IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

   HOLDEN AT YOLA

BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI

DECEMBER 1, 2022                                      SUIT NO: NICN/YL/06/2020

 

BETWEEN

DR. BOBBOI YAKUBU………………………………CLAIMANT

AND

FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA

(ALSO KNOWN AS MODIBBO ADAMA UNIVERSITY

OF TECHNOLOGY, MAUTECH, YOLA)……………………….DEFENDANT

 

REPRESENTATION:

Chief L. D. Nzadon Esq. with H. Omeh Esq. for the Claimant.

E.O Odo Esq with J Williams Esq and N. A. Muhammad for the Defendant.

 

JUDGMENT

1.0.           INTRODUCTION:

The Claimant initiated this Suit on the 26th of March, 2020 by a Complaint seeking the following reliefs against the Defendant, as copiously set out on the Complaint as well as the Statement of Facts, thus:

(i)               A declaration that the Claimant is a Professor of Monogastric Nutrition and Management (subject to external assessment) in the Department of Animal Science and Range Management, School of Agriculture and Agricultural Technology, Modibbo Adama University of Technology, Yola and cannot be removed from the said office except in accordance with the procedure laid down in Section 15 of the Federal Universities of Technology Act CAP F23 Laws of the Federation of Nigeria, 2004.

(ii)            A declaration that the purported termination of the Claimant’s appointment as conveyed in the Letter MUTECH/R/SP603/Vol.1 dated 11/03/2020 is ultra vires the Defendants, contrary to Section 15 of the Federal Universities of Technology Act CAP F23 Laws of the Federation of Nigeria, 2004, null and void and of no effect whatsoever.

(iii)          A declaration that the termination of the appointment of the Claimant with the Defendant vide letter dated 11th March, 2020 is against the principles of fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and contrary to the provisions of Article 2.25 (h) (i) Condition of Service for Senior Staff of the Modibbo Adama University of Technology, Yola.

(iv)          An Order setting aside the purported termination of the Claimant’s employment with the Defendant vide letter dated 11th March, 2020.

(v)             A declaration that the Claimant is and remains a bona fide Senior Academic member of staff of the Defendant and is entitled to be returned to the position he held with the Defendant including enjoyment of promotion as his colleagues unaffected by the said purported termination.

(vi)          An Order of payment by the Defendant to the Claimant of arrears of salaries and other emoluments from 1st January, 2020 till the date of reinstatement including payment of money in lieu of Annual Leave and other allowances that are legitimately due to the Complainant.

(vii)        An injunction to restrain the Defendant, their servants, and/or agents from preventing the Claimant from performing any of the functions and duties of his office or offices as Professor of Monogastric Nutrition and Management (subject to external assessment) or interfering with the enjoyment of the rights, privileges and benefits attached to his offices.

(viii)     An order restoring the Claimant to his post and office or offices and to all rights and privileges attached thereto.

(ix)           Further or better relief as this court may deem fit to make.

The Defendant responded to the Claimant’s originating processes vide a Statement of Defence on the 30th of September, 2020 and all other accompanying processes and frontloaded copies of two documents.

It is pertinent to note at this stage that trial in this suit was on record whereof parties relied on documentary evidence and exhibits frontloaded by parties in this case. This is sequel to the Defendant’s Application and the mutual consent of parties made pursuant to Order 38 Rule 33 of the Civil Procedure Rules of this Honourable Court.

2.0.           STATE OF PLEADINGS AND EVIDENCE LED BY PARTIES

By the Claimant’s Statement of Facts and Written Statement on Oath, the case of the Claimant was that he was employed on the 6th of October, 1999 as a Graduate Assistant by the Defendant which is a creation of Statute by the provisions of the Federal Universities of Technology Act, Cap F28 Laws of the Federation of Nigeria, 2004, sequel to the transfer of his services from the Adamawa State Government to the Defendant. That he rose through the academic rungs and by his last promotion on the 5th of December, 2017 to the position of an Associate Professor of Monogastric Nutrition and Management (Subject to favourable external assessment). The Claimant averred that in his 28 years of academic service with the Defendant, there was no reprimand, query, warning or disciplinary measure directed at him for misconduct.

Claimant averred that on the 27th of July, 2018, following a Petition by the Solicitors of a PhD Student in Animal Science, Chabiya Ati Bathon, the Dean of the School of Agriculture and Agricultural Technology of the Defendant, constituted a 5-member Panel to investigate an alleged case of victimisation by the Claimant and one Dr. T. F. Mbahi against the said student. That the Panel sat, interacted with the Complainant/Student, the Claimant and the said Dr. T. F Mbahi, interviewed witnesses and at the end of the exercise, submitted a Report exonerating the Claimant and Dr. T. F Mbahi from the allegation of victimisation.

That the Vice Chancellor of the Defendant was not satisfied with the outcome of the Panel’s Report against the Claimant and Dr. T. F. Mbahi, and consequently set up another Committee to investigate an allegation of Sexual Harassment against the Claimant and Dr. T. F Mbahi. That the Committee invited the Claimant and Dr. T. F Mbahi to appear before it on the 18th October 2018 with a Comprehensive Written Statement on the matter and the Claimant as well as Dr. T. F. Mbahi did so. That both of them appeared twice before the said Committee which heard the allegation of the said student and when she was asked if any of them sexually harassed her, she answered in the negative. Claimant however stated that he as well as the other accused person was not given an opportunity to confront the Witnesses that appeared before this Committee. That most often the proceedings of the Committee were conducted in their absence, except when they were invited and did so on time occasions. That this second Committee submitted their Report.

Claimant averred that following the submission of the second Committee’s Report, the Vice Chancellor set up a third Committee, Staff Disciplinary Committee, to consider the Report of the second Committee and make recommendations to the management of the Defendant. That the Staff Disciplinary Committee, without inviting and hearing from the Claimant but acting solely on the Report of the second Committee, on the 26th of November 2019, submitted its Report to the Vice Chancellor and recommended the termination of the appointment of the Claimant and Dr.  T. F. Mbahi in line with paragraph 8(i) (iii) of the Condition for Service of Senior Staff (CONTISS 6-15) of the Defendant.

That consequently to the above, on the 17th of December, 2019, the Defendant through its Registrar wrote and served the Claimant with a Letter of Suspension allegedly from the Defendant’s Management, on the grounds of involvement in an alleged case of Sexual Harassment and Victimisation and the said Letter indicated that it was a misconduct under Section 1.3.4 of the Condition of Service for Senior Staff of the University. That on the 20th of December, 2019, another Letter of Suspension this time from the Vice Chancellor on the same subject matter and grounds was written by the Vice Chancellor of the Defendant to the Claimant and stating that this second Letter supersedes that of 17th of December, 2019.

Claimant stated that in response to the above Letters of Suspension, he and the other accused jointly wrote a Letter to the Chairman of Council of the Defendant appealing for his intervention in a matter of grave injustice to them. That the Council of the Defendant however in its 96th Regular Meeting on the 27th of February, 2020 announced the termination of the appointment of the Claimant and the other accused for involvement in acts of victimisation and sexual harassment and the Defendant, sequel to the above, on 11th March, 2020 wrote the Claimant to inform him of the termination of his appointment supposedly in line with Paragraph 3 of Claimant’s Letter of Appointment by indicating that the Defendant would pay the Claimant 3 Months’ Salary in Lieu of Notice.

Claimant stated that sequel to the above injustice meted on him, he through his Solicitors on the 16th March, 2020 served the Defendant with a Notice of intention to commence legal action against the Defendant unless the Defendant rescinds the decision to terminate his appointment. Moreover, that he also rejected the offer of 3 Months Salary in Lieu of Notice made by the Defendant. That despite all these, the Defendant still went ahead and paid the 3 Months Salary into his bank account on the 14th September 2021, about one and a half years after the unlawful/wrongful termination of his appointment by the Defendant. Meanwhile, the Claimant has on the 16th September, 2021 returned the 3 Months Salary paid to him in lieu of notice to the Defendant which the Defendant acknowledged on 30th September, 2021.

Claimant stated that despite all these steps taken by the Claimant, the Defendant has refused and failed to heed his demand. That the Defendant not having been favourably disposed to the appeal of the Claimant and the demand for his reinstatement, the Claimant instituted this action against the Defendant for legal redress.

The following documentary evidence were frontloaded and being relied upon by the Claimant for this Honourable Court to find for him:

1)                Exhibit C1: Claimant’s Appointment Letter dated 6th October, 1999

2)                Exhibit C2: Claimant’s Memorandum as to the Terms of Appointment with the Defendant dated 18th October, 1999

3)                Exhibit C3: Notification of Appointment dated 8th December, 1992 with Ref No. APP/51859/65 from Adamawa State Civil Service Commission to the Commissioner, Ministry of Agriculture, Yola

4)                Exhibit C4: Letter from Adamawa State Civil Service Commission dated 16th August, 2000 to the Commissioner, Ministry of Agriculture, Yola

5)                Exhibit C5: Notification of Appointment dated 27th September, 2000 from Adamawa State Civil Service Commission to Registrar, Federal University of Technology, Yola (Moddibo Adama University of Technology) with Ref. AD/17353/20

6)                Exhibit C6: Letter of Promotion (subject to external assessment) dated 5th December, 2017 with Ref. No. MAUTECH/R/EST/SP.603/Vol. I.

7)                Exhibit C7: Letter of Complaint dated 25th July, 2018 against the Claimant and Dr. Toma Mbahi Fulani from a PhD Student’s Solicitors to the Dean of Agric and Agricultural Technology MAUTECH

8)                Exhibit C8: Copy of Memorandum setting up the 5-member Panel of the Dean dated 27th July, 2018

9)                Exhibit C9: Report of the 5-member Panel set up by the Dean

10)            Exhibit C10a and C10b: Two Letters of Invitation dated 2nd August, 2018 and 27th August, 2018, respectively addressed to the Claimant by the 5-member Panel set up by the Dean

11)            Exhibit C11: Copy of the Letter (Memo) of Invitation dated 18th October, 2018 addressed to the Claimant by the Investigation Committee Set up by the Vice- Chancellor

12)            Exhibit C12: Claimant’s Response dated 18th October, 2018 in compliance with the Letter of Defendant dated 18th October, 2018

13)            Exhibit C13: Copy of the Letter of Invitation dated 18th February, 2019 addressed to the Claimant by the Investigation Committee Set up by the Vice Chancellor

14)            Exhibit C14: Report of the Investigation Committee Set up by the Vice Chancellor

15)            Exhibit C15: Report of the Staff Disciplinary Committee on Sexual Harassment and Victimisation dated 16th December, 2019 and presented to the Vice Chancellor of the Defendant vide covering letter dated 26th November, 2019

16)            Exhibits C16a and C16b: Letters of Suspension dated 17th December, 2019 and 20th December, 2019, respectively addressed to the Claimant by the Defendant

17)            Exhibit C17: Joint Letter of the Claimant and Dr. T. M. Fulani dated 27th December, 2019 addressed to the Chairman Governing Council of the Defendant

18)            Exhibit C18: Minutes of the Meeting of the Defendant’s Governing Council dated 27th February, 2020

19)            Exhibit C19: Copy of the Letter of Termination of Appointment dated 11th March, 2020

20)            Exhibit C20: downloaded News from the “General News” online dated 03/03/2020 and Titled: “Two lecturers in MAUTECH received separate Termination letters over Sexual Harassment and Financial Indiscipline”

21)            Exhibit C21: downloaded News from the “PUNCH” online dated 03/03/2020 and Titled: “Sex-for-marks: Adamawa Varsity sacks to lecturers”

22)            Exhibit C22: Copy of Notice of Intention to Commence Legal Proceeding against the Defendant dated 16th March, 2020 issued by the Claimant’s Solicitors

23)            Exhibit C23: Copy of Condition of Service for Senior Staff (CONTISS 6-15) approved by Council on 23rd September, 2014

24)            Exhibit C24: Letter of Refund from the Claimant to the Defendant dated 16th September, 2021

25)            Exhibit C25: Acknowledgement of Receipt of Refund dated 30th September, 2021

In defence, the Defendant admitted that the Claimant was its employee who was employed by a Letter of offer of employment dated on the 6th October, 1999 and he remained in the service of the Defendant till his service was terminated by a Letter dated 11th day of March, 2020. Defendant admitted these documents. Defendant averred that it rightfully and lawfully terminated the appointment of the Claimant pursuant to the conditions of service and his contract of employment on the ground that his services were no longer needed by the Defendant, notwithstanding that the Claimant was facing disciplinary procedure when his employment was terminated. Defendant averred that the termination of Claimant’s appointment by the Defendant of which Three (3) Month’s Salary was paid in lieu of notice is lawfully and validly done under the terms of his appointment.

The two documents frontloaded by the Defendant are thus:

Exhibit D1: A copy of the Claimant’s Appointment Letter (same as Exhibit C1)

Exhibit D2: A copy of the Claimant Termination Letter (same as Exhibit C19)

This Honourable Court observed that the marking of the Claimant’s frontloaded documents by the Defendant does not tally with the marking given by the Claimant in his adopted Final Written Address. This Honourable Court shall adopt the markings by the Claimant as the marking for the said frontloaded documents in this Judgment.

3.0.           SUBMISSIONS OF THE DEFENDANT

Defendant’s Learned Counsel adopted the Defendant’s Final Written Address as his oral argument and legal submission to urge this Honourable Court to dismiss the Claimant’s action. Defendant distilled a lone issue for determination of this Honourable Court thus:

Whether the Claimant has sufficiently proven his case to be entitled to the reliefs sought in this matter?

Defendant’s Learned Counsel contended that the Claimant has failed to sufficiently prove his case and thus not entitled to the reliefs sought. On who has the onus of proof and the standard of proof required in this case, Learned Counsel relied on the judicial authorities of Newbreed v Erhomosele (2006) 2 SCNJ 198 at 215, Ogwuche v B.S.C.S.C. (2014) 7 NWLR (Pt. 1406) 374 at 393 paras B – F, Emirate Airline v Ngonadi (2014) 9 NWLR (Pt. 1413) 429 at 473- 474, paras G-D and Kokoro-Owo v Ogunbambi (1993) 8 NWLR (Pt. 313) 627.

Defendant Learned Counsel argued that since parties mutually consented to trial on record pursuant to Order 38 Rule 33 of the Rules of this Court, parties are bound by their respective frontloaded documents and exhibits and as such any other document or exhibit tendered from the Bar which do not form part of the frontloaded documents before the Court has no evidential value and this Honourable Court is urged to discountenance such document tendered from the Bar by the Claimant Learned Counsel. Learned Counsel relied on the judicial authority of Terab v Lawan (1992) 3 NWLR (PT. 231) 569, 590 to urge this Honourable Court to expunge such documents from its record.

Learned Counsel contended that the termination of Claimant’s employment from service by the Defendant in this instance is valid, lawful and justified taking into cognizance the terms of employment of the Claimant as provided in paragraph 3 of Exhibit C1 and D1, the Letter of Appointment. Learned Counsel relied on the judicial precedent of Adekunle v UBA Plc (2016) LPELR-41124(CA) 20-21, paras C – A to submit that in determining employment contract dispute, the Court is to look at and construe the terms of the contract as voluntarily entered into by the parties. Learned Counsel referred to Exhibit C1/D1, that this constitute the terms of employment of the Claimant and the Claimant has not established by any evidence that the Defendant breached any of the terms of employment contained therein in this case.

On the Claimant’s contention that being an employment with statutory flavor, it cannot be terminated by giving notice or payment in lieu of notice in line with the terms of contract, Defendant Learned Counsel argued that even the case of Olaniyan v Unilag (supra) cited and relied on by the Claimant held that irrespective of the statutory flavor in any contract of employment, employment can still be terminated upon payment of salary in lieu of notice in line with the contract of employment so long as the reason is not misconduct. Learned Counsel referred to Olaniyan v. University of Lagos (Supra) at 621 paras A – D. Learned Counsel thus argued that the major consideration is the reason for the termination.

Learned Counsel contended that the reason for termination of the appointment in this case is clearly stated in Exhibit C19 as “services no longer required by the University” and as such the provisions of Section 15 of the Federal University of Technology Act, 2004 is not applicable since the ground for termination was not misconduct. Learned Counsel argued that it is therefore foolhardy for the Claimant to attempt to convince this Honourable Court by reference to the Council Minutes of meeting which cannot help the case of the Claimant, as the report in question is not among the documents frontloaded before this Honourable Court, more so when the Minutes cannot be exhaustive of decisions reached by Council in that meeting. Learned Counsel referred to Exhibit C19 which made it clear that the Council “resolved among other things” that the service of Claimant was no longer required.

Defendant Learned Counsel also contended that the disciplinary procedure initiated against the Claimant was never concluded and there is no law that makes it mandatory that every disciplinary procedure must be concluded before the power to terminate an appointment can be exercised under a contract of employment. Learned Counsel argued that since the termination was not based on misconduct, there is no requirement of compliance with fair hearing. Learned Counsel argued that the contention of the Claimant that the Defendant admitted there was allegation of sexual harassment and victimization is of no moment since this termination was not founded on such grounds. Learned Contended that the fact that a disciplinary procedure was set in motion against the Claimant does not in any way suspend the operation of the right of the parties under the contract of employment and as such the Defendant was on firm ground in acting under the contract to terminate the appointment of the Claimant and paying salary in lieu of notice as stipulated under the contract of employment.

Defendant Learned Counsel submitted that since the only reason the Claimant is asserting that the termination was unlawful is ground of lack of fair hearing, that he was not given opportunity to defend himself; this Honourable Court must restrict itself to that pleading. Learned Counsel relied on Ojo v FBN (2013) LPELR – 23515 (CA). Learned Counsel argued that fair hearing does not come up in this instance because the termination was done in line with paragraph 3 of the term of employment Exhibit C1/D1 which provides that “His appointment shall be for two/three years in the first instance ….. And it may however be terminated at any time by giving three month notice in writing or payment of salary in lieu by either side.” Learned Counsel submitted that since ground of fair hearing does not apply in this instance, the Court is urged to hold that the termination was valid and lawful in line with the above cited paragraph 3 of Exhibit C1/D1. Learned Counsel relied on the pronouncement in Jombo v P.E.F.M.B (2005) 14 NWLR (Pt 945) 443. Also relying on the judicial authority of Nfor v Ashaka Cement Co Ltd (1994) 1 NWLR (Pt 319) 222 to the effect that the Defendant is not even obliged to give any reason for the termination.

Defendant’s Learned Counsel thus submitted that under common law contract of employment, the court cannot compel an employer to retain the services of an employee and an employee cannot be compelled to remain in the services of his employer. Learned Counsel argued that the fact that the employment in the instant case enjoys statutory flavor does not change the position as the contract between the parties is what must be construed. Learned Counsel thus submitted that this Honourable Court cannot grant a declaration against the employer to retain the services of the employee whose services are no longer required. Learned Counsel further argued that in the present case where there is no breach of the contract/terms of employment the Claimant has no right to ask for relief other than the salaries in lieu of notice which was duly paid. Learned Counsel urged this Honourable Court to dismiss this case accordingly.

4.0.           SUBMISSIONS OF THE CLAIMANT

The Claimant Learned Counsel adopted the Claimant’s Final Written Address as well as the Reply on Points of Law as his oral submission and legal argument to urge this Honourable Court to grant the reliefs sought by the Claimant in this case. In the adopted Final Written Address, the Claimant formulated a sole issue for determination, thus:

Whether the Defendant was justified in terminating the appointment of the Claimant in the manner it did notwithstanding that the Claimant’s appointment is one with a statutory flavour and in breach of the provisions of the Act establishing the University and the Principles of Fair hearing?

Claimant Learned Counsel contended that the employment of the Claimant is with statutory flavor and as such the Defendant cannot terminate it by merely giving 3 Months’ Notice or Payment of 3 Months’ Salary in lieu of notice as it did, relying on contract of employment and conditions of service but can only terminate it in by complying with the statutory procedure regulating the employment of the Claimant. On when an employment is with statutory flavor, Claimant Learned Counsel relied on the judicial authorities of CBN v Igwillo [2007] 4-5 SC 154 at 172, Olaniyan v University Lagos [1985] 2 NWLR (Pt.9) 549 at 599, Shitta-Bey v FPSC [1981] 1 SC 41; Eperokun v University of Lagos [1986] 4 NWLR (Pt.34) 162; Bamgboye v University of Ilorin [1999] 10 NWLR (Pt.622) 290; University of Maiduguri Teaching Hospital v Dawa [2007] 16 NWLR (Pt.739) 424.

Claimant Learned Counsel argued that in this case the Defendant is a creation of statute established under Section 1(1)(e) of the Federal Universities of Technology Act, 2004 and whose members of staff are by virtue of the provisions of Section 318(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Public Officers whose appointments have a statutory flavor. Learned Counsel argued that the Claimant in this case is an academic senior staff on a permanent and pensionable appointment with the Defendant and in fact an Associate Professor who has a tenure appointment and as such any termination of his appointment must follow the laid down statutory procedure to be valid, lawful and effective. Learned Counsel relied on the judicial authority of Olaniyan v University (supra) at 653-655.

Learned Counsel argued that the termination for the reason of “service no longer required” stated in the Letter is a mere smoke screen as the actual reality is that the termination was on ground of alleged misconduct, though the Defendant denied that the termination was on ground of misconduct. Learned Counsel argued that nevertheless the Defendant failed to follow the procedure for disciplining a senior academic staff of the Defendant when it purported to terminate the appointment of the Claimant by indicating it would pay him 3 months’ salary in lieu of notice. Learned Counsel contended that this Defendant’s act predicated on defence on the contract of appointment of the Claimant, which allows the Defendant to terminate the Claimant’s appointment by merely giving him 3 months’ notice or pay him a salary of 3 months in lieu of notice and without fair hearing does not avail the Defendant in this case.

Learned Counsel referred to Section 15 of the Federal University of Technology Act on the procedure for Removal and discipline of academic, administrative and professional staff of the Defendant. Learned Counsel argued that though this Section provides for procedure for removal on ground of misconduct, it has been held in judicial pronouncement that this is the only basis upon which a tenure appointment with statutory flavour, like in the case of the Claimant, can be terminated, and not by merely giving notice or payment in lieu of notice. Learned Counsel relied on the locus classicus pronouncement of Kayode Eso, JSC; Aniagolu, JSC and Karibi-Whyte, JSC in Olaniyan v University of Lagos (Supra) as well as the decision in Council of Federal Polytechnic, Ede & Ors v Olowookere (2012) LPELR – 7935 (CA).

Learned Counsel thus submitted that it is of no moment that the Defendant decided to ignore the allegations of sexual harassment and intimidation made against the Claimant and his colleague when purporting to terminate the appointment of the Claimant and so doing did not thereby absolve the Defendant of the responsibility to comply with the provisions of Section 15 of the Federal University of Technology Act. Learned Counsel relied on Olaniyan v Unilag (supra) at 671, para B; 672, paras E-F, 673, paras A-B; 676, paras A-B, 677, paras D-E, 678, paras C-H.

Claimant Learned Counsel also submitted that the Defendant having not denied the averments at paragraphs 1 to 12 of the Statement of Facts, must be deemed to have admitted the material facts in those averments and thus requires no further proof, as a general traverse will not suffice as denial. Claimant’s Learned Counsel relied on statutory and judicial authorities, namely: Lewis & Peat (NRI) Ltd v Akhimien (1976) 7SC 157 at 163 & 164, Alhassan & Anor v Ishaku & Ors [2016] 10  NWLR (Pt1520) 230 at 298, paras F-H and 299, paras A-B as well as the provisions of Sections 20 and 123 of the Evidence Act, 2011.

On the above judicial authorities, Claimant Learned Counsel urged this Honourable Court to deem as admitted by the Defendant the allegations of the commission of criminal offences of sexual harassment and intimidation against the Claimant and his colleague Dr. T. F Mbahi; the fact that the Claimant appeared before a Panel of Inquiry set up by the Dean of the School of Animal Science and Range Management of the Defendant and later before a second Committee set up by the Vice Chancellor; and the fact that the third committee, Staff Disciplinary Committee sat over the allegations against the Claimant without giving him a hearing, having merely reviewed the investigation report of the second Committee and on that basis only recommended the termination of appointment of the Claimant.

Learned Counsel for the Claimant referred to paragraphs 9 and 10 of the Statement of Defence and submitted that same Defendant who denied that the termination was on ground of misconduct also prevaricated in paragraph 9 that the Claimant appeared before Staff Disciplinary Committee on allegations, meanwhile that averment of the Defendant is not true because the Claimant never appeared before the Staff Disciplinary Committee. Learned Counsel referred to Exhibit C12, the Report of the Staff Disciplinary Committee and submitted that it shows that the matter was referred to the said Committee by the Vice Chancellor to investigate a case of sexual harassment and victimisation and the Report was submitted to the Vice Chancellor not to Council, which goes to show that the Committee was not Committee of the Council as the Defendant would want this Court to believe. Learned Counsel referred to paragraph 10.00 subtitle “APPRECIATION” of the Exhibit C12. Learned Counsel submitted that this shows that the Committee was an ad hoc Committee set up by Vice Chancellor and not by the Council and the said Report of the Committee was submitted to Vice Chancellor and not to the Council, while the Committee hoped that the Report would be useful to the “Management” and not the Council.

Claimant Learned Counsel without conceding submitted that even if the said Staff Disciplinary Committee was a Committee of the Council, the fact that the Committee did not give the Claimant fair hearing but only reviewed the Report of the second Committee set up by the Vice Chancellor to make its recommendation rendered it invalid and worthless. Learned Counsel relied on the authority of Garba & Ors v University of Maiduguri [1986] 550  NWLR (Pt.18) on the five components of fair hearing and submitted that in this case, the Staff Disciplinary Committee was in gross violation as it did not hear any witnesses nor give an opportunity for the Claimant to appear before it but merely reviewed the record of the investigation carried out by the Committee set up by the Vice Chancellor (Exhibits C14 and C15) and found him guilty of misconduct and recommended the termination of the Claimant’s appointment.

Claimant Learned Counsel further submitted that the camouflage and denial by the Defendant that the termination was based on allegation of misconduct is also dismantled and exposed by Exhibits C16(a) and C16(b), C17 and C18. Exhibit C16(a) is Letter of Suspension by Management, which the one Exhibit C16(b) Letter of Suspension under the hands of the Vice Chancellor superseded and which all acted upon Exhibit C12 Report of Staff Disciplinary Committee, and despite Exhibit C17 the Joint Letter of Appeal for intervention by the Claimant and another, the Defendant’s Council at its 96th Meeting evidenced in Exhibit C18 at page 11 lines 1 – 21 thereof clearly stated that the Council found the staff wanting on alleged act of misconduct and terminated their appointments in line with Section 8.1(iii)(f) of Condition of Service for Senior Staff of the University, and particularly with respect to the Claimant, (SP.603): Termination of appointment for victimizing Miss C. A. Bathon, a Postgraduate Student of Department of Animal Sciences and Range Management. Learned Counsel submitted that this clearly put a lie to the denial by the Defendant. Learned Counsel submitted that this also put a lie to the reason stated in Exhibit C19, Termination Letter, which was “services no longer required” painted therein as the reason given by the Council in that 96th Meeting, and very obvious that Exhibit C19 tells lie on Exhibit C18.

Claimant Learned Counsel also urged this Honourable Court to note from evidence before the Court that Exhibit C17, Claimant’s Joint Appeal was not referred to before the Defendant’s Council took its decision and neither did the Council respond to the Claimant’s Solicitors Letter, Exhibit C22 and it was almost one and half years after the purported termination that the Defendant purported to pay 3 Months’ Salary in lieu of notice into the Claimant’s Account, which payment the Claimant rejected and the Defendant acknowledged receipt. Learned Counsel referred to Exhibit C24 and Exhibit C25.

Finally, the Claimant Learned Counsel relying on the judicial precedent of Olaniyan v Unilag (Supra) at 685, A-B submitted that the termination without complying with the provisions of statute that governs the employment of the Claimant with the Defendant, that is Section 15 of the Federal Universities of Technology Act, 2004 is arbitrary, ultra vires, unlawful, void and of no effect and the Claimant is entitled to all the reliefs sought in this case including reinstatement. Learned Counsel submitted that this Honourable Court is bound by stare decisis to follow and apply this judicial authority of the apex court.

On points of law, Claimant Learned Counsel submitted that the contention of the Defendant Learned that documents should be expunged because no witness was called to relate it to specific aspects of the Claimant’s case, relying on Terab v Lawan (supra) is not applicable in this case where parties mutually agreed and consented to trial on record in accordance with Order 38 Rule 33 of the Rules of Court, more so when the Rules of Court is a subsidiary legislation while Tera v Lawan is rule of practice.

Learned Counsel relied on the judicial authorities of Buhari v I.N.E.C [2008] 19 NWLR (Pt 1120) 246 at 347 paras A-D and Iloabachi v. Iloabachie [2000] 5 NWLR (Pt 656) 178 at 201 paras D to submit that the Defendant having consented to this procedure cannot be heard to complain or question the procedure used in tendering the documents, and thus the admission of those documentary evidence by the Defendant without objection amounts to waiver of any right to so object at this stage and it cannot be reopened even on appeal. Learned Counsel also relied on the judicial authorities of Adeogun v. Fasogbon [2011] 8 NWLR  (Pt. 1250) 427 at 453 paras C-F and 463 paras F and Niger Classic Investment Ltd V.UACN Property Development Company Plc & Anor (2016) LPELR-41426 at 27-28 paras E-F on the principle that party is not allowed to approbate and reprobate as well as the doctrine of waiver.

Claimant Learned Counsel relied on the judicial precedent of Eromosele v. FRN (2018) LPELR-43851 at 13, paras A-C to submit that in order to do substantial jusitice, the Court is entitled to look at its files or records and make use of its content in resolving issues in dispute before it. Learned Counsel thus submitted that the Defendant is stopped by conduct from raising objection to the documents and the procedure the Defendant voluntarily consented to in this case.

5.0.           THE COURT’S DECISION

After careful consideration of the processes filed and the submissions of Counsel in the respective written addresses, I find that it is not in dispute that the Claimant’s employment is clothed with statutory flavour. The sole issue in dispute is wither the Defendant has lawfully determined the Claimants employment in the way it did being an employment clothed with statutory flavour.

Before I proceed to determine the above issue, I need to resolve the issue raised at paragraph 4.05 – 4.08 of the Defendant’s address, that the Claimant having consented to the trial on the record under Order 38 Rule  33(1) of the extant Rules of this Court, the Claimant is bound by the implication of the said rule, that all documents tendered from the Bar by the Claimant which were not frontloaded are of no evidential value in this case, that parties are only bound by documents as frontloaded and that the documents tendered from the Bar can at best be said to have been dumped on this Court on the authority of  TERAB V. LAWAN (supra). 

The Claimant’s reaction in this regard is that that the case of TERAB is a rule of practice while Order 38 Rule 33(1) is a subsidiary only  applicable to this Court to enable it dispose cases faster as most of the cases are based on documentary evidence, that the Defendant consented to the adoption of this procedure on February 23, 2022 and that it is Law that once a party consents to an act, he cannot later be heard to complain or question the legality of the process or procedure and that the Defendant is estopped by conduct and by consent from objecting to a procedure he has clearly consented to.

Now, The National Industrial Court of Nigeria is specialized Court and it is enjoined by the Act establishing it, the  NICA 2006 under section 12(1) to regulate its procedure and proceedings as it thinks fit and by section 36(1)(c),  the President of the Court is empowered to make rules of court  for carrying into effect the provisions of the Act and in particular for regulating the procedure in respect of any matter in which the Court has and may exercise original or appellate jurisdiction under the Act. It is pursuant to this enabling power that the NICN (Civil procedure) Rules 2017 was made by the President of the Court.

Trial on Record is a case management technique, it is novel and unique to this Court, It is one of the speedy devices which have earned the Court its pride of place in delivering efficiently and effectively the desired result – that is, justice.     Order 38 Rule 33 provides:

(1)                      In any proceeding before the Court, parties may by consent at the close of pleadings agree to a trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination.

(2)                    Where parties agree to a trial on records, Written Addresses shall be filed starting with the Claimant on the basis of the document on record.

(3)                    The Written Address which shall be in the format provided in rule 2 of Order 45 of these Rules shall be served first on the defendant in compliance with the provisions of rule 20 of this Order.

The essence of this provision is that parties may agree to have their matters determined strictly on the strength of their pleadings and the frontloaded documents and exhibits without the need for oral testimony, cross examination and re-examination as the case may be. Thus, upon conclusion of pleadings, parties simply file their respective final addresses, adopt same and the Court adjourns the matter for judgment. Indeed, trial on record offers parties unique prospect of quick, effective and efficient settlement of labour and employment disputes especially where facts in issue are very simple, straight forward and not contentious. This procedure if effectively utilized by parties is far richer in advantages than the regular Court procedures. Time is not wasted whilst the cost is nothing at all. The adoption of this wonderful innovation by litigants guarantees fast-tracks justice. It flows from the foregoing that before the Court can adopt trial on record procedure, parties must have freely consented and applied for same.

At the proceedings conducted on February 23, 2022, the parties herein opted freely for the adoption of this procedure. The Defendant now backtracked and argued that documents were tendered from the Bar. I do not know what the Defendant meant by that assertion. As it stands, parties dispensed with cross-examination of the witness and elected to address the Court on the basis of the documents frontloaded. No document was tendered from the Bar, the argument of the said Counsel to the Defendant is therefore out of place and the case of TERAB V LAWAL heavily relied upon by the Learned Counsel is not applicable to the facts and circumstances of the case. The list of documents frontloaded is attached to the originating processes in this suit, they are the same process upon which the learned Counsel to the Claimant relied in making his argument in the written address. It is therefore too late in the day for the Defendant to import into Order 38 Rule 33 what is clearly excluded from the application of the said order. This been the case, the argument of learned Counsel to the Defendant at paragraph 4 is discountenanced. I so old.

Now to the merit of the matter. The position of the law is notorious and has come to stay from time immemorial that in civil proceedings of which this suit is a specie by virtue of the provisions of Section 136 (1) & (2) of the Evidence Act, 2011, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other and this burden of proof is legally sufficiently discharged on the balance of probabilities in civil proceedings. Flowing from the foregoing, civil cases are decided on preponderance of evidence where parties testified before the trial court and called witnesses, the trial court is enjoined to set up an imaginary judicial scale on which it should place the pieces of evidence adduced by the parties on both side in order to weigh the evidence, not however by the number of witnesses called by parties but by the quality and credibility of pieces of evidence to see which side preponderates. This trite position of the law is littered with plethora of judicial decisions too many to start citing but suffice to mention the decision of the infallible court, as follows: Daudo v NNPC & Ors (1998) LPELR – 927 (SC), Mogaji & Ors v Odofin & Ors (1978) 4 SC 91 at 94, Lewis & Peat Nig Ltd v Akhimien (1976) 7 SC 157, Sakati v Bako & Anor (2015) LPELR – 24739 (SC). This position was followed and adopted by the penultimate court in the case of Kuburi Int’l Trading Coy Ltd v Bulama Musti & Anor (2018) LPELR – 44004 (CA) where the court held thus:

“In civil case of which this instant case is a specie, the burden of proving the existence or nonexistence of a fact lies on the party against whom the judgment would be given if no evidence were produced on either side, regard being had to any prescription… if such a party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and successively, until the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the Plaintiff who brought the action, though not invariable so. There are times when the burden is on the Defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof.”

In Adamu v Nigerian Airforce (2022) 5 NWLR (Pt 1822) 159 (SC) at 182, the Supreme Court held that: “A defendant need not prove anything if the Plaintiff has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. Where the Plaintiff fails to prove his case as required by the law, it shall be dismissed.” See also, Umera v NRC (2022) 10 NWLR (Pt 1838) 349 (SC) 387 paras G – H.

In line with the above established principles of law of evidence, the law places the duty on whoever alleges that termination of his employment is unlawful or wrongful to prove before the court the fact of the contract of service and the terms and conditions of same. In Aji v CBDA (2015) 16 NWLR (Pt 1486) 554 at 571, paras G – H, 572, paras D – E, the Apex Court held that whether an employee is suing for wrongful dismissal from an employment with statutory flavour or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of his termination or dismissal can be considered by the Court.

It is the contractual terms and conditions that are binding on the parties that the Court will consider vis-à-vis the procedure taken by the employer in the termination of the employment. The Court is not permitted to go outside the terms and conditions of employment agreed between parties in the determination of the rights and obligations of the parties under the contract. In Idoniboye – Obu v NNPC (2003) 2 NWLR (Pt 505) 589 (SC), the apex court in its elucidating pronouncement held thus at page 650, paras C – D:

“A court has no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the document or documents. Parties are bound by the four walls of the contract and the only duty of the Court is to strictly interpret the document that gives rise to the contractual relationship.”

See also, Akinola v Lafarge Africa Plc (2022) 12 NWLR (Pt 1844) 379 (SC)

The Claimant’s appointment no doubt enjoys statutory flavour. An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See Controller General of Customs & Ors V. Gusau (2017) LPGLR-42081 (SC), Imoloame V. W.A.G.C (1992) NWLR (Pt 265) 303, Olaniyan V. Unilag (Supra) and Shatta-Bey Public Service Commission (Supra).

The crux of the Claimants argument is that the Defendant lacks the power to terminate his appointment which enjoys statutory flavour on the ground of service no longer required by given to the Claimant three months’ notice or payment in lieu thereof. The fulcrum of the Defendant’s argument is that on the authority of the case of Olaniyam V. Unilag (Supra), irrespective of the statutory flavour in any contract of employment, employment can still be terminated upon payment of salary in lieu of notice in line with the contract of employment.

Now, the law is trite that the only way to effectively terminate a contract with statutory flavour is to adhere strictly to the procedure laid down in the statute. See Bamgboye V Unilorin (1999) 10 NWLR (Pt 622) 290 and Lange V FBN (2010) LPELR-1793 (SC).

 

The Claimant’s appointment no doubt, is governed by Exhibits C1, C2, C19 and the Federal University of Technology Act 2004. The duty of this Court therefore is to examine those exhibits, ascertain the intention of the parties herein and give effect to it.

Exhibit C1 is the Claimants offer of permanent appointment dated November 21st, 1995; paragraph 3 thereof provides thus:

‘‘The Appointment shall be for two/three years in the first instance. It may be extended for specific period or confirmed to retiring age at the discretion of the University Council. It may however, be terminated at any time by giving three months’ notice in writing or payment of salary in lieu by either side”.

At paragraph 5, it states among other things thus:

‘‘I enclosed herewith two copies each of Medical Report Forms and Memorandum of Appointment.’’

Exhibit C2 is the Memorandum of Appointment dated December 8, 1995; it states at paragraph 9 thus:

‘‘subject to paragraph 10 below, an appointment may be terminated before its due date of expiry as follows:

a.      By the Council in accordance with the University Statutes.

b.      By the member of staff giving at least three months’ notice in writing (or payment in lieu) to the Vice Chancellor and letter’s acceptance in writing. Unless otherwise agreed, such notice shall for teaching staff, expire at the end of academic session.

c.      By the vice Chancellor, on behalf of the University for sufficient cause, giving at least three months’ notice (or payment in lieu) to a member of staff on contract appointment or an unconfirmed appointment.

Now, paragraph 10 of Exhibit C2 to which paragraph ‘a’ above is subjected provides thus:

‘‘Should you be convicted of a criminal offense involving moral attitude or by reason of gross misconduct render it impracticable of the Council to continue to employ you, then the period of notice necessary to terminate the appointment shall be at the discretion of the Council.

Exhibit C19 is the Defendant’s staff condition of service for senior staff,

at page 18, Paragraph 2.25 it provides that apart from death, an employee’s employment may cease by Resignation, Termination of appointment for misconduct, Retirement from service, Termination on medical grounds, Termination at the expiration of Contract Appointment, Termination on Grounds of Redundancy, Termination on Grounds that service no longer required and Dismissal from service.

For termination on grounds that service is no longer required, it provides thus:

‘‘The University may terminate an employee’s appointment when his services are no longer required after giving him the due notice of three (3) months or paying him three (3) months’ salary in lieu of notice.

For Termination of Appointment for Misconduct, Ex.C19 provides at paragraph 2.25 (b) thus:

Appointment may be terminated for misconduct in accordance with the following provisions: -

(i).      The Appointment of a Senior Member of Staff on tenure may be terminated at any time for reasonable cause by Council on the recommendation of the disciplinary committee of council in accordance with the provision of these regulations.

(ii).     For the purpose of these regulations ‘‘reasonable cause’’ means:

-Conviction for any offence which a Disciplinary Committee of Council considers to be such would seriously prejudice the person convicted and render him unfit in the performance of his duties;

-Gross or persistent neglect of duty or misconduct either in the performance of duty or any other situation.

-Conduct of scandalous or  other  disgraceful nature which the disciplinary committee of Council considers to be such as to render the person concerned unfit to continue to hold his office.

-Failure or inability of the person concerned to discharge the functions of his office or comply with the terms or conditions of service resulting from infirmity of mind or body or any other cause;

-Misrepresentation as to qualification upon application for employment.

 

(iii).    Before terminating an appointment for ‘‘reasonable cause’’ other than from grounds of infirmity of mind or body, the Disciplinary committee of Council shall.

·        Notify member of staff concerned in writing of the grounds on which consideration is being given for the termination of his appointment.

·        Give the member of staff concerned opportunity of replying to the allegations against him.

·        The Disciplinary Committee of Council shall give the member of staff opportunity to appear in person at the meeting at which the case is being considered to defend himself against the allegation.

·        The member of staff concerned may appeal against the disciplinary measures to Council through the Chairman of the council.

Now, section 15 of the Federal Universities of Technology Act, 2004 provides for the removal and discipline of academic, administrative and professional staff; it provides thus:

“15. Removal and discipline of academic, administrative and professional staff:

(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 his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall-

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

(b)        afford him an opportunity of making representations in person on the matter to the Council; and

(c)       if he so requests or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-

(i)        for a joint committee of the Council and the Senate to

investigate the matter and to report on it to the Council; and

(ii)             for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

 

(2) The Vice-Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interests of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of the staff may be suspended from his duties or his appointment may be terminated by the Council; and for the purposes of this subsection

"good cause" means-

(a)  conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b)  any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or

(c)   conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or

(d)   conduct which the Council considers to be such as to constitute failure or in-ability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service; or

(e)  conduct which the Council considers to be generally of such nature as to render the continued appointment or service of the person concerned prejudicial or detrimental to the interest of the University.

(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on half pay and the Council shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to-

(a)        whether to continue such person's suspension and if so on what terms (including the proportion of his emoluments to be paid to him);

(b)        whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;

(c)     whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or

(d)     whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine.

(5) In any case where the Council, pursuant to this section, decides to continue a person's suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.

(6) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.

(7) Nothing in the foregoing provisions of this section shall-

(a)      apply to any directive given by the Visitor in consequence of any visitation; or

(b)       prevent the Council from making regulations for the discipline of other categories of workers of the University as may be prescribed.”

Now, a community reading of all the relevant parts of the Exhibits  and the Act establishing the Defendant reproduced above reveals that the Claimants appointment started with exhibit C1 which employed the Claimant as Graduate Assistant which by the contents of its paragraph 3  was for two/three years in the 1st instance but may be extended or confirmed to retiring age at the description of the Defendant’s Counsel. So, when paragraph 3 says the appointment may be terminated by either party at any time by giving three months’ notice in writing or payment in lieu, it means, to my understanding, during the probationary period before the said appointment is confirmed to retiring age. My view is reinforced by the provision of paragraph a (c) of exhibit C2 which vested in the Defendant’s VC the power to terminate appointment of a contract staff or an unconfirmed staff upon giving the months’ notice or payment in lieu thereof to such a staff.

A combine reading of the relevant paragraphs of Exhibits C1 and C2 clearly shows that termination by giving notice or payment in lieu is only contemplated in the above situation (probationary period or contract appointment)  except where the staff concerned elects to leave Defendant’s employment in which case she/he can give notice or make payment in lieu which notice, unless otherwise agreed, shall expire at the end of the academic session.

It follows therefore that except where a staff is convicted of criminal offense by reason of gross misconduct in which case the Council is vested with discretion to determine the length of notice, termination of appointment can only be done by the council in accordance with the Defendant’s statutes.

It follows therefore from the above that the Claimant’s appointment having not been terminated before it was confirmed, can only be terminated by recourse of the procedure and on the grounds provided in the University statute. It is the law that in public employment (such as the instant one) where an employee is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should in the interest of justice, be a presumption that the employment cannot be terminated by more notice, but should be terminated only for misconduct or other special reasons. See Olaniyan v. Unilag (Supra). Once an employee (like the claimant herein) enjoys a permanent and pensionable statue, his appointment cannot be terminated by more notice; doing so will deprive the said employee of all the pension and other rights attached by the express terms of the contract. See Olaniyam V. Unilag (Supra). It is therefore my humble view that the argument of the Learned Counsel to the Defendant at paragraph 4.11 of the written address to the effect that irrespective of the statutory flavour in any contract of employment, employment can still be terminated upon payment of salary in lieu of notice in line with the employment contract does not represent the true position of the law. I find and I so hold.

The Defendant’s Counsel contended that section 15 of the Federal University of Technology Act is not applicable in this case as the termination of the Claimant’s case is not of the ground of misconduct but was for ‘‘service no longer required’’. That the minutes of the meeting of the Defendant’s Council; Exhibit C15, which considered a report of a committee that met and interacted with the Claimant on account of some allegations is immaterial as the minute cannot be exhaustive on the decisions reached by the Defendant’s counsel, that the disciplinary procedure initiated against the Claimant was never concluded, that there is no law that makes it mandatory that every disciplinary procedure must be concluded before the power to terminate an appointment can be exercised under  the contract of employment and that since the termination of the Claimant’s employment was not on ground of misconduct, there was no need to accord him fair hearing.

The reaction of the Learned Counsel to the Claimant in this regard is that it is of no moment that the Defendant decided to ignore the allegations of sexual harassment and intimidation made against Claimant while terminating the appointment, that same is an exercise in futility which cannot absolve the Defendant from complying with the provisions of section 15 of the F .U. T Act, that the Defendants by implication have admitted paragraphs 1 -12 of the statement of facts in its statement of defence by the Defendant’s failure to traverse same.

Now, Exhibit C15 is the Claimants letter of termination of appointment; it is addressed to the Claimant and is dated March, 11, 2022, its first paragraph reads thus:

This is to informed you that the University Governing Council at its 96th meeting held on Thursday 27th February, 2020 resolved among other things that your service is no longer required by the University and in line with paragraph ‘3’ of your letter of appointment, council approved the termination of your appointment with the University with effect from 27th of February, 2020…….

 

 

Sign

Halima M. Bala, FMC

REGISTRAR

 

The only reason given in the above letter is that the Claimant’s service is no longer required which is the usual reason given by employers in while terminating employment in master and servant relationship.

Now, where reasons for termination of employment contract is not expressly stated in the letter of termination as in the instant case, a Court is permitted to look at the surrounding circumstances of the case to ascertain the reason for the termination. The starting point in this case is the pleading filed and exchanged by the parties see paragraphs 6-13 and 15 of the Claimant’s Statement of Facts, the  paragraphs where impliedly admitted by the Defendant in that they have not been denied by the Defendant in the statement of defence. It is the law, as rightly submitted by the learned Counsel to the Claimant, that every averment in a statement of claim (statement of facts in our own case) must be specifically denied in the Defendant in the statement of defence otherwise it will be deemed adulted. The Defendant who fails to traverse or join issues with the Claimant on his averments is deemed to admit the facts pleaded against it. See Mekunye V Imokhude (2019) LPGLR-48996 (SC) & Orianzi V AG Rivers state & Ors (2017) LEPGR-41737 (SC).

            Now, the facts contained in the averment above constitute all that transpired between the Claimant, his friend and the Defendant’s management over allegations of intimidation and sexual harassment which I take has been admitted by the Defendant.

            Exhibit C4 is the complaint made to the Dean, school of Agric and Agricultural Technology by one Chabiya Ati Balton, a PhD student against the Claimant and one Dr Toma Mbahi Fulani for victimization against the complaint, it is dated July 25th 2018. Upon receipt of the complaint, the Dean set up a committee to investigate same. The Claimant, his friend and the Complainant were all invited and the appeared before the committee.

Exhibit C6 is the committees report with a covering letter from the Dean to the Defendant’s vice Chancellor.

Exhibit C8 is an invitation from the Chairman of the committee set up to investigate a case of sexual harassment to the Claimant. Exhibit C9 is the Claimant’s response to allegation of victimization and sexual harassment.

Exhibit C10 is the interim report of the committee on sexual harassment and victimization addressed to the Defendant’s Vice Chancellor while Exhibit C11 is the final report of the committee on victimization and sexual harassment submitted to the Vice Chancellor of the Defendant. Exhibit C12a and C12b are letters of suspension issued to the Claimant dated December 17, 2019 and December 20, 2019 respectively. In the 1st one, the Claimant was suspended by the Defendant’s management committee acting on what it called a report of the staff Disciplinary committee on alleged sexual harassment and victimization in which the alleged acts were termed as misconduct consequent upon which the Claimant was suspended pursuant to section 1.3.4 of exhibit C19; the defendant’s staff condition of service. In the 2nd one, the suspension was made by the Vice Chancellor acting on the said committee report pursuant to the powers conferred in him.

Exhibit C14 is the minute of meeting of the Defendants Council held on Thursday, February 27th 2020 which at page 11 paragraph 2020/96/11 is headed:

DISCIPLINARY ACTION AGAINST STAFF INDICTED FOR GROSS MISCONDUCT

It reads thus;

Council considered and deliberated on report of staff Disciplinary Committee on alleged cases of misconducts levelled against two (2) academic staff of Department of Animal Science and Range Management, School of Agriculture and Agricultural Technology (SAAT).

Thereafter, Council find the staff wanting on the alleged act of misconducts and terminated their appointments with the University in line with section 8.1 (iii)(f) of condition of service for senior staff of the University as follows:

1 – Dr. Yakubu Bobboi (SP 603)

Termination of appointment for victimizing Miss. C.A Bathon, a postgraduate student of Department Animal Science and Range Management.

 2 – Dr. Toma Fulani Mbahi (SP 463)

Termination of appointment for sexually harassing Miss. C.A Bathon, a postgraduate student of the Department of Animal Science and range management.

Now, the resolution of the Council above was communicated to the Claimant vide exhibit C15 without stating the reasons above. It is therefore clear from the foregoing that the termination of the Claimant’s appointment was on account of misconduct, I find and I so hold.

The Defendant cunningly sought to hide under Ex C1 paragraph 3 to terminate the Claimant’s appointment by payment in lieu of notice which payment was made belatedly. The setting up of the committee by the Dean, the setting of the subsequent committee by the Vice Chancellor are all but an aberration to the provisions of section 15 of the F.U.T Act which vested the power of terminating the Claimant’s appointment squarely on the Defendant’s Council.

No committee was setup by the Defendant Council to investigate the Claimant.  The council appeared to have merely rubberstamped what the Dean and the Vice Chancellor did which is a nullity. The council cannot flyover the procedure provided under section 15 of F.U. T Act in terminating the Claimant’s employment. The law in this regard is that where a statute clearly provided for the employment and discipline including an employee’s retirement and dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconstant with what the statute prescribed is null and void. See Comptroller General of Customs & Ors V. Gusau (2017) LPGLR-42081 (SC) and LP Iderima V. Rivers State Civil Service Commission LPGLR-1420 (SC).

In Chief Tamunoemi Idoniboye-Obu V NNPC (2003) LPGLR-1426 (SC) the supreme Court held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavour and the attendant protection, the rules must be established to be:

1.      Regarded as mandatory

2.      Directly applicable to him or persons of his cadre

3.      Intended for the protection of the employment

4.      Breached in the cause of determining the employment

In the instant case, the Claimant, as rightly submitted by the learned counsel, is an Associate Professor on a tenured, permanent and pensionable appointment with the Defendant, this being the case, I find that he has thereby met the foregoing requirements and I so hold.

In final analysis, I find that the Claimant’s case succeeds in its entirely, the termination of the Claimant’s appointment is hereby nullified and is accordingly set aside. All the reliefs prayed by the Claimant in this case are hereby granted.

Judgement is entered accordingly. I make no order for cost.

 

                                 ………………………………………………

 

                             HON. JUSTICE MUSTAPHA TIJJANI