IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE KADUNA JUDICIAL DIVISION
HOLDEN
AT KADUNA
ON
TUESDAY 21ST DAY OF JANUARY 2020
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT
NO: NICN/KD/08/2017
BETWEEN:
PROF. OLUSOLA O. OMOKORE………………CLAIMANT
AND
1. THE HON. MINISTER OF EDUCATION…………...}
2. FEDERAL UNIVERSITY DUTSINMA (FUDMA)…..}
3. COUNCIL, FUDMA……………………………………}
4. THE VICE CHANCELLOR, FUDMA………………..}
5. PROF. HARUNA ABDU KAITA……………………..}
6. THE REGISTRAR, FUDMA…………………………..}
7. THE LIBRARIAN, FUDMA…………………………..}
8. THE BURSAR, FUDMA………………………............}
………………………………………………………DEFENDANTS
J U D G E M E N T
The Claimant
commenced this action vide Complaint and Statement of Facts filed in this Court on 21/02/2017, and claimed against
the Defendants, the reliefs set out as follows:
1. A DECLARATION that the fact
finding Committee on allegations against some Federal Tertiary Institutions
sent to Federal University Dutsinma, Katsina State failed the fundamental right
test of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as
amended) not having been constituted in a manner that would ensure its
independence, and impartiality.
2. A Declaration that the
Claimant was not granted the right to fair hearing when the 4th, 5th
& 6th Respondents implemented the recommendation of the
fact finding committee without first referring the said recommendations to the
2nd Respondents full and duly convened Council for adoption and
subsequent referral to the 2nd Respondent’s Senior Staff
Disciplinary Committee for a fair hearing.
3. A declaration that the
appointment of Prof Haruna Abdu Kaita as Vice-Chancellor of Federal University
Dutsinma is contrary to law and is therefore void, same having been made in
order to use him as a tool to victimize and terminate complainant’s appointment
with 2nd Defendant.
4. A Declaration that the
appointment and composition of the Principal Officers of Federal University
Dutsinma to wit: the Vice Chancellor, the Registrar, the Librarian and the Bursar
are in violation of the Federal character principles and same were made and
used to victimize Claimant by terminating her appointment with 2nd Defendant.
5. An order setting aside the recommendations
of the fact finding committee on allegations against some Federal Tertiary
Institutions relating to Federal University, Dutsinma forwarded to the
Vice-Chancellor Federal University, Dutsinma by MallamAdamuAdamu, Hon. Minister
of Education vide letter reference FME/PSE/TE/1038/C.1/1/8 dated 9th
September, 2016, as it relates to Complainant, same having been made in
violation of Section 36 of the Constitution of the Federal Republic of Nigeria
1999 (as amended).
6. An Order setting aside the
termination of complainant’s appointment Reference No. FUDMA/REG/PS447/1 dated
28th October, 2016 for being ultra vires, null and void.
7. An Order re-instating
Complainant back to her job as Professor of English in the 2nd Defendant
on CONUASS 7 Step 7 with effect from 28th October, 2016 with arrears
of salary, all increments, allowances and privileges attached to her rank as
Professor.
8. An Order compelling the 2nd,
4th, 5th and 6th Defendants to pay to Claimant
her sitting allowance of Sixty Three Thousand Five Hundred Naira being her
sitting allowance as council member of 2nd and 3rd Defendant
for meeting held and attended in October, 2015.
9. AN ORDER setting aside the
appointment of Prof. Haruna Kaita as Vice Chancellor of Federal University
Dutsinma being contrary to the statutorily prescribed procedure and same having
been made and used to victimize and terminate complainant’s appointment.
10.
AN
ORDER setting aside the appointment and composition of the Principal Officers
of Federal University Dutsinma to wit: the Vice Chancellor, the Registrar, the
Librarian and the Bursar, same being in violation of the Federal character
principles and same having been used to victimize claimant by terminating her
appointment with 2nd Defendant.
11.
The
cost of this action.
2. The Defendants,
although were represented by learned counsel at various times in the course of
the proceedings, as borne by the records; did not however file any defence to
the action. The processes filed on behalf of the Defendants were Notices of Preliminary Objection,
filed on 24/04/2017 and 25/04/2017, but which were
dismissed by the Court on 05/02/2018.
Thereafter, the
Defendants, rather than filing a defence to the suit, proposed a possibility of
an out of Court settlement. However, the case proceeded to trial after the
learned counsel for the Claimant reported that settlement had failed.
3. At the plenary trial, the Claimant
testified in person by adopting her written depositions. She further
successfully tendered seven (7) documents in evidence; whilst the
Defendants’ learned counsel elected not to cross-examine her.
The Defendants’ learned
counsel, from that point onwards, prayed for several adjournments to enable the
Defendants file their Statement of Defence and to open their defence. However,
in spite of the several adjournments granted at their instance, they failed to
file their defence. The learned Defendants’ counsel however, did not withdraw
his appearance for the Defendants and participated until the case was adjourned
for adoption of final written addresses.
4. Upon conclusion of
plenary trial, only the Claimant, through her learned counsel, filed a written
final address in the suit.
In the said address,
settled by A. A. Akume, Esq., of counsel, the Claimant raised two issues
as having arisen for determination in this suit namely:
a. Whether
or not the Claimant is entitled to judgement based on the strength of her case
alone.
b. Whether or not the Defendants by their
failure to file any defence have not by so doing conceded to the Claimant’s
claim.
5. Flowing from my
understanding of the Claimant’s claim and the relevant evidence adduced at the
trial, including the documents tendered as exhibits, the focal issue that call
for resolution in this suit without prejudice to the issues raised by the
Claimant can be succinctly reframed as follows:
“Whether or not the Claimant established her claim of
unlawful termination by the Defendants; and if so, whether she is entitled to
her claims in this suit”.
In determining this
sole issue, it is pertinent to restate, as a preliminary point, the clear
position of the law, as in circumstances of the present case, where a Defendant refuses
to adduce any evidence in his defence to be placed on the imaginary scale of
justice, the trial Court is entitled to proceed to find for the Claimant in the
event that the evidence adduced by him has satisfactorily established his claim
as endorsed.
In the circumstances
therefore, the task the Court is to undertake now is to examine the evidence on
record as adduced by the Claimant; and the law applicable thereto, in order to
determine whether or not such evidence has satisfied the requirement of proof
imposed by the provisions of Sections 131 and 132 of the Evidence Act (as amended), to substantiate her claim as
endorsed.
6. To establish that
there was a statutory contract of employment, the Claimant tendered in evidence
her letter of offer of appointment as Associate Professor in English Department
dated 15/08/2013 – Exhibit C1 and her letter of appointment or promotion as
a Professor of English dated 29/10/2013 - Exhibit C2. The Claimant
further testified that her appointment was regularized through a letter dated
01/04/2014 tendered in evidence as Exhibit C3. On the basis of
the pleadings and evidence led at the trial, it is therefore undisputed that
the Claimant’s employment is statutory employment.
7. The Claimant
testified further that she was one of the members of staff that was
investigated by a fact finding committee that was inaugurated by the 1st
Defendant on 10th December, 2015 to investigate some petitions
against the principal officers and some members of staff of the 2nd
Defendant. The Claimant testified that based on the concerns of some of the
members of staff on the composition of the panel of the fact finding committee,
they instructed their solicitors to petition the Executive Secretary of
National Human Right Commission but that the 1st Defendant ignored
the petition that was written by their solicitors and further directed that the
panel proceed to the 2nd Defendant to conduct the fact finding
exercise. The petition written by the Claimant’s solicitors and the
recommendations of the fact finding committee were tendered in evidence as Exhibit
C6 and Exhibit C4 respectively.
8. The Claimant
further testified that being a senior staff of the 2nd Defendant,
only the Council of the 2nd Defendant can discipline her in line
with the disciplinary procedure prescribed in the 2nd Defendant’s
enabling statute (Act).
The Claimant also
testified that the report of the Senior Staff Disciplinary Committee was not
approved by the Council as the Council was not convened as prescribed by the
enabling statute. The Claimant also testified that the Pro-Chancellor, the
Chairman of Council along with the 4th, 5th, 6th,
7th and 8th Defendants implemented the Committee’s report
and terminated her appointment without according her fair hearing or without
regard for the prescribed due process. The letter of termination of appointment dated
28/10/2016 was tendered in evidence as Exhibit C5.
Based on the above evidence, the
Claimant’s case was closed as the learned Defendants’ counsel elected not to
cross examine her.
9. Now, from the totality of the
evidence adduced by the Claimant, could it be said that she has satisfactorily
established that her appointment was unlawfully terminated by the Defendants as
alleged to entitle her to the reliefs she claimed?
It has been firmly established that when
an employee complains that his or her employment has been wrongfully or
unlawfully terminated, that employee has the onus:-
(a) To place before the Court the terms
and conditions of the contract of employment and
(b) To prove in what manner the said
terms were breached by the employer.
The test of whether the termination of
an employee is proper or unlawful is, whether the procedure adopted in
effecting the termination conforms to the conditions laid down in the terms of
the employment of the aggrieved employee. To be unlawful, there must be proved
that there is a departure from the prescribed procedure or that in applying the
rule there is a violation of the rule of natural justice so as to render the
formal compliance a travesty.
See Iwuchukwu
Vs Nwizu [1994] 7 NWLR (Pt 357) 379 at 412; Nigerian Gas Co Ltd Vs
Dudusola [2005] 18 NWLR (957) 292; WAEC & Ors Vs Ikang [2001]
LPELR 5098
10. In the present case, the Claimant’s
case is that the Defendants violated the disciplinary procedure of the 2nd
Defendant enabling Law 2015 and the Conditions of Service of Senior Staff of the
2nd Defendant. This was expressly stated in as deposed in paragraphs 35, 37, 38, 40 and 44 of the Witness
Statement on Oath. The effect of these assertions is that her
employment has statutory flavor and cannot be determined otherwise than as
provided for by the terms and conditions of her appointment. Exhibits C1, C2
and C3 contains the terms and conditions of the Claimant’s appointment with the
2nd Defendant.
11. I have taken liberty to reproduce
the relevant portions of the said exhibits.
Exhibit
C1
3. Note that
the temporary appointment is for a period of one year, effective from the date
of assumption of duty, and is subject to the provisions of the University law
and statutes made thereunder, and to the regulations of the Conditions of
Service for senior staff made by the Governing Council from time to time, and specifically
provided for in this letter of appointment. The temporary appointment is made
to enable you to start work in the University as soon as possible pending when
arrangements for regularization of appointment will be completed. The period of
the temporary appointment will form part of your service period when your
appointment will be regularized.
Exhibit
C3 – Letter of regularization of appointment
from temporary to provisional dated 01/04/2014
Sequel
to the regularization interview conducted for your appointment on 23rd
September, 2013; I am pleased to convey the Vice Chancellor’s approval for your
provisional appointment as Professor with effect from the date you assumed
duty.
2. The
Provisional appointment is subject to confirmation to retirement on
satisfactory performance after a minimum period of two (2) years.
3. The
appointment can be terminated by either party giving three months’ salary in
lieu of notice.
4. All other
conditions of your appointment remain the same.
12. The Claimant’s grouse
is that she was never given an opportunity to testify at the panel and that she
was not given the opportunity to hear the testimonies of the witnesses invited
by the Committee. The Claimant further contended that the Council did not
follow the procedure for discipline (termination) of its members of staff as stipulated
by the University Act as the Council was not convened to approve the
recommendation of the fact finding committee before her appointment was
terminated. She further alleged that the 1st Defendant appointed the
Pro Chancellor and Chairman of the Governing Council of the 2nd
Defendant without regard to the Federal Character Law and also alleged that the
appointment of the 4th, 5th, 6th, 7th
and 8th Defendants is illegal and irregular and therefore void.
See:
UBA Plc Vs Sani Abacha Foundation for Peace and Unity [2004] 3 NWLR
(Pt 861) 510; FBN Ltd Vs Moba Farms Ltd [2005] 8 NWLR (Pt 928) 92; Berende
Vs Usman [2005] 14 NWLR (Pt 944) 1; Cameroon Airlines Vs
Otutuizu [2011] LPELR 827.
It
therefore goes without saying that any pleaded fact that was not proved or
supported by evidence is deemed abandoned.
In the instant case, the
Claimant challenged the appointment of the principal officers of the 2nd
Defendant namely: Prof Haruna Abdu Kaita as Vice Chancellor, the Registrar, the
Librarian and the Bursar and she also claimed for her sitting allowance as
Council member of the 2nd Defendant but there was no scintilla of
evidence adduced in support of these claims. The
averments by the Claimant in the absence without evidence are deemed abandoned.
And I so hold.
14. Now, by the provision of Section
122 (2) of the Evidence Act 2011, the Courts are enjoined to take judicial
notice of all laws or enactments any
subsidiary legislation made under them having the force of law now or
previously in force in any part of Nigeria.
As stated in Clause 3 of Exhibit C3, the
Claimant has established that her contract of employment is governed by the
University law that is, the Federal University of Dutsinma (Establishment) Act
2015 – the University Act.
The learned counsel
for the Claimant submitted in his written address that the Claimant cannot be
removed from her employment unless the terms and conditions in Section
17 of the University Act are complied with.
15. It is significant
to make reference to the material provision of the Section 17 of the University
Act which I have taken liberty to reproduce as follows:
Section 17
“(1) If it appears to the
Council that there are reasons for believing that any person employed as a
member of the academic, administrative or professional staff of the University
other than the Vice-Chancellor, should be removed from office or on grounds of
misconduct or inability to perform the functions of his office, the Council
shall:
(a)
give notice of
those reasons to the person in question;
(b)
Afford such
person an opportunity of making representation in person on the matter to the
Council; and
(c) take a decision
to terminate or not to terminate the appointment
(2) If the affected staff or any three members of the
Council so request within the period of one month from the date of the receipt
of the notice of the Council’s decision, the Council shall make arrangements
for -
i)
a joint committee of the Council and the
Senate to review the matter and to report on it to the Council;
ii)
for the person
in question to be afforded the opportunity of appearing before and being heard
by an investigating committee with respect to the matter;
and if the Council, after considering the
report of the investigating committee, is satisfied that the person in question
should be removed, the Council may so remove him by an instrument in
writing signed on the directions of the Council. (Underlining for
emphasis)
The effect of the
above provision of the University Act is that, the Claimant cannot be validly
removed from the employment unless the provisions provided in the statute for
removing her as an academic staff is followed strictly. See Olaniyan V University of
Lagos [1985] 2 NWLR Pt 9 Pg 599; Okwusidi V Ladoke Akintola University
[2012] All FWLR Pt. 632 Pg 1774 at 1786.
16. The Claimant’s
testimony is that her employment was terminated on 28th October,
2016 through Exhibit C5.
The relevant portion
of the said exhibit is reproduced as follows:
“This is to inform you that the Governing Council of
the Federal University, Dutsin-Ma is in receipt of the Federal Government White
Paper on the recommendations of the fact finding committee on the
complaints/petitions against some Federal Tertiary Institutions. It is
forwarded vide the Federal Ministry of Education’s letter No.
FME/PSE/TE/1038/C.1/1/8 dated 9th September, 2016.
2. The White Paper indicated that prior to your
current appointment with Federal University, Dutsin-Ma, your appointment with
Ahmadu Bello University, Zaria was terminated on grounds of misconduct.
3. In view of the foregoing, the Federal Government
has directed that your current appointment with Federal University, Dutsin-Ma
was wrong and should be terminated with immediate effect.
4. Accordingly, I write to convey to you the
directives of the Federal Government White Paper that your appointment is terminated
with effect from 28th October, 2016” (Underlining for emphasis).
17. The content of
Exhibit C5 is very clear as to the circumstances of the termination of the
Claimant’s employment. Her employment was terminated on the basis of the
Federal Government White Paper on the recommendations of the fact finding
committee. The Claimant had contended that she was not given any hearing by
Council and that the Governing Council which is empowered to approve the
termination of her employment was not constituted or in place at the time the
letter terminating her employment was issued to her.
I agree with the
learned Claimant’s counsel that the procedure as stipulated by the University
Act was not followed before her employment was terminated by the Defendants. The Claimant’s employment cannot be terminated outside the laid
down procedures contained in the said law.
In Oloruntoba-Oju Vs Abdul-Raheem (supra) at 46 to 47, the Supreme Court held-
“When an office or employment has a
statutory flavor in the sense that its condition of service are provided for by
the statute or regulations made there under, any person in that office or
employment enjoys a special status over and above the ordinary master and
servant relationship. In the matter of discipline of such an employee, the
procedure laid down by such statute must be fully complied with. If not, any
decision affecting the right or reputation or tenure of office of that employee
will be declared null and void. When a statute has conferred on anybody the
power to make decisions affecting an individual, the court will not only
require the procedure prescribed by the statue to be followed, but will readily
imply so much and no more to be introduced by way of additional procedural
safeguards as will ensure the attainment of fairness. Where contract of service
enjoys statutory protection, the latter can only be terminated in the manner
prescribed by the governing statutory provisions, a breach of which renders the
act ultra vires and void. The contract cannot be discharged on the agreement of
the parties without compliance with the enabling statutory provisions. There is
a presumption that when the legislature confers a power on an authority to make
a determination, it intends that the power shall be exercised judicially in
accordance with the rules of natural justice.”
The same
principles are fully applicable to the Claimant’s appointment. I am quite convinced that the termination of the
Claimant’s employment did not follow the statutory procedure. 18. The
unchallenged evidence before the Court is that the Council did not sit to
approve the recommendation of termination of the Claimant’s appointment by the
fact finding committee set up by the Federal Government. Furthermore,
recommendation by a fact finding committee of the Federal Government is not one
of the grounds for taking disciplinary measures against the staff of the 2nd
Defendant. In other words, the Defendants
lack the vires/power to terminate the Claimant‘s employment without the
approval of the Council.
I am satisfied that
the Claimant has proved her case. It is my further finding that the termination
of the Claimant’s employment was improper, unlawful, null and void. And I so hold.
19. It is trite that
where there is an improper removal of an employee from an employment protected
by statute, the consequence is that the employee has not been removed from
office. In other words, once dismissal or termination of employment is declared
null and void, there is nothing legally standing in the way of the employee
from having his or her job back with its attendant rights, benefits and
privileges.
See Visitor, Imo State University & Ors V
Prof Okonkwo & Ors 2014 LPELR; Kwara
Polytechnic Ilorin V Oyebanji [2008] All FWLR (Pt 447) 141 at 199; Olaniyan
V University of Lagos (supra).
In such a situation,
the Court has the power to set aside the unlawful termination and order the
reinstatement of the employee.
In the circumstance
of this case, having found that the termination of the Claimant’s employment was
unlawful, the Claimant is entitled to a consequential relief of reinstatement
and payment of her outstanding salary from the time of the unlawful termination
of her employment. See Omidiora Vs
Federal Civil Service Commission [2008]
All FWLR (Pt 415) 1807.
20. In the final analysis, the judgment
of the Court is that the termination of the
Claimant’s employment was unlawful and the Claimant’s case succeeds in part.
For avoidance of doubts and abundance of
clarity, judgment is hereby entered in favour of the Claimant upon the
following terms:
1. It is hereby declared that the termination of the Claimant’s
employment is unlawful, illegal, null and void as it was done in violation of
the statute and regulation guiding the Claimant’s contract of employment with
the 2nd Defendant.
Consequently, the recommendation of the fact finding
committee on allegations against some Federal Tertiary Institutions and the
letter of termination of the Claimant’s appointment dated 28th
October, 2016 are hereby set aside.
2. The Defendants are hereby ordered to re-instate the Claimant
forthwith to her employment in the 2nd Defendant. The Defendants are
further ordered to place the Claimant in the appropriate position and level she
ought to be at the moment in the employment of the 2nd Defendant had
her employment not been unlawfully terminated.
3. The Defendants shall pay the Claimant all her outstanding wages,
salaries, allowances and other emoluments accruing to her from 28th
October, 2016 being the date of the unlawful termination of her employment, up
to the date of this judgment within two (2) months from this judgement.
4. I further award cost of N250,000.00 against the Defendants.
SINMISOLA O. ADENIYI
(Presiding Judge)
21/01/2020
Legal
representation:
A.A Akume Esq. with S. A. Apeniga for Claimant
H. B. Akut for 2nd – 5th Defendants
1st
Defendant not represented