IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON MONDAY 09TH DAY OF DECEMBER, 2019

BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/KD/62/2017

BETWEEN:

SULE USMAN MACHIKA………..…………….CLAIMANT

AND

1. NATIONAL RESEARCH INSTITUTE FOR

    CHEMICAL TECHNOLOGY, ZARIA}

2. HON. MINISTER OF SCIENCE AND

    TECHNOLOGY}

3. PROF IDRIS M. BUGAJE

    DIRECTOR GENERAL/CEO NARICT}                        

    …………………………………………………….DEFENDANTS

J U D G M E N T

This suit has a chequered history. The Claimant commenced the suit by Writ of Summons and Statement of Claim filed on 14/05/2014. As borne out by the records, the proceedings in the suit had been plagued by objections and countless applications for adjournments, which the Court had to accommodate in the overstretched interest of justice that “covers all sins!”

By an application made by the Claimant, the case was transferred from Abuja Division to the Kaduna Division on 27/11/2017. It was thereafter commenced by His lordship, Late Hon. Justice Lawal Mani (of blessed memory) and again started de novo by this Court on 02/11/2018. 

2. The Claimant claimed against the Defendants, the reliefs set out as follows:

1.    A DECLARATION that his dismissal from the services of the 1st Defendant via a letter dated the 10th of October, 2013 and posted to him through one Prof. Sabitu of the Department of Community Health, Ahmadu Bello University, Zaria and received by him on the 12th day of March, 2014 was a breach of all known Public Service Rules, the Constitution of the Federal Republic of Nigeria 1999 and the violation of his fundamental right to fair hearing and therefore wrongful, illegal, oppressive and of no effect whatsoever.

2.    A DECLARATION that his forceful eviction from his official residence by the Defendants without recourse to due process when he was only placed on suspension is wrongful, illegal, oppressive and of no effect whatsoever.

3.    An ORDER of Court reinstating the Claimant to his position as a member of Staff of the 1st Defendant with all accompanying entitlements, rights and privileges including his salaries and accrued benefits.

4.    An ORDER of Court reinstating the Claimant to the official residence allocated to him to wit: Staff Quarter D14 within the Institute Staff Quarters being so entitled as a member of Staff.

5.    Special damages in the sum of N4,504,500.00 (Four Million Five Hundred and Four Thousand, Five Hundred Naira) only as total cost of lodging in Fairview Guest Inn, Zaria between the period of August 2013 and April 2014 as a result of forceful eviction from the official quarters of the Institute.

6.    General damages in the sum of N20,000,000.00 (Twenty Million Naira) as general damages for the loss, intimidation, oppression and psychological trauma the Claimant has suffered.

7.    Cost of filing this suit.

3. In summary, the Claimant’s case is that he was the Assistant Chief Administration Officer of the 1st Defendant until 10/10/2013. He contends that his ordeal with the 1st Defendant started when he was posted to Awka, Anambra State. The Claimant then wrote a letter to the 1st Defendant after he received his letter of posting, to seek clarification on his roles at the new station and he also requested for his posting entitlements and basic working tools. The Claimant alleged that even though the 1st Defendant did not pay his posting entitlements, he still reported at the new station but that a query was served on him for misconduct alleging that he refused to report at his new station. The Claimant contends that he was served with a notice to quit to vacate from his official residence within the 1st Defendant. The Claimant contends further that he was invited to appear before the Senior Staff Committee and that thereafter he was placed on suspension. The Claimant alleged that he wrote a letter of appeal to the Hon. Minister of Science and Technology against his purported suspension but that while waiting for the decision of the Minister, he was forcefully ejected from his official residence and his appointment was later terminated.

On the basis of these essential facts, the Claimant instituted this action against the Defendants.

4. The Defendants denied the Claimant’s claims by filing a Joint Amended Statement of Defence on 04/05/2016. The 1st - 3rd Defendants’ defence, in brief, is that the Claimant wrongly and with impunity entered an accommodation purely set aside for Directors. The Defendants further contended that the Defendants complied with the required procedure in evicting the Claimant from the official quarters and in terminating the Claimant’s appointment.

The Claimant filed a Reply to the Joint Statement of Defence on 19/05/2016.

5. At the plenary trial, the Claimant testified in person and called one witness, Hussaina Usman Machika, who claimed to be the wife of the Claimant. They both adopted their Statements on Oath as their evidence-in-chief and tendered in all, a total of twenty-one (21) sets of documents in evidence. They were both cross-examined by the learned counsel for the Defendants.

For the defence, one Mallam S. A. Saleem, who claims to be the Deputy Director (Administration) of the 1st Defendant, testified on their behalves. He adopted his Statement on Oath as his evidence-in-chief and tendered in evidence a total of five (5) documents as exhibits. He was equally cross-examined by the Claimant’s learned counsel.

6. At the close of plenary trial, parties filed and exchanged their final written addresses pursuant to the provisions of Order 45 of the Rules of this Court.

In the final address filed on behalf of the Defendants on 18/06/2019, their learned counsel, Y. A. Hassan, Esq., formulated two issues as having arisen for determination in this suit, namely:

1.    Whether from the facts disclosed in this suit, the Claimant’s suit before this Honorable Court is statute barred.

2.    Whether this suit as it presently constituted, is competent.

The Claimant in turn filed his final address on 19/09/2019, wherein his learned counsel, Martins Joseph, Esq., equally raised two issues as having arisen for determination, namely:

1.    Whether the Defendants followed due process in terminating the employment of the Claimant?

2.    Whether the Defendant followed due process in ejecting the Claimant from his official residence?

7. Upon a proper assessment of the pleadings of parties, the totality of admissible evidence adduced on record and the totality of the circumstances of this case, it is my considered view that the narrow issues that call for determination in this suit, without prejudice to the issues already formulated by learned counsel on either side, can be succinctly formulated as follows:

Whether or not the Claimant successfully proved his case that his appointment was unlawfully terminated by the Defendants and whether he is entitled to the ancillary reliefs claimed as resulting from the unlawful termination? 

In proceeding to determine these issues, I state that I had also carefully considered the totality of the submissions canvassed by the parties’ learned counsel in their respective written final addresses which was adopted on 17/10/2019. I shall endeavour to make specific reference to learned counsel’s arguments as it is considered needful in the course of this judgment.

8. I would begin, by adverting to the issue raised by the Defendants’ learned counsel in his final address on the competence of this suit bordering on limitation of action against public officers.

The argument of the learned Defendants’ counsel is that the provision of Section 2 (a) of the Public Officer’s Protection Act has barred the Claimant from bringing this action having not been filed within three (3) months of the occurrence of the ejection of Claimant from the Defendants’ residential accommodation and his termination from the employment of the Defendants on 10/10/2013.

9. Now, I do not intend to expend much time and energy on this issue. It is on record of the Court and as the learned Claimant’s counsel had correctly submitted, the learned Defendants’ counsel had previously raised this objection and same was dismissed by the Ruling of Hon. Justice P. O. Lifu on 10/11/2014.

The hub question on which the entire superstructure of the Defendants’ objection that this suit is statute barred spins is: does the decision of 10/11/2014 subsist?

10. In Rossek Vs ACB Ltd [1993] 8 NWLR (Pt 312) 382 the Apex Court held that, a judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by an Appeal Court or by the Court itself, where it acted without jurisdiction and there is an unqualified obligation on every person against whom the decision is giving to obey it; and that to hold otherwise is to clothe the person against whom a judgment is given with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him; and further that, this will amount to an invitation to anarchy.
See also Fidelity Bank Plc Vs Tabora & Ors [2018] LPELR 44504; Section 168 (1) of the Evidence Act, 2011

At the risk of repetition, the Ruling of 10/11/2014 was not appealed. There is therefore a presumption of the correctness of the Court's Ruling; and until that presumption is rebutted and the Ruling is appealed, it remains subsisting and prevailing between, and binding on, the parties. Consequently, it must be obeyed. The situation makes baseless the objection by the Defendants since they had not appealed against the Ruling of the Court dismissing the objection which brought to an end the issue. Without further belaboring the point, I hold that the issue that the Ruling of 10/11/2014 subsists is resolved against the Defendants.

TREATMANT OF SOLE ISSUE:

11. Now the Claimant’s case as averred in paragraphs 5, 6 and 7 of his Statement of Claim is that he was served with a posting letter directing him to relocate to Awka, Anambra State. The Claimant testified that upon being served with the letter of posting, he wrote a letter by which he sought further clarification of his roles and responsibilities at the new site and also requested for working tools and his financial posting entitlements. According to the Claimant, by the reply of the 1st Defendant to his request, he was further directed to proceed on the posting in spite of the concerns he raised in his letter. The Claimant further testified that he reported at the new site in Akwa regardless of the fact that his posting entitlements were not paid and the basic tools were also not provided. The correspondences between the Claimant and the 1st Defendant on the issue of the Claimant’s posting namely: the 1st Defendant’s letter of posting dated 15/03/2012, Letter of Claimant to the 1st Defendant dated 19/03/2012, 1st Defendant’s reply to Claimant’s letter dated 20/03/2012, the Claimant’s application for posting claims dated 17/04/2012 and the 1st Defendant’s reply on Claimant’s application dated 20/04/2012 were admitted in evidence as Exhibit C1, Exhibit C2, Exhibit C3, Exhibit C4, Exhibit C5 and Exhibit C7 respectively.   

12. The grievance of the Claimant against the Defendants as established by evidence on record is that a query for misconduct was served on him on the ground that he refused to report at Akwa, the new station. The Claimant testified that the 1st Defendant served a notice to quit on him to vacate the official residence since he was no longer entitled to accommodation in the 1st Defendant’s quarters having been posted to Akwa. The Claimant further testified the 1st Defendant issued another query alleging that he was absent from the project site (Akwa) for two weeks. The Claimant testified further that he was invited to appear before the Senior Staff Committee (SSC) and that after appearing at the Committee, he was issued with a letter of suspension with a further directive to vacate the official residence within two weeks. The Claimant also testified that he made an appeal against his suspension to the Hon. Minister of Science and Technology and he further alleged that while he was awaiting the decision of the Minister, he was forcefully evicted from the official residence without due process and that as a consequence of the forceful eviction the Claimant and his family lodged at the Fairview Guest Inn Zaria. The Claimant testified that his appointment was subsequently terminated by the Defendants. The Queries dated 26/04/2012 and 03/07/2012, the Notice to Quit, dated 07/05/2012, the invitation to appear before the SSC dated 16/07/2013, the letter of suspension dated 16/07/2013, the letter of appeal dated 30/07/2013, the receipts of Fairview Guest Inn and the letter of termination dated 10/10/2013 were admitted in evidence as Exhibits C7, C9, C8, C11, C10, C12, C6–C6H and C13 respectively.

13. The Claimant testified as to specific instances of violation of the Conditions of Service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions and The Public Service Rules (the Rules) by the Defendants in terminating his appointment. Essentially, the allegations made by the Claimant are as follows: that during the hearing of the allegations leveled against him, the Committee never produced any letter written by the District Head nor served him with any such letter; that no witness was called to testify to any such incident between the Claimant and the District Head; that he was deprived adequate notice; that the proceedings did not accord him with time and facilities to prepare his defence and that the composition of the Committee and the manner in which the proceedings were conducted were in violation of the Rules.

When he was questioned under cross-examination by the Defendants’ learned counsel, the Claimant admitted that by the terms of his employment, he can be posted anywhere and that he was posted to Awka. The Claimant also admitted that there was no re-posting between the period he was posted and when his appointment was terminated.

The summary of the testimony of CW2, the wife of the Claimant, is that their official residence was locked up by the 1st Defendant.

14. The Defendants, on their part denied the entirety of the Claimant’s claim in their defence and stated that the Claimant absconded from his duty post in Awka. The Defendants further stated that the Claimant’s employment was properly and procedurally terminated having been issued queries and that the Claimant was invited by the committee set up by the 1st Defendant to investigate the allegation leveled against him. The Defendants also stated that the Claimant’s employment was terminated after the report of the investigating committee was reviewed. DW1 testified further that the Claimant wrongly and with impunity entered House No B25, an accommodation purely set aside for Directors of the 1st Defendant and that the Defendants took over the official residence since it was unlawfully occupied by the Claimant. The Defendants in support of their defence, tendered in evidence the Claimant’s Application for Appointment dated 12/02/2006; Letter of Allocation of Staff Quarters dated 02/12/2011; Report of the Committee that investigated the case of abscondment dated 25/07/2012; Report of the Senior Staff Committee dated 16/07/2013 as Exhibits D1, D2, D4 and D5 respectively.

15. Now, from the totality of the evidence adduced by the Claimant, could it be said that he has satisfactorily established violation on the part of the Defendants, the Conditions of Service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions and The Public Service Rules as alleged to entitle him to the declaratory reliefs he claimed?

Since the Claimant prayed for two declaratory reliefs, the law requires him to adduce cogent and credible evidence in support of his claims; whether or not there is a defence to the action. As such, the focus is on the evidence adduced by the Claimant in support of the declaratory reliefs he seeks and not necessarily on the defence offered by the Defendants. See Dumez Nigeria Ltd. Vs. Nwakhoba [2009] All FWLR (Pt. 461) 842; Ogunleye Vs. Aina [2010] LPELR 4694(CA).

16. Furthermore, as correctly submitted by the Defendants’ learned counsel, it has been firmly established that when an employee complains that his 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 law is also settled that the terms and conditions of a contract of employment or service are the bedrock of any case where the issue of wrongful termination of employment is the basis of the claims made by the Claimant. Such terms and conditions of contract of the employment are required to be pleaded and placed before the court in evidence. As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof.

In Amodu Vs Amode [1990] 5 NWLR (Pt 150) 356 Agbaje, JSC (as he then was) observed at page 370 as follows:-

"It appears clear to me that since it is the plaintiff's case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question."

To this, Wali, JSC added at page 373:-

"The term of the contract of service is the bedrock of the appellant's case."

See also 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

In other words, the test of whether the dismissal of an employee is proper or unlawful is, whether the procedure adopted in effecting the dismissal 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.

17. In the present case, the Claimant’s case is that the Defendants violated the disciplinary procedure or conditions of service of the 1st Defendant and the provisions of the Federal Research Institutes, Colleges of Agriculture and Allied Institutions and that of the Public Service Rules. This was expressly asserted in as averred in paragraphs 27, 29 and 30 of the Statement of Claim. The effect of these assertions is that his employment has statutory flavor and cannot be determined otherwise than as provided for in the conditions of service of the 1st Defendant. The Claimant is therefore required to plead the conditions of his service or employment along with the disciplinary procedures provided therein.

18. However, as correctly submitted by the learned Defendants’ counsel, the Claimant failed to place before this Court, his letter of employment or appointment which stated the terms and conditions of his employment with the 1st Defendant. Neither did he place before the Court the Conditions of Service of the 1st Defendant.

Worst still, the Claimant himself admitted under cross-examination as follows:

“By my terms of employment, I can be posted anywhere.”

By his testimony, it is implied that there are terms and conditions regulating his employment with the 1st Defendant. I am of the firm view that without placing the Claimant’s terms of employment before the Court, it is not the duty of the Court to go fishing for evidence to know the terms and conditions of his employment.

19. The learned counsel for the Claimant had posited that the constitution of the members of the Committees and the entire proceedings of the Committees which resulted in the termination of the appointment of the Claimant as stated in Exhibits D4 and D5, are flawed by none observance of the laid down procedure of the Public Service Rules.

It is imperative to restate the position of the law that firstly, it is not the duty of the employer as a Defendant in an action brought by the employee to prove the terms and conditions of employment and whether the terms were not violated. See: Okomu Oil Palm Co. Vs Iserhienrhien [2001] 5 NSCQR 802; Audu Vs Petroleum Equalisation Fund (Management) Board & Anor [2010] LPELR 3824.

Secondly, addresses of counsel do not and cannot take the place of evidence. A party cannot make out a case solely on the address of counsel, but on facts pleaded and evidence adduced in support of such facts. See Oloruntoba-Oju Vs Abdul-Raheem [2009] 6 SCNJ 1. Address by counsel does not serve as a substitute for evidence. Submissions therein on facts not pleaded and proved amounts to no issue. See Ogunsanya Vs State [2011] 6 SCNJ 190; NIPOST Vs Musa [2013] LPELR 20780. 20. Learned counsel for the Claimant had strenuously argued to convince the Court in his written address that the issue of the Claimant’s dismissal has been narrowed down to wrongful dismissal under the Public service Rules, 2009 as the dispute only relates to whether the Defendants followed due process in dismissing the Claimant. Impliedly, the submission of learned Claimant’s counsel is that the Claimant’s letter of employment which contains the terms and conditions regulating his relationship with the 1st Defendant is not relevant in proving the reliefs being claimed. With due respect, this submission is erroneous and misconceived. The Claimant’s letter of employment is not only crucial in the determination of the Claimant’s claims, it is also a mandatory document required to be filed in claims for wrongful and unlawful termination or dismissal of appointment. See Order 3 Rule 13 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.  As I had earlier stated, the Claimant had admitted that there is a terms of employment which regulated his employment.

21. I totally agree with the submission of learned counsel for the Defendants that the Writ of Summons/Complaint as constituted is incompetent. Failure of the Claimant to plead and prove the terms and conditions (his letter of employment) is fundamental and fatal to his case. And I so hold.

My conclusion therefore, with respect of the Claimant’s claim for unlawful termination is that the Claimant failed to discharge the onus of proving his case, without which the Defendants cannot be held liable for breach of procedure of the rules regulating his employment.

My finding is that the totality of the evidence adduced by the Claimant in support of the allegations of unlawful termination of his employment against the Defendants is incredible and vague. The result therefore is that he cannot be entitled to the declaratory reliefs claimed. I so hold.

22. The implication is further that the totality of the ancillary reliefs for reinstatement to his position as a member of staff of the 1st Defendant, reinstatement to the official residence, special damages and general damages claimed by the Claimant cannot be sustained. The success of the ancillary or consequential reliefs is dependent on the success of the declaratory reliefs. See Nwankwo Vs Okereke [2013] LPELR-21952.

23. In the final analysis I resolve the sole issue I had formulated for determination in this suit against the Claimant.

In conclusion the judgment of the Court is that the claim of the Claimant is vague and lacking in merit and in substance.

It shall be and is hereby accordingly dismissed. I make no orders as to costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

09/12/2019

 

Legal representation:

Martins Joseph Esq., for Claimant

A. T. Abubakar Esq. for Defendants