IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON MONDAY 27TH DAY OF JANUARY, 2020
BEFORE HIS
LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO:
NICN/KD/38/2018
BETWEEN:
SAMUEL
JATAU………………………………..CLAIMANT
AND
1.
AHMADU BELLO UNIVERSITY, ZARIA (ABU)}
2.
THE COUNCIL, ABU}
3.
THE VICE CHANCELLOR, ABU}
4.
THE REGISTRAR, ABU}
5.
THE BURSAR, ABU}.……………………….. } DEFENDANTS
J
U D G E M E N T
The
Claimant was the former Deputy Bursar of the 1st Defendant until 3rd
January, 2017 when he was transferred to another office. His appointment was
however terminated by the 1st Defendant for gross misconduct on 13th
August, 2018.
The
case of the Claimant is that he received queries from the 4th
Defendant on allegations of diversion of money and issuance of confirmation
letters to third parties without authorization. After he replied the queries,
he was invited to appear before the Joint Council and Senate on Staff
Disciplinary matters – Disciplinary Committee. The Claimant appeared before the
Disciplinary Committee and he subsequently appeared before the 1st
Defendant’s Governing Council. As a result of the decision of the Council, the
Claimant’s appointment was terminated. Thereafter, the Claimant appealed in
exercise of his right to the Council but he did not receive a positive result
from the Defendants.
2.
Being thereby aggrieved by the Defendants’ action, the Claimant commenced the
present action; vide Complaint
and Statement of Facts filed
in this Court on 05/11/2018,
whereby he claims against the Defendants, the reliefs set out as follows:
i.
A
Declaration that the composition of the Joint Council and Senate Committee on
Senior Staff Disciplinary Matters which sat between the 25th – 27th
April, 2018 (particularly on the 26th April, 2018) was incompetent
and the decision reached at the meetings and report passed unto the University
Governing Council was void ab initio; same having not been composed with the
Chairman of Council (Mallam Adamu Fika, the Pro-Chancellor) presiding as the
Chairman as provided by the Statutes establishing the Defendants.
ii.
A Declaration that the termination of the Claimant’s
appointment without fair hearing violates his right to fair hearing as
guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended)
and 1st Defendants enabling law and Scheme and Condition of service
as approved by Council of 1st Defendant.
iii.
A Declaration that the termination of the
Claimant’s appointment by the Defendants is wrongful and undue victimization by
the 4th Defendant, the Claimant having been cleared of any wrong
doing or gross misconduct by the Governing Council as reflected in the minutes
of the meeting when he appeared before them.
iv.
An
Order setting aside the letter terminating Claimant’s appointment with 1st
Defendant dated 13th August, 2018.
v.
A
Consequential Order reinstating the Claimant back to his job as Deputy Bursar
with all arrears of salaries, allowances, promotions, annual increments, leave
and other entitlements as prescribed by the 1st Defendant’s Scheme
and Conditions of Service with the effect from 13th August, 2018
until he is reinstated.
vi.
An Order compelling the Defendants jointly and
severally to pay the Claimant the cost of this action including his solicitors
fee.
3.
The Defendants joined issues with the Claimant by filing a Joint Statement of
Defence on 07/01/2019 to
which a Counter-Claim was
subjoined. The Defendants contended, in summary, that they complied with all
the applicable laws and regulations with respect to the termination of the
Claimant’s appointment. The Defendants further contended that the Claimant is
not entitled to any of his claims.
4.
Whereof the Defendants counter - claimed against the Claimant as follows:
i.
A
Declaration that the Claimant’s employment with the 1st Defendant
was lawfully terminated in accordance with the 1st Defendant’s law,
thus the Claimant is not entitled to any of his claims in this suit.
ii.
N1,000,000.00
(One Million Naira) being solicitor’s fee.
The
Claimant further filed a Reply
to the Defendants’ Statement of
Defence on 16/01/2019.
5.
At the plenary trial, the Claimant testified in person. He adopted his Statement on Oath as his
evidence-in-chief and tendered in evidence a total of fourteen (14) sets of
documents as exhibits. He was thereafter cross-examined by the Defendants’
learned counsel.
The
Defendants, called two witnesses, namely Mrs.
Aisha Isah and Mallam Yahaya A.
Hassan. They both adopted their written depositions as their
evidence-in-chief and tendered in all, a total of twenty-one (21) sets of
documents in evidence. They were also both cross-examined by learned counsel for
the Claimant.
At
the conclusion of plenary trial, parties filed and exchanged their written
final addresses as prescribed by the provisions of Order 45 of the Rules
of this Court.
6.
In his final address filed on 20/08/2019
but adopted on 29/10/2019, the
Defendants’ learned counsel, A. Ishaq Esq., formulated three
issues as having arisen for determination in this suit, namely:
1. Whether or not the Defendants’ Joint
Committee of the Council and Senate on Senior Staff Disciplinary Matters which
considered and investigated the Claimant’s disciplinary case was duly
constituted in accordance with the extant laws?
2.
Whether
the termination of the Claimant’s appointment with the 1st Defendant
was in accordance with fair hearing and/or rules of natural justice?
3.
Whether
the termination of the Claimant’s appointment by the Defendants is wrongful
owing to undue victimization and sic - whether the Claimant was cleared of
wrong doing by the 2nd Defendant?
7.
In the Claimant’s final address filed on 27/09/2019,
his learned counsel, Emmanuel Shodeinde, Esq., adopted
the first issue already identified by the Defendants’ learned counsel as the
sole issue for determination but with a slight modification, that is:
“Whether or not the
Defendants’ Joint Committee of the Council and the Senate on Senior Staff
Disciplinary Matters which sat on the 26th April was duly
constituted in accordance with the Statutes creating the 1st
Defendant, same having not being composed with the Chairman of Council (Mallam
Adamu Fika) presiding as Chairman?”
The
Defendants’ Reply to the Claimant’s
final address was filed on 07/10/2019.
8.
Now, on the basis of the pleadings of parties before the Court; and the
totality of the evidence placed on record by either side, it is my considered
view that the focal issues that call for resolution in this suit are as adopted
by respective learned counsel and but I have taken liberty to rephrase the
issues as follows:
1. Whether the Defendants complied with
provisions of the 1st Defendant’s Laws, Statutes and Ordinances in
dismissing the Claimant from his employment.
2. If the answer to the above issue is in
the negative, whether the Claimant is not entitled to his claims.
I
have also taken cognizance of the totality of the arguments canvassed by the
respective learned counsel in their written addresses; to which I shall
endeavour to make specific reference as I deem needful in the course of this
judgment.
I
shall proceed to take both issues together.
(a) To place before the Court the terms of
the contract of employment and
(b) To prove in what manner the said terms
were breached by the employer.
To
establish that a contract of employment existed between the Claimant and 1st
Defendant, the Claimant as CW1 tendered in evidence his letter of offer of
appointment as Accountant II in the Bursary Department of the 1st
Defendant dated 17/06/1992 as Exhibit C1. The Claimant also testified that he was the Finance
Officer of the 1st Defendant until 03/01/2017 when he was transferred
to another office. His hand over notes was tendered as Exhibit C2. He
further testified that sometime in October 2017, he received two queries from
the Registrar and Secretary to the Council of the 1st Defendant;
that he replied the queries; that sometimes in 2018, he further received a
letter of invitation to appear before the Joint Council and Senate Committee on
Senior Staff Disciplinary Matters; that he appeared and defended himself and
presented substantial documentary evidence and that thereafter he got a letter
dated 14/06/2018 from the Registrar and Secretary to Council inviting him to
appear before the Council (the 2nd Defendant). The queries, the
Claimant’s reply to the queries, the letters of invitation to appear before the
Joint Council and Senate Committee on Senior Staff Disciplinary Matters and the
Governing Council were tendered in evidence as Exhibits C3, C3A, C4, C5
and C6
respectively.
The Claimant alleged that when he appeared before the Council, he was
not afforded the opportunity of defending himself. He testified that he
received a letter dated 13/08/2018 terminating his appointment and further
testified that he made an appeal against the purported dismissal. The letter of termination of appointment and
the letter of appeal to Council were tendered in evidence as Exhibit
C10 and Exhibit C11 respectively.
10. Now, the
Claimant’s letter of appointment Exhibit C1, makes it clear that his
appointment and the terms thereof including termination of the employment
are subject to and governed by the 1st Defendant’s Laws, statutes
and ordinances. In other words, the Claimant’s employment was one with
statutory flavor, conferring him with a legal status higher than an ordinary
matter/servant relationship and could only be terminated in the way and manner
prescribed by the Statute establishing the University or the Regulations made
under it.
11.
Evidence on record, as adduced by the DW1 and DW2 is that the
Claimant issued letters of confirmation to 3rd parties without
proper authorization or approval. Pursuant to the issuance of the alleged
unauthorized letters of confirmation by the Claimant, the Defendants witnesses
testified that the Defendants received complaints, letters of demand from the
third parties and a letter from the Economic and Financial Commission (EFCC)
inviting the Claimant to appear before it (EFCC). The letters of confirmation
issued to third parties, letter of demand, letters of complaints and letter of
invitation from EFCC were tendered in evidence as Exhibit D2, Exhibit D2A,
Exhibit D2B, Exhibit D1, Exhibit D7, Exhibit D8, D10 and Exhibit D3 respectively.
The
Defendants witnesses further testified that internal memos and queries were
issued to the Claimant to explain his roles in the alleged unauthorized
issuance of confirmation letters to third parties and also to show cause why
disciplinary action should not be taken against him; that the Claimant replied
the said memos and queries but according to the Defendants, the Claimant’s responses
were unsatisfactory, therefore his case was subsequently referred to the Joint
Committee of Council and Senate on Senior Staff Disciplinary Matters
(disciplinary Committee) which recommended the Claimant’s compulsory retirement
from the services of the 1st Defendant. The Defendants tendered in
evidence Exhibits D4, D5, D4A, D5A, D9A and D11, namely, the memo
and the query issued by the bursar, reply of the Claimant to the memo and query
and letter of bursar to the Vice Chancellor.
DW1
and DW2 further testified that the Claimant was invited before 2nd
Defendant – the Governing Council; that at the Council’s meeting of 19th
and 20th June, 2018, the Claimant’s compulsory retirement was
converted to termination of appointment.
12.
The Defendants’ witnesses maintained that the Claimant’s actions amounted to
gross misconduct and that the Defendants afforded him adequate opportunities to
defend himself. The witnesses further testified that the composition of the
Defendants’ Disciplinary Committee and the termination of his appointment were
in accordance with the Defendants’ Law and Regulations. In
support of their defence, the witnesses tendered the report of the Joint
Committee of Council and Senate on Senior Staff Disciplinary Matters, minutes
of the 176th and 179th meeting of the Governing Council,
Regulations governing the conditions of appointment of senior staff of 1st
Defendant, appointment letter of Dr. Mora to serve as Chairman of Joint Council
and Senate Committee on Disciplinary Matters as Exhibits D13, D12, D12A, D14
and D16
respectively.
13. Now, from the totality of the evidence adduced by
the Claimant, could it be said that he has satisfactorily established that his
appointment was unlawfully terminated by the Defendants as alleged to entitle
him to the reliefs he claimed?
The crux of the Claimant’s case and upon which the
determination of his claims turns, is the propriety of the manner of the
termination of his appointment by the Defendants. The Claimant alleged that the
procedure for the termination of his appointment was not as prescribed by the
Laws and Regulations of the 1st Defendant.
The submission of the learned Claimant’s counsel on
the termination of senior members of staff of the 1st Defendant such
as the Claimant in the instant case is that the termination must conform with
the Statute
8 (5) (a) and (b) of the 1st Defendant Law, and that any
other means adopted by the Defendants is illegal, null and void and of no
effect whatsoever for its inconsistency with the University Statutes and Laws.
Learned counsel for the Claimant further submitted that the composition of the
members of the Disciplinary Committee is clearly stated by the 1st
Defendant Statute. Learned Claimant’s counsel argued that the Disciplinary
Committee which submitted the report by which the Claimant’s appointment was
purportedly terminated is illegal, null and void and of no effect whatsoever and
that any action contrary to the provisions of the Statute renders any act or
decision reached unlawful.
In support of his propositions, learned counsel for
the Defendants relied inter - alia on
the cases of Fakuade Vs
O.A.U.T.H.C.M.B [1993] LPELR 1233; Iderima Vs Rivers State [2005] 7SCNJ
493; Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt. 9) 623; Olufegan
Vs Abdulraheem [2010] All FWLR (Pt 512) 1093; Ibama Vs S. P. D. C. (Nig)
Ltd [2005] 17 NWLR (Pt 954) 364
14. On the other hand, the argument of the learned
counsel for the Defendants on the issue of the composition of the members of
the Joint Council and Senate on Senior Staff Disciplinary Matters is that strict
and literal interpretation of Statute 8 (5) (a) and (b) (supra) will amount to
a violation of the principle of fair hearing. Learned counsel further argued
that to allow the Chairman of Council chair the investigation of the
Disciplinary Committee and thereafter preside over Council will be prejudicial
to the case of the Claimant.
Learned counsel argued further that the appointment by
Council of Dr. A. T. Mora as the Chairman of the Disciplinary Committee is
pursuant to the Council’s powers under Statute 4 (14) (2) of the 1st
Defendant’s Law. He further submitted that the appointment of the Chairman was
to afford the Claimant fair hearing and/or in accordance with the principles of
natural justice and maintained that the termination of the Claimant was not
unlawful.
15. Now, issues were not joined by parties on the fact
of employment and the terms of the said employment and that the Claimant’s
appointment was governed by Exhibit C1. Paragraph
2 of Exhibit C1 states:
“The appointment is subject to
the provisions of the University Laws, Statutes and Ordinances made thereunder,
and to the Regulations governing the Conditions of Appointment of Senior Staff
made by the University Council from time to time”.
Section 4 (h) (i) of the Regulations
made by the 1st Defendant governing the condition of appointment
provides:
“An appointment may be
terminated before its due date of expiry as follows:-
(i) By the Council in
accordance with the University statutes.
16. As rightly submitted by respective learned
counsel, the way and manner prescribed for the termination of statutory employment
such as the Claimant’s employment must be religiously observed otherwise such
termination has no effect whatsoever and the employee will be deemed as
continuing in his employment. See Shitta - Bey Vs Federal Public Service
Commission (supra); Olaniyan
Vs University of Lagos (supra); Iderima Vs Rivers State Civil
Service Commission (supra)
17.
The argument of the learned counsel for the Defendants is that the strict
application of Statute 8 (5) will violate the rules of natural justice and it
will occasion miscarriage of justice to the Claimant. His reason being that, to
allow the Chairman of Council preside over the investigation of the
Disciplinary Committee and to thereafter preside over the Council will be
prejudicial to the case of the Claimant. His further argument is that the word “shall”
as constructed in Statute 8 (5) could be interpreted where the context so
admits as “may”. In support of his propositions, learned counsel cited inter – alia the cases of Nyame Vs F. R. N [2010] 7 NWLR (Pt
1193) 344; Skye Bank Vs Iwu [2017] 16 NWLR (Pt 1590) 24; LPDC Vs
Fawehinmi [1985] 2 NWLR (Pt 7) 300; Okonkwo Vs U. B. A Plc [2011] 10
NWLR (Pt 1572) 1 at 35.
“Subject
to the provisions of this Statute and to the terms of his appointment, no
member of senior staff shall be dismissed save by the decision of Council and
for good cause, which shall mean gross misconduct or inability to carry out the
duties of his office or employment.
Provided
that:-
(e)
Before taking its decision, the Council shall receive and consider a report on
the case by a Joint Committee of the Council and Senate consisting of the
Chairman of the Council as Chairman and equal members of the Council and of
the Senate.
(f)
No person shall be dismissed by the Council unless he shall have been given a
reasonable opportunity of being heard by the Council”.
(Underlining for emphasis)
19.
It is clear that before a decision can be taken to terminate an employee as the
Claimant in the instant case, the 2nd Defendant, the Council,
consisting of the Chairman, must have done two things, namely:-
(1)
Received and considered a report of the Joint Committee of the Council and the
Senate on the case with the Chairman presiding;
(2)
Shall have given the employee reasonable opportunity of being heard.
For
emphasis, paragraph 5 (e), provides that “the Joint Committee of
the Council and the Senate consisting of the Chairman of the Council as
Chairman and equal members of the Council and of the Senate” shall receive
and consider the report and the recommendations on the allegation against a
senior staff.
20.
It is an elementary and established principle of law that facts admitted needs
no further prove.
In
paragraph 31 of the Statement of
Defence and Exhibits D12, D12A
and D16, the Defendants admitted that the Chairman of the Council did
not preside over the meeting of the Joint Committee of Council and Senate on
Disciplinary Matters.
Paragraph 31 of the Statement of
Defence reads as follows:-
“The Defendants’ Council
in the exercise of its powers under the ABU Law and Statutes appointed Dr. A.
T. Mora to chair the Joint Committee of Council and Senate Committee on Senior
Staff Disciplinary Matters. The Defendants’ Council Letter appointing Dr. A. T.
Mora dated 25th April, 2018 is pleaded.”
The
said letter appointing Dr A. T. Mora was tendered in evidence as Exhibit
D16.
21.
As rightly submitted by the learned Claimant’s counsel, it is now firmly
established that where a statute confers specific power on any person or
authority for the performance of certain acts or duty, it is only that person
or authority and no other person that is contemplated in the performance of the
acts or duty under the relevant law. Anything short of this cannot be endorsed
by the law.
In
Bamigboye Vs Unilorin [1999] 6 SCNJ
295, the Apex Court re-stated the law, thus:
“The
person to whom an office is delegated cannot lawfully devolve the duty to
another unless he is expressly authorized to do so. In the instant case, the
power of the University Council to discipline senior administrative, academic
and professional staff of the University of Ilorin Act was delegated to it by
that Section of the Act, thus the Council cannot delegate it to another, that
is the staff Disciplinary and Appeal Committee”.
Furthermore,
it is trite that in matters of discipline, the laid down procedure must be
strictly adhered to, otherwise any decision affecting the right, or repudiation
or tenure, of office of the employee will be declared null and void.
See
also U.N. T.H.M.B. & Ors Vs Nnoli
[1994] 8 NWLR (Pt 363) 376; Raji Vs Unilorin [1999] All FWLR (Pt 345)
325; Ahmed Vs Ahmadu Bello University Zaria & Anor [2016] LPELR
40261.
22.
Similarly, in the instant case, the power or authority vested in the Chairman
of Joint Committee of the Council and the Senate by Statute 8 (5) of the 1st
Defendant cannot be usurped, or substituted by the Council conferring same on
another person, as conferred on Dr. A. T. Mora in the present case.
The
strenuous argument of the learned counsel for the Defendants is that a strict
interpretation of Statute 8 (5) will violate the rules of natural justice and
it will occasion of injustice to the Claimant. With due respect to the learned
counsel, I disagree with his interpretation of the provisions and his line of
reasoning. Where a section of the law such as Statute 8 (5) confers powers on
an authority but subjects the exercise of that power donated by that section to
a proviso or provisos, it will not only be contrary to the intendment of the
law maker, but also contrary to the operation of the proviso or provisos to
interpret that section in a manner that ignores or neutralizes or plays down
the effect of the proviso on the power so donated in the main section. In other
words, to give to that section an interpretation that goes beyond the effect of
the proviso will be wrong.
23.
In a bid to justify the appointment of the Dr. A. T. Mora as Chairman Joint Council
and Senate Committee on Senior Staff Disciplinary Matters, learned Defendants’
counsel had argued that the 2nd Defendant is empowered by Statute 4
(14) (2) of Ahmadu Bello University Law to make such appointment.
Statute
4 (14) (2) (supra) in reference provides as follows:
“The
Council may establish disciplinary committees of the Council and the Senate to
which the Council may appoint members of Council and Senate. The Council may
delegate to any such Joint Committee any powers or functions which it is itself
competent to perform”.
I
agree with the submission of the learned counsel for Claimant that by a literal
interpretation of the provision of this Statute, the Council may only delegate
powers or functions to any such joint committee which it is itself competent to
perform. The Council does not have power to amend the express provision of the
composition of its members to substitute the Chairman Council with another
member. I so hold.
24.
Consequently, it is glaringly clear that the Defendants blatantly violated the
procedure for the termination of appointment provided in Statute 8 (5) (supra)
which applies to the Claimant in terminating his appointment.
The
question really is not whether the Claimant committed any act of gross
misconduct (though this is not saying that he did), but the germane question is
whether in terminating his appointment, the statutory prescribed procedure was
complied with.
25.
I am satisfied that the termination of the Claimant’s appointment was not in
accordance with the law. Therefore, I find and hold that the Defendants did not
strictly and fully comply with the provisions of the Ahmadu Bello University
Act (supra) and was therefore in breach thereof.
26.
The learned Defendants’ counsel had vehemently argued that the Claimant was
accorded fair hearing as adequate opportunity was given to him to defend
himself. I consider a detailed
consideration of the requirement of fair hearing as elaborated by the learned
counsel for Defendants as unnecessary in the light of the conclusion that the
Defendants did not strictly comply with the prescribed procedure on the
composition of the members. The reasoning for this is premised on the ground that
failure to comply with any of the conditions is tantamount to non compliance as
there can be no partial or half compliance. The non – observance on the
composition of the members in the process of reaching a decision renders the
decision itself a nullity. I so hold.
Having
held that the Defendants did not strictly and fully comply with the provisions
of the Ahmadu Bello University Act the purported termination of the Claimant is
hereby set aside as same is unlawful, null, void and of no effect whatsoever. I
so hold.
27.
Having set aside the termination of the Claimant, what then is the remedy
available to the Claimant? Or to put it differently, what is the effect of
unlawful termination of an employee whose appointment enjoys statutory flavour?
In
Central Bank of Nigeria & Ors Vs
Igwillo [2007] 14 NWLR (Pt 1054) 343, the Supreme Court per Karibi-
White JSC, (as he then was) held thus:-
“If
termination or dismissal is illegal or unconstitutional or null and void and of
no effect whatsoever, then a Court is entitled to order reinstatement as it
happened in the instant case”.
It
is on record that before the Claimant’s appointment was terminated, he had been
transferred from the office of the Deputy Bursar to another officer that is, the
Claimant was not a Deputy Bursar as at the time his appointment was terminated.
The term reinstatement in its ordinary
and primary meaning is to replace the person to the exact position he was
before his removal. That is, to restore him to his status quo ante. It is
therefore retroactive of the act of dismissal and restoration of payment of
wages for the intervening period.
I
find and hold that the Claimant is entitled to his claim for reinstatement.
Perhaps,
in closing the curtain of this judgement, it is imperative to state that the
Defendants did not prove the Counter – Claim and same fails in its entirety. I
so hold.
28.
In the final analysis, standing on the solid position of the law, I hereby
grant the Claimant the following reliefs:
1. A Declaration that the
composition of the Joint Council and Senate Committee on Senior Staff
Disciplinary Matters which sat between the 25th – 27th
April, 2018 (particularly on the 26th April, 2018) was incompetent
and the decision reached in the meeting and report passed unto the University
Governing Council was void ab initio; same having not been composed with the
Chairman of Council (Mallam Adamu Fika, the Pro-Chancellor) presiding as the
Chairman as provided by the Statutes establishing the Defendants.
2. An Order of this
Honorable Court setting aside the letter terminating the Claimant’s appointment
dated 13th August, 2018.
3. An Order of this
Honourable Court reinstating the Claimant as a member of the Senior Staff of
the 1st Defendant.
4. An Order of this Honourable Court
directing the Defendants to pay within one (1) month all arrears of salaries,
allowances and other entiltlements from the date of the purported dismissal
till date.
Parties
shall bear their respective costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
27/01/2020
Legal representation:
Emmanuel Shodeinde Esq. for Claimant
A. Ishaq Esq. for Defendants