unknown to the claimant. More so, the 2nd defendant constituted himself as chairman of the alleged staff disciplinary committee for the purpose of terminating the appointment of the claimant. He also stated that the termination letter was not even effected for and on behalf of the governing council. It is accordingly trite that where a statute provides for an employment, discipline and dismissal of an employee, such employment can only be terminated in the manner prescribed by the relevant statute and by no other means. Anything outside this will be declared a nullity by the court of law.
61. Having not complied with the required provisions under 31 (3) of Cap. 38 2005 law of Abia State, the defendants failed in according the claimant his inalienable and fundamental right of fair hearing. He impressed on the court to consider the testimony given by the claimant in his behalf as CW1 in reaching the above conclusion.
62. Counsel went on to attempt to discredit the minutes/records of the proceedings which the defendants used in terminating his employment by stating that CW1 and CW2 denied ever making any of the statements contained therein. He said the onus is on the defendants to establish the genuineness or potency of the said document and so this court should be wary of relying on it to deny this claimant of his reliefs. Accordingly also, since the allegations against the claimant were criminal in nature, it was incumbent on the panel which investigated the offences to ensure the minimal standard of proof was satisfactorily established before they can base their decision to recommend the termination of the claimant’s employment. Specifically therefore, there were insufficient evidence before that panel in respect of the allegations of the claimant falsifying examination results, or him committing forgery, and or him submitting 2 sets of results as claimed by these defendants. Counsel believes that the defendants rather than discharging the onerous burden placed on them, dumped tons of documents (attached as D4) on this court. They purportedly failed to demonstrate how those documents establish the claimant’s culpability which led to his termination from the 1st defendant varsity as required by the law – ACN V. LAMIDO (2012) 8 NWLR (PT. 1303) 560 – and so the defendants have sent this court on a voyage of discovery. Thus stated in the main, the claimant’s counsel believes that this suit must succeed on its merits.
63. On the propriety of the claimant’s exhibits which the defendants’ counsel applied that they be expunged for being inadmissible in law (exhibits C1, C2, C5 and C8 respectively), the claimant’s counsel argued that on 21/1/2019 when CW1 first testified in open court, the defendants’ counsel was not in court and so could not have known what transpired and why the claimant tendered the photocopies of his exhibits. He submitted that the originals were substituted with the leave of the court with the photocopies and so it was not up to the defendants to doubt the authenticity of those documents.
64. As for exhibit C8 which is the claimant’s acceptance letter dated 1/9/2006, it was accordingly tendered in open court through CW1 on 29/1/2020 without any objection by the defendants’ counsel and despite giving the defendants notice of producing the original during trial. Having thus failed in producing the original document, which is in their possession, the claimant is allowed in law to produce the secondary evidence of that document in prove of his case. He further canvassed that besides, section 12 of the NICA 2006 allows this court to resile from a strict application of the provisions of the evidence act when such is likely to cause grave injustice to a party. In any event, exhibits C1 and C5 which are 2 of the documents opposed by the defendants, were equally tendered by them thus obviating the necessity for the objection. Counsel therefore urged this court to refuse the defendants’ arguments raised in their issue number 1.
65. Having thus mixed understanding of the simple nature of the claimant’s employment to be statutorily protected, the defendants’ arguments and submissions should be entirely discountenanced, implied learned counsel. He finally urged the court to grant the reliefs sought in the interest of justice.
DEFENDANTS’ REPLY ON POINTS OF LAW:
66. In response to the claimant’s counsel’s submissions, the defendants’ counsel responded with a filed reply of 28/2/2022 wherein he set forth the following points:
67. Estoppel is an equitable remedy which does not emanate from any statute. As such, no amount of conduct or an implied action of a party can be taken as an express agreement in substitution of a statutory function. He regurgitated his arguments previously made concerning why the claimant’s employment is one of a master/servant and urged that the fact the defendants did not confirm the claimant’s employment after it elapsed in 2007, does not mean they are guilty of standing by in allowing the claimant to continue to work for over 10 years. This, accordingly, does not change the claimant’s status as a temporary employee since the contents of a document can only be amended or changed by another written document only. As such, if his employment were statutory in law, it can only be confirmed by statutory means and not by the conduct of the defendants. His contract of employment, having automatically extinguished in 2007 by operation of the law, the defendants cannot even retrospectively give life to it and so the claimant is for all intent and purpose, not an employee of the defendants after his contract expired. Counsel stated that the claimant’s arguments contending that the defendants failed to follow laid down procedures in terminating a statutory employment are inapplicable in this case since the claimant never enjoyed such status.
68. On the alleged lack of fair hearing by the investigative panel, the defendants’ counsel responded that all the exhibits showing that claimant’s fabrication of results were certified before they were tendered and so they are admissible in the form they are. Thus, being secondary evidence of the originals tendered during the investigation processes, the claimant cannot argue against their authenticity. He is convinced therefore that the documents are relevant, and they speak themselves and so urged the court to again, discountenance the claimant’s counsel’s submissions in that regard. He finally impressed on this court to dismiss the claimant’s suit entirely.
COURT’S DECISION:
69. I have satisfactorily and thoroughly gone through every process and evidence produced for and against this suit and I am thus convinced that the case can be resolved by determining a sole issue which is whether the claimant is entitled to the reliefs sought. Of course in doing so, this court shall examine and consider the questions raised by the parties’ counsel in their briefs of arguments.
70. The first and most pertinent question to determine therefore is the nature of the claimant’s employment relationship with these defendants. The law is trite and perhaps unnecessary of elaborate mention, that the nature of an employment is determinable only from the terms of the contract creating it. It means that in every employment case, the letter of employment (where there is one), is a vital instrument before the court for the purpose of understanding the nature of the parties’ rights and or liabilities if there is an alleged breach. It is also a useful document for the determination of the type of relationship between the parties. Therefore, an employment letter facilitates a common understanding of the terms and conditions of the working relationship. Ambiguity and conflicts will be avoided by setting expectations right from the beginning.
71. Thus said, the claimant’s letter of offer of temporary appointment (academic staff) dated 4/8/2006, states clearly that
“…the temporary appointment, which is effective from the day you assume duty, will be for a period of 1 year within which you will be formally interviewed. The appointment is subject to the provisions of the Abia State University Edict and the statutes, and any amendments made therein and to the regulations governing the conditions of service of senior staff made by council from time to time. A copy of the current regulations (referred to in the letter as “the regulations”), will be made available to you on demand.”
72. Copies of the said letter were tendered by both parties in this suit as exhibits C1 and D1. Therefore, giving a plain and literal interpretation of the wording of the letter above, it suggests that the employment is actually a statutory one and the only condition made therein for it to be eventually recognized as a full-time employment, was a year’s probationary period to be subsequently reconsidered after the conduct of a formal interview.
73. Meanwhile, according to CW2’s testimony, the claimant was indeed formally interviewed subsequently, and his employment ratified as full-time and permanent, sometime in 2007. He said he was even a member of the committee that interviewed the claimant whereupon he was recommended to the governing council to be retained as a permanent lecturer of the varsity – see paragraphs 4, 5 and 6 of the sworn deposition of 11/3/2020. The witness’ testimony was not discredited under cross examination on 25/1/2022.
74. I have absolutely no reasons whatsoever to disbelieve CW2’s testimony that the claimant’s employment was indeed ratified after the probationary 1 year. As such, the submissions made by the defendants’ counsel urging this court to discountenance the fact that the claimant’s employment was ever ratified, is unacceptable in the face of these palpable and probable facts. It is thus safe to hold that the claimant has elicited credible and probable evidence to establish that not only was his employment ratified by the defendants a year after he was first employed, but that his letter of employment created an employment that is statutorily protected. It is ludicrous to accept the defendants’ counsel’s opinion that the claimant was in a purely master/servant relationship with these defendants. His employment, having been ratified after the probationary 1 year, cannot be said to have been extinguished by operation of the law. Without therefore mincing words, this question is hereby resolved in favour of the claimant, and I so declare.
75. Tangential to the resolved question above is the question whether the claimant’s exhibits C1, C2, C5 and C8 should be expunged from the records of this court which is the subject of the defendants’ counsel’s issue number 1 of his final written submissions. As stated earlier, exhibits C1 and D1 are the same documents (claimant’s letter of temporary appointment) and it is unlikely that the court would be convinced to hold that they are irrelevant documents assuming they were even inadmissible as secondary evidence. Besides, it is true that when exhibits C1, C2, and C5 were tendered and admitted as exhibits, the defendants’ counsel was absent in court and the original documents were in fact, substituted with the photocopies with the leave of this court – see the proceeding of 21/1/2019. As for exhibit C8 which is merely an acknowledgement of the claimant’s acceptance of the offer of employment dated 1/9/2006, I easily do not concede with the defendants’ counsel’s submission that the document is inadmissible merely because it is a secondary evidence of the original which has already been proven to be in possession of his defendants and in respect of which a notice to produce was indeed served on them in the claimant’s pleadings – see paragraph 4 of the claimant’s reply to the amended joint statement of defence filed on 18/11/2019. As such, the objection raised in respect of these documents are hereby overruled.
76. The most crucial issue to consider now is the legality of the termination of the claimant’s employment. Having already outlined the arguments for and against this question above, it is unnecessary to again elaborate on the counsels’ submissions in respect of the issue here. In any event, having already determined above that the claimant’s employment with the defendants is statutory in nature, the law is simple that in order to determine a statutorily protected employment, the procedure for its determination must be strictly adhered and followed otherwise it will be nullified and quashed by a court of law – see IBAMA V. SPDC (NIG) Ltd. (2005) 17 NWLR (PT. 954) at 364.
77. In IGWILO V. CENTRAL BANK OF NIGERIA (2009) 9 NWLR (PT. 672) page 302, it was stated that
“in the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for such termination. But in the termination of a confirmed officer, the procedure for termination must be followed, otherwise the termination is invalid. Where the officer is guilty of misconduct or breach of regulation, then a lis inter partes arises and there arises also a need for a hearing before deciding his guilt. In that respect, there is a case for an administrative body acting judicially. The principles of fair hearing binding on judicial bodies are automatically imported, though the manner of hearing will still depend on the particular circumstances.”
78. It was further held in Igwilo’s case (supra) that:
“in public employment, where the employee is qualified by appointment for a permanent and pensionable position, and has actually satisfied the conditions, there should be in the interest of justice, a presumption that the employment cannot be terminated by mere notice but should be terminated only on misconduct or other specific reasons”.
79. I have taken time to produce the above case law in order to make the point that the parties’ counsel seem to both agree that the claimant’s employment was terminated and not dismissed. The incidents in either are different as “termination” is not in employment law, the same as a “dismissal”. Indeed, the letter terminating the employment is titled “TERMINATION OF APPOINTMENT” – see exhibits C5 and D5.
80. Meanwhile, exhibit D6 which is the Abia State University Regulations Governing Conditions of Service for Senior Staff indicate in paragraph 11.10 that:
i. An employee’s appointment may be terminated for general inefficiency in the performance of his duties, criminal offence, misconduct or for other offences as may be decided by the university’s council.
ii. A confirmed employee, whose employment is terminated shall be given 3 calendar months’ notice or alternatively, paid 3 months’ salaries in lieu of notice…
81. Interestingly, and as contained in the claimant’s letter of employment (exhibit C1 and D1 respectively), it is stated as follows:
“subject to the provisions of paragraph 8 below, council shall not terminate your appointment without having given 1 months’ notice in writing of its intention to do so or having tendered 1 month’s salary in lieu of notice. In the case of notice already given, council may tender payment of the amount of salary applicable to the period of notice unexpired and upon its doing so, the appointment shall terminate immediately”.
82. In paragraph 11.11, with respect to a dismissal however, the regulations state:
i. An employee whether or not under interdiction or suspension, who is found guilty of an act of gross misconduct prejudicial to the interest of the university, shall be summarily dismissed and therefore shall not be entitled to receive any emoluments from the date of his dismissal nor shall he receive any accrued pay including retiring benefits and traveling expenses.
83. From the entire facts presented before this court, it is unfortunately unclear whether the defendants intended to terminate the claimant’s appointment as a lecturer at the university or to dismiss him completely. This is so because it was never placed in evidence before this court if the claimant received any of his 3 months’ allowances and or salaries in lieu of notice if in fact his employment was only terminated by the defendants and not dismissed. Whereas the body of the letter of termination indicates an outright dismissal, the title of the letter indicates the opposite.
84. If the defendants or its governing council intended to do either in the letter served on the claimant to purportedly be the termination of his appointment, then the fact that the body of the letter does not provide the claimant’s 3 months’ salaries in lieu of notice as well as other benefits he would have been entitled to then (as per paragraph 11.10 (ii) of the regulations), becomes an issue, i.e. if indeed the determination of his employment was meant to be a “termination” and not a “dismissal”. Besides, the claimant would have been eligible to appeal against the decision to council through the HOD, Dean of college or the Vice Chancellor in virtue of paragraph 2.14 (iii) (d) of the regulations if it were a termination.
85. Conversely, if it was an outright dismissal, the letter does not specifically state so, and it is again difficult to understand why the approval of the governing council was not expressly shown to have been obtained before the dismissal order was made by the 2nd defendant (as per paragraph 11.11 (vii) (f) which states that an employee shall not be dismissed in accordance with this regulations until the committee has investigated into the matter and made a report to council and council has taken a decision to the effect that the staff be dismissed). The letter was clearly written by the registrar of the 1st defendant institution on the letter head of the Vice Chancellor and the words of the letter are precisely as follows:
“On the strength of the findings and recommendations of the panel of investigation into the alleged involvement in sharp practices in your department, the Vice Chancellor/Chairman of the staff disciplinary committee and management have approved that your appointment with the Abia State University be terminated for professional misconduct with effect from Monday, 16th May 2016.
You are to handover all university property in your possession, including your staff identity card to your HOD and the Deputy Registrar (personnel) respectively, before leaving your duty post.”
86. There is no mistaking the fact that the 2nd defendant acted unilaterally in his decision to either terminate or dismiss the claimant in virtue of the document above. As such, even if this court were to hold that the investigative panel proceedings and subsequent report were done substantially in accordance with the law or that the claimant has not established that his fundamental right to fair hearing was breached by these defendants during his trial before the investigation panel, the very fact that the letter either terminating or dismissing the employment of the claimant is obscure and made without the proper consent of the governing council, entitles the claimant to succeed in his claim against these defendants for unlawful termination of his employment.
87. To be clear, only the governing council of the 1st defendant institution (or upon its express authorization in that regard), can dismiss the employment of a confirmed senior staff of the institution as per paragraph 11.11 (vii) (f) cited above. Since it is however uncertain if the letter determining his employment is a termination or a dismissal in any case, this court has no other option than to accept as probable, the claimant’s claim that his employment which is statutory, was not lawfully determined either way, in accordance with the law.
88. Curiously, learned claimant’s counsel numerously relied on section 31 (3) and (7) of the Abia State University Law (cap. 38) Laws of Abia State 2005 to assert that the claimant’s employment was unlawfully terminated. Not only was that law not produced by any of the parties in this suit, but this court could also not lay its hands on same at the time of considering this case. In any event, it does not prejudice this court’s findings having declared already that the claimant’s case against these defendants, succeeds. The question of the fairness of the investigative panel led by Professor J.O Onwuka becomes irrelevant for determination and purely academic.
89. Accordingly, and in light of the above findings, the letter of termination of the claimant’s appointment is hereby quashed, and I so order.
90. Thus found, the claimant becomes entitled to immediate reinstatement being the remedy available to a holder of a statutory employment that was unlawfully terminated and as numerously pronounced by the law courts over the years to date – see the case of OLANIYAN AND ORS. V. UNI. OF LAGOS STATE AND ANOR (1985) LPELR – 2565 SC as reference. The intendment is to place the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive and involves a revocation of the act of dismissal and the restoration of payment of wages for the intervening periods.
91. The claimant was placed on suspension without pay since sometime in 2016. No letter of suspension was tendered by these parties, and nothing was particularly offered as an explanation by the defendants about the legality of the alleged suspension. The claimant stated that the suspension was made orally by the 2nd defendant and that he had protested to the defendants by letter dated 27/5/2016 against the purported oral suspension – see exhibit C4.
92. I believe the claimant when he stated that he was not served with any written suspension letter but was orally informed by the 2nd defendant that he had been placed on suspension. In any event, paragraph 11.8 (ii) of the regulations provide under suspension that the vice chancellor may, in case of a misconduct by a member of staff, suspend such staff and any such suspension shall forthwith be reported to the council. Again, the mandate here is unequivocal that the governing council is required to have knowledge of such action carried out by the VC. How else will this be effectively done unless a letter communicating such suspension is written to a staff and copied to the governing council?
93. This court is unimpressed by the measures taken unilaterally by the 2nd defendant with respect to the claimant’s cause. Certainly, the claimant is entitled to half payment of his salaries for the duration of his suspension despite the allegations against him which in any case must not exceed a period of 3 months in accordance with paragraph 11.8 (iv) of the regulations pending when a decision must have been reached by the council. So, while it is critical for the 2nd defendant to have the power to suspend an errant staff of the varsity to instill discipline, it is abhorrent for him to exercise his powers arbitrarily and Machiavellian.
94. The suspension of the claimant is thus hereby declared illegal and lifted and his half salaries from the day he was physically and illegally suspended to 3 months thereafter, are ordered to be paid to the claimant forthwith. The defendants shall therefore pay the claimant’s full salaries from 3 months after his illegal suspension, to the date of this judgment (ending May 2022), and I so order.
95. Consequently, this court finds probable, the claimant’s claims and shall proceed to make its declarations on each of the reliefs sought as follows.
1. Reliefs numbers 2, 4, 6, 7, 8, and 9 are hereby granted as sought.
2. Reliefs numbers 1, 3, 5, and 11 are refused having not formed the basis of the findings above.
3. As for relief number 10 for N2M general damages, this court agrees that giving the level of frustration and privation the claimant was put through since 2017, he should be awarded a fair compensation. As such, this court awards the sum of N1M naira only to the claimant as damages incurred as a result of the unlawful termination of his employment.
4. All the sums awarded to the claimant shall be paid by these defendants within 30 days from delivering this judgment which sums shall in default of payment, attract a 10 per centrum interest per annum until the entire judgment sum is finally liquidated.
96. The claimant’s case succeeds, and judgement is entered accordingly.
Delivered in Owerri this….day of ……………….2022.
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Hon. Justice I.S. Galadima,
Judge.
Public access to NICN decisions:
Judgments and reasons for the judgments are published, in full, online at https://nicnadr.gov.ng. NICN decisions are available to the general public shortly after a copy each has been sent to the claimant(s) and respondent(s) in a case.
