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/09/2017
BETWEEN:
SADIQ MOMOH JIMOH…………………….……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 having
accepted Claimant’s voluntary resignation on 13th July 2016, the
Claimant was no longer a staff of the 2nd Respondent for them (sic –
it) to terminate his appointment on 28th October, 2016.
4. A Declaration that the 4th
& 5th Respondents’ appointment
being statutorily defective is void ab initio and therefore lacks
legitimacy to exercise any disciplinary power over the Complainant as principal
officer (Bursar) of the 2nd Respondent.
5. A Declaration that the
appointment of Prof. Haruna Kaita as Vice – Chancellor of Federal University
Dutsinma is contrary to law and is therefore void.
6. 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, same having been
made in violation of Section 36 of the Constitution of the Federal Republic of
Nigeria 1999 (as amended).
7. An Order setting aside the
letter of termination appointment for gross misconduct with Reference
FUDMA/REG/PSW/004/1/052 dated 28th October, 2016 for being ultra
vires, null and void.
8. AN ORDER setting aside the
appointment of Prof. Haruna Kaita as Vice Chancellor of Federal University
Dutsinma same being contrary to the statutorily prescribed procedure and as a
tool to victimize the Complainant.
9. The cost of this action.
2. It is borne by the
records of the Court that the Defendants were duly served with the originating
and all other processes in the suit. Hearing notices of the scheduled hearing
dates were equally served on them but they elected not to defend even though
they were represented by counsel.
3. At the plenary trial, the Claimant
testified in person by adopting his written depositions on oath. He further
successfully tendered four (4) documents in evidence; whilst the Defendants’
learned counsel elected not to cross-examine him, and as a result of which the
Claimant closed his case.
4. The Court
thereafter ordered parties to file and exchange their written final addresses
as prescribed by the provisions of Order
45 of the Rules of this Court.
Only the Claimant’s
learned counsel, A. A. Akume, Esq., filed his final written address on 08/10/2019, wherein he formulated
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 his 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. In my view,
considering the uncontroverted evidence led on the record, the only issue
arising for determination in this suit could be reframed as follows:
“Whether the termination of the Claimant’s appointment
by the Defendants was not unlawful, having accepted the resignation of the
Claimant’s appointment; and if so, whether the Claimant is entitled to his
claims in this suit.”
In proceeding to
determine this sole issue, I have taken due cognizance of the arguments
canvassed by the Claimant’s learned counsel in his final address; and as I
consider needful in the course of this judgment, I shall make specific
reference to his submissions.
6. As a preliminary
point, it is pertinent to establish the point that even though the Defendants
failed to defend the present suit, the Claimant still has the onerous
responsibility to establish his entitlement to the declaratory reliefs claimed.
This is so in that the law is well settled that a declaratory relief sought in
an action is granted principally upon cogent and satisfactory evidence adduced
by the Claimant, regardless of whether or not the Defendants admitted the claim
or failed to defend the action. In other words, in a claim for declaration, the
burden as well as the onus of proof does not shift from the Claimant to the
Defendant. See Motunwase Vs Sorungbe
[1988] 5 NWLR (Pt 92) 90; Dumez Nigeria Ltd Vs Nwakhoba [2009] All FWLR
(Pt 461) 842.
In the present case
therefore, the failure of the Defendants to defend the action would not
ordinarily relieve the Claimant of the burden placed on him by law to adduce
cogent evidence to establish his declaratory reliefs and other reliefs sought.
7. Essentially, the case of the Claimant
as CW1 is that until his voluntary resignation of his appointment, he was the
former bursar of the 2nd Defendant and was also amongst
the members of staff that were 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
further 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 the 1st Defendant ignored the petition written by
their solicitors and further directed that the panel proceeded to the 2nd
Defendant to conduct the fact finding exercise. The copy of the solicitor’s
petition and the recommendations of the fact finding committee were tendered in
evidence as Exhibit C4 and Exhibit C2 respectively.
8. The Claimant
further testified that being a senior staff of the 2nd Defendant,
only the Council of the 2nd Defendant can discipline him in line
with the disciplinary procedure prescribed in the 2nd Defendant’s
enabling law and condition of service for its senior staff.
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 law and condition of service.
9. The Claimant also
testified that he resigned his appointment as the bursar of the 2nd
Defendant due to the victimization, intimidation and threats he faced from the
5th Defendant and other principal officers who are all indigenes of
Katsina State. He further testified that he received a letter of acceptance of
his resignation. The Claimant also testified that regardless of his resignation,
the Pro-Chancellor, the Chairman of Council along with the 4th, 5th,
6th, 7th and 8th Defendants implemented the
Committee’s report and terminated his appointment without according him fair
hearing or without regard for the prescribed due process.
The Claimant tendered
the letter of acceptance of resignation dated 13/07/2016 and the letter of
termination of appointment as Exhibits
C1 and C2 respectively.
10. From the totality of the evidence
adduced by the Claimant, the kernel of the case of the CW1 centered basically on the termination of his appointment for
gross misconduct after he had duly resigned his appointment.
Now, could it be said that the Claimant
has satisfactorily established that his appointment was unlawfully terminated
by the Defendants as alleged to entitle him to the reliefs he claimed?
It
is now beyond any argument, indeed the law is on a firma terra that in a statutory
employment, as in the instant case going by the reliefs sought, the termination
of the employment of an employee by the employer cannot be unlawful unless it
is in breach of the terms and conditions of employment.
Therefore, an employee who complains that his employment was
unlawfully terminated has the onus to place before the court the terms and
conditions of the contract of employment and to prove the way and manner those
terms were breached by the employer. This principle finds support in a long
line of judicial authorities the likes of Amodu
Vs Amode [1990] 5 NWLR (Pt 150) 356; Iwuchukwu Vs Nwizu [1994] 7
NWLR (Pt 357) 379; Katto Vs CBN [1999] 6 NWLR (Pt 607) 390; Ibama Vs
S.P.D.C. [2005] 17 NWLR (Pt 954) 364.
12. The unchallenged evidence is that
the Claimant was an employee (the bursar) of the 2nd Defendant (his
employer) and that he voluntarily resigned his appointment by giving notice of
resignation. It is also unchallenged that the Claimant’s employment was
governed by statute. The grouse of the Claimant is whether the 2nd
Defendant’s letter of 28th October, 2016 signed by the 6th Defendant
terminating his appointment was not unlawful and void as against the 2nd
Defendant’s earlier letter of 13th July, 2016 accepting the notification of the
resignation of the Claimant’s employment.
13. I
hereby pause to discuss the law relating to notice of resignation. The law is
that a notice of resignation is effective not from the date of the letter, nor
from the date of any purported acceptance, but from the date on which the
letter was received by the employer or his agent. Tendering of a letter of resignation carries with it the right to
leave the service automatically without any benefit subject to his paying any
of his indebtedness to his employer. While giving notice of retirement carries
with it the right to be paid a pension or gratuity; but it does not confer the
right to withdraw from the service immediately and automatically. See: Osu Vs PA.N. Ltd [2001] 13 NWLR (Pt 731)
627; Yesufu Vs Gov of Edo State & Ors [2001] 13 NWLR (Pt 731) 517; Adefemi
Vs Abegunde [2004] 15 NWLR (Pt 895) 1;
WAEC Vs Oshionebo
[2006] LPELR-7739
14. The Claimant’s testimony is that he
voluntarily sent in his letter of resignation and that he received a letter of
acceptance from the 6th Defendant conveying the acceptance of his
resignation by the 2nd Defendant.
The relevant portion of the letter of
acceptance dated 13th July, 2016 and tendered as Exhibit C1 reads: -
“Sequel
to your letter to the Vice Chancellor dated 8th April, 2016 on the
above subject, I write to convey the acceptance of your notice of resignation
of appointment and secondment to Federal University, Dutsinma.
2.
The acceptance takes effect from 31st July, 2016.
3.
You are expected to handover all University property in your possession.
4.
Please accept the assurance of my best regard and esteem.
This piece of evidence, as I had pointed
out supra, was never contradicted or challenged whatsoever; indeed, the
Claimant was never cross-examined nor was evidence pleaded by the Defendants. I
am of the firm view that Exhibit
C1 is clearly an acceptance of Claimant’s withdrawal from the 2nd Defendant’s
service.
15.
My position is more strengthened by the above cited judicial decisions as well
as the persuasive decision of an India Court in the case of Siri Krishna Vs Prescribed Authority,
Kanpur [1995] (1) LLJ 1060 (ALL HC), where it was held that;
“The voluntary retirement is an act of
an employee and if it is proved and established that the employee concerned had
chosen to give up office of employment of his own accord and free will, the
cessation of his employment and the breaking up the relationship of master and
servant is immediate without calling for an approval of the suo motu action
of the master unless of course, the service conditions required anything to the
contrary.” (Emphasis mine)
On the strength of these judicial
precedents, I am of the firm view that the Claimant had resigned from the
service of his employer from 31st July, 2016 as same was accepted by
the 2nd Defendant’s letter of acceptance, Exhibit C1. I so hold.
16. What remains now is whether the
termination the Claimant’s appointment for misconduct by the 2nd
Defendant was not unlawful having accepted his resignation three months prior
to the issuance of the said letter of termination – Exhibit C3.
By
the legal authorities I had earlier cited and by which I am bound, it is now
without peradventure that the Claimant’s appointment with the 2nd
Defendant came to an end on 31st July, 2016, the effective date as stated in
Exhibit C1.
I
must further hold that the letter of termination of the Claimant by the 2nd
Defendant dated 28th October, 2016 was rather too late in the
circumstance of this case. It has no legal effect, it is an afterthought and
thus declared null and void. I so hold.
17.
Perhaps, it is imperative to further restate the position of law as it relates
to statutory employments. An
employment which is clothed with statutory flavor as in this case must be
terminated in a way and manner prescribed by the relevant statute and any other
manner of termination which is inconsistent with the statute will be null and void
and of no effect . See Ibama Vs SPDC
(Nig) Ltd (supra); UBN Ltd Vs Ogboh [1995] 2 NWLR (Pt 380) 647.
This
brings me to the argument of the learned counsel for the Claimant that the
Claimant’s employment was unlawfully terminated as same was based on the
Federal Government White Paper on recommendations of the fact finding Committee
on complaints against some Federal Tertiary Institutions.
18.
I totally agree with the learned Claimant’s counsel that the Claimant’s
employment cannot be terminated outside the ambit of Federal University of Dutsin-Ma Act of 2015 and by Section 17
thereof.
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)
Any
action by the Defendants contrary to the above is an infraction of the said
statutory provision.
The indictment of Claimant as alleged by the Federal Government White Paper on
recommendations of the fact finding committee ought to follow the disciplinary
procedure of the University Act. See NEPA
Vs ANGO [2001] 15 NWLR (Pt 737) 672 at 647 – 648, where the Court held
thus:
"An employee of an employer with
statutory flavor has no right to terminate his appointment at will because the
employee does not hold the appointment at pleasure of such an employer. To
terminate the appointment, the employer has a duty to comply with the
conditions precedent laid down in the conditions of appointment failing which
such termination will be held to be ineffectual and void."
The uncontroverted evidence on record
by the Claimant is that the Defendants did comply with the procedure stated by
the University Act before his employment was terminated. I am of the view that
even if the Claimant did not resign his appointment, the Defendants can only
terminate his appointment by complying with the procedure laid down by the
University Act for discipline of its members of staff. I so hold.
19. The
Claimant also 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 in his testimony however, there was no iota of
evidence adduced in support of these claims. It is trite law that facts averred
in pleadings must be substantiated and proved by evidence. Averments in
pleadings are facts as perceived by the party relying on them. There must be oral
and or documentary evidence to show that facts pleaded are true. Consequently,
pleadings without evidence to support it are worthless. Various judicial
authorities avail on this principle of law.
See:
UBA Plc Vs Sani Abacha Foundation for Peace and Unity [2004] 3 NWLR
(Pt 861) 510; FBN Ltd Vs Moba Farms Ltd [2005] 8 NWLR (Pt 928) 92; Berende
Vs Usman [2005] 14 NWLR (Pt 944) 1; Cameroon Airlines Vs
Otutuizu [2011] LPELR 827.
It
therefore goes without saying that the averments made by the Claimant that were
not proved or supported by evidence are deemed abandoned. I so hold.
20. In
the final analysis, the judgment of the Court is that the termination of the
Claimant’s employment was unlawful.
For
avoidance of doubts and abundance of clarity, judgment is hereby entered in
favour of the Claimant in part and upon the following terms:
1. It is hereby declared as follows:
(a) The Claimant
effectively resigned his appointment as the bursar and ceased to be a member of
staff of the 2nd Defendant with effect from 31st July,
2016 vide the 2nd Defendant’s letter of acceptance of his
resignation.
(b) The termination
of the appointment of the Claimant by the 2nd Defendant on the 28th
October, 2015 is unlawful, null, void.
2. 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 for gross misconduct dated 28th October, 2016 are hereby
set aside.
I make no order as to costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
21/01/2020
Legal representation:
A.A
Akume Esq. with S. A. Apenigafor
Claimant
H.
B. Akut for 2nd
– 5th Defendants
1st Defendant not represented