IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON THURSDAY 4TH DAY OF FEBRUARY, 2021

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

SUIT NO: NICN/ABJ/348/2018

BETWEEN:

YAKUBU ADO……….…………………..............................CLAIMANT

AND

1.   AHMADU BELLO UNIVERSITY, ZARIA               

2.   THE VICE CHANCELLOR, AHMADU BELLO UNIVERSITY

3. THE REGISTRAR, AHMADU BELLO UNIVERSITY……….….DEFENDANTS

J U D G E M E N T

The Claimant commenced the instant action challenging his unlawful dismissal vide Complaint and Statement of Facts filed in this Court on 06/12/2018, wherein he claimed against the Defendants, the reliefs set out as follows:

1.   A Declaration that the dismissal of the Claimant vide dismissal letter dated 11th February, 2013 from the service of Ahmadu Bello University is unlawful, void and has no effect.

2.   A Declaration that the Claimant is still a staff of Ahmadu Bello University.

3.   An Order setting aside the dismissal letter dated 11th February, 2013.

4.   An Order directing the Defendants to pay the Claimant herein, all salaries and or any other entitlement due or to which he is entitled to from the day his salary was stopped to the day the Defendants comply with this order.

5.   N12,000,000.00 (Twelve Million Naira) only general damages.

6.   Cost of action.

ALTERNATIVELY

a.   An Order directing the Defendant to change the action taken on the Claimant from Dismissal to Termination.

2. His case, briefly stated, is that he was suspended from his duty with the 1st Defendant based on a petition written to the 3rd Defendant; that while on suspension, he received three (3) other queries by which he was alleged to have committed three (3) different acts of misconduct and that he was subsequently dismissed from service. The instant suit was instituted when the Defendants failed and/or refused to review his unlawful dismissal.

3. The Defendants joined issues with the Claimant by filing a Statement of Defence on 02/12/2019 and to which a Counter-Claim was subjoined. The Defendants maintained that the Claimant was accorded fair hearing during the investigations and that the disciplinary procedure was complied with before the Claimant was dismissed.

Whereof the Defendants Counter-Claimed against the Claimant as follows:

i.             A Declaration that the dismissal of the Claimant from the services of the Defendants was lawful, not void and has effect.

ii.           N1,000,000.00 (One Million Naira) being solicitor’s fee for prosecuting this suit.

iii.          Cost of this suit.

The Claimant further filed a Reply to the Defendants’ Statement of Defence on 03/07/2019.

In the operative Better and Further Statement of Particulars of Defence and Additional Witness Statement on Oath filed with the leave of Court on 31/10/2019, the Defendants contended that although the Claimant was dismissed in February 2013, investigation conducted by the Defendants disclose that the Claimant with the connivance of some staff of the Bursary Department of the 1st Defendant had fraudulently and unlawfully received salary from February 2013 to April 2017.

4. 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 seventeen (17) sets of documents as exhibits. He was thereafter cross-examined by the Defendants’ learned counsel.

The Defendants fielded one witness, the DW1 – Shehu Usman Bello, who testified as the leader of the University Security Team that investigated the case of the Claimant. He adopted his Statement on Oath as his evidence-in-chief and tendered in all, a total of thirty-five (35) sets of documents in evidence. He was equally cross-examined by learned counsel for the Claimant.

5. Upon conclusion of plenary trial, parties filed and exchanged their final written addresses as prescribed by the Rules of Court.

In the final address filed on behalf of the Defendants on 27/07/2020 A. Ishaq Esq., of counsel, formulated four issues as having arisen for determination in this case, namely:

1.     ”Whether the Claimant’s suit is statute barred?

2.     “Whether the Claimant has been afforded fair hearing in the determination of his employment with the 1st Defendant?

3.     “Whether the Claimant is entitled to the reliefs claimed?

4.     “Whether the Claimant has a defence to the Defendants’ Counter-Claim?

In turn, the Claimant in his final address filed by his learned counsel, Mohammed Sani Esq., distilled a sole issue for determination in this case, that is:

“Whether in view of the facts and evaluation before this Court, the Claimant did not prove his claim on the preponderance of evidence and balance of probabilities.”

6. 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; and without prejudice to the issues variously formulated by learned counsel in their respective written submissions, are:

1.   Was the Claimant accorded fair hearing by the Defendants in dismissing him from his employment with the 1st Defendant?

2.   Upon resolution of issue (1), did the Claimant lawfully establish his entitlements to the declaratory and other reliefs claimed in this suit against the Defendants?

3.   Have the Defendants discharged the burden of proving their entitlement to the Counter-Claim?

In determining these issues, I had also carefully considered the totality of the written submissions canvassed in the parties’ written final addresses which was adopted on 11/11/2020. The Court shall endeavour to make specific reference to arguments canvassed by the respective learned counsel in their final submissions as it is considered needful in the course of this judgment.

7. It is pertinent as a starting point, to consider the issue of the competency of this suit bordering on the limitation of action against public officers as canvassed by the Defendants’ learned counsel in his final address.

The argument of the learned Defendants’ counsel is that the Claimant  is barred by the provision of Section 2 (a) of the Public Officer’s Protection Act from bringing this action, having not filed same within three (3) months of the occurrence of his dismissal from the Defendants’ on 11/02/2013.

8. Now, I do not intend to expend much time and energy on this issue. The trite and well established doctrine is that, the decision that is later in time takes precedence over the earlier decision, and operates as a bar, thus representing the correct position of the law. See Alao Vs Unilorin [2008] 1 NWLR (Pt 1069) 421 at 450; Ansa Vs RTPCN [2008] ALL FWLR (Pt 405) 1681 at 1699. In line with the above doctrine of law and as correctly submitted by the learned Claimant’s counsel, the authorities of Yare Vs National Salaries, Wages and Incomes Commission [2013] 54 NSCQR 235 and Abubakar Audu Esq. Vs Local Government Service Commission, Kaduna State & 3 Others in Suit No NICN/KD/44/2017 (Judgement of this Honorable Court delivered on 26th February, 2019)  relied upon by learned counsel for the Defendants to convince this Court that the Claimant is totally barred from proceedings against the Defendants no longer represent the current or correct position of the law on the issue. This is in view of the more recent decision of the Apex Court in the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors Vs Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 at 270 which is applicable to the circumstances of the present case.

9. The current position of the Apex Court per Ariwoola JSC at Page 271 is restated as follows:

“I have no slightest difficulty in holding that the Appellant are not covered by the provisions of the Public Officers Protection Act as to render the Respondents’ action statute barred. In sum, I hold that the learned Justices below are right in holding that the Appellants do not enjoy the umbrella of Public Officers’ Protection Law in the contract of service involving the Respondents…” (Underlined portions for emphasis)

It is perhaps significant to state that by reviewing the previous position of law as it relates to the application of the POPA, it is the view of this Court that, it is to prevent the untold hardship inherent in the application of the POPA that precipitated the current position that the POPA does not apply to or does not provide a shield for public officers and/or institutions from liability for their acts. Therefore, being the most recent decision of the Apex Court on the application of the POPA to employment contracts, the contention by learned counsel for the Defendants that the Claimant’s suit is incompetent on the ground that it is statute barred no longer represent the correct legal position. And I so hold.

ISSUES ONE AND TWO:

10. I shall now proceed to resolve issues one and two together.

Issue (1) is to determine whether or not the Claimant was accorded fair hearing by the Defendants in dismissing him from his employment and Issue (2) is to determine whether the Claimant has lawfully established his entitlements to the declaratory and other reliefs claimed in this suit against the Defendants?

The Claimant’s case as averred in paragraphs 5 and 6 of his Statement of Facts is that he was employed by the 1st Defendant on 11/06/1991 and that he rose through the ranks to a senior member of staff. The Claimant testified that the 3rd Defendant received a petition written against him (the Claimant) which was referred to the Police for investigation and that he received a letter of suspension while the Police was conducting the investigation. The Claimant further testified that while he was still on suspension he received three queries with different allegations which he promptly replied.

11. The Claimant testified further that he was invited to appear before the Senior Staff Disciplinary Committee to defend the different allegations levelled against him. The Claimant alleged that throughout the duration of the sitting of the disciplinary committee he never saw the complainants and/or witnesses; that he was not afforded the opportunity to cross examine them and that he was not given facility to defend himself. The Claimant further testified that he was dismissed by the Governing Council on the recommendation of the disciplinary committee; that he appealed to the 1st Defendant for a review his dismissal; that he was invited to the Governing Council and by the report of the disciplinary committee; the Council affirmed and maintained its decision on his dismissal.

The Claimant testified that his dismissal from the 1st Defendant was unlawful and as a result he suffered various degrees of mental, physical and psychological injuries.

12. In further support of his case, the following documents were admitted in evidence:

i.      Letters of appointment and confirmation of appointment dated 11/06/1991 and 04/08/1993 - Exhibits C1 and C1A

ii.      Letter of promotion dated 11/08/2005 – Exhibit C2

iii.     Letter of suspension dated 02/12/2010 – Exhibit C3

iv.     Queries dated 12/09/2011, 15/09/2011, 20/12/2012 – Exhibits C4, C4A, C4B

v.      Reply to the Queries dated 13/09/2011, 15/09/2011, 21/12/2012 – Exhibits C5, C5A, C5B

vi.     Invitation to appear before SSDC dated 18/01/2013 – Exhibit C6.

vii.    Letter of dismissal dated 11/02/2013 – Exhibit C7

viii.   Letter of Appeal dated 16/05/2013 – Exhibit C8

ix.     Reply to appeal dated 31/05/2016 – Exhibit C9

x.     Invitation to appear before Governing Council dated 27/03/2017 – Exhibit C10

xi.     Letter of Appeal dated 24/09/2018 – Exhibit C11

xii.    Regulations Governing the Conditions of Appointment of Senior Staff of Ahmadu Bello University – Exhibit C12

The Claimant further testified under cross examination, that he made representations both at the SSDC and the Council but he was not given fair hearing during his representations. The Claimant admitted that after his dismissal, he received salaries for four (4) years until it was stopped in April 2017.

13. Now, from the totality of the evidence adduced by the Claimant, can it be said that he has satisfactorily established that his dismissal was unlawful on the ground that he was denied fair hearing by the Defendants to entitle him to the reliefs he claimed?

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.

It has also been established that the test of whether the termination or dismissal of an employment with statutory flavour is unlawful is, whether the procedure adopted in effecting the termination or dismissal conforms to the procedure laid down in the statute and/or 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 procedure, there was 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

In the present case, the Claimant’s case is that the Defendants violated his right to fair hearing and did not comply with the disciplinary procedure as stated in the Conditions of Service of Senior Staff of the 1st Defendant. This was expressly deposed in paragraphs 22, 27, 28, 29, 30, 31, 35 and 36 of the Witness Statement on Oath. The effect of these depositions is that his statutory employment cannot be determined otherwise than as provided for by the terms and conditions of his appointment.

14. The Defendants, on their part denied the entirety of the Claimant’s claim in their defence. The defence put forward by DW1, as it is material to the issues under resolution is that the Claimant was accorded fair hearing in dismissing his appointment and that he was lawfully dismissed in accordance with the Laws and the Regulations governing his appointment. The testimony of DW1 is that the Defendants received a letter from the Federal Ministry of Education Tertiary Institutions Department forwarding a letter of complaint alleging that the Claimant who was formerly an officer in the Academic Office of the Defendants stole and sold NCE and B.Sc certificates to one Binta Mohammed. DW1 testified that the Vice Chancellor of the 1st Defendant referred the matter to the Registrar and the Security Department of the 1st Defendant to investigate; that pending the outcome of the investigation, the Claimant was suspended from his duties; that upon conclusion of the investigation, the Security Department recommended for the transfer of the case to the Nigeria Police for further investigation while internal administrative action was taken against the Claimant pending the conclusion of the case; that through further investigations, the Claimant as the Registration Officer of the 1st Defendant was alleged to be involved in other acts of misconduct and that the Police investigation on the alleged theft and sale of certificate to Binta Mohammed was not concluded because the  whereabouts of the said Binta Mohammed was not unknown.

The letter of the Federal Ministry of Education to the Vice Chancellor of the 1st Defendant dated 18/10/2010 with the petition of one M. B. Sule dated 25/07/2010; the letters of the University Security Services to the Vice Chancellor and to the Area Commander of Nigeria Police dated 01/09/2010 and 13/19/2010; the letter of suspension of the Claimant dated 02/12/2010; and the reply of Area Commander of Nigeria Police to the University Security Department dated 11/10/2010 were admitted in evidence as Exhibits D1, D1A, D2, D8, D5 and D5A respectively.

15. The Defendants’ witness further testified that the report of the University Security Services alleged that the Claimant connived with other members of staff as Registration Officer and was culpable in the registration and admission malpractices; that queries were issued to the Claimant to explain his roles in the alleged registration and admission malpractices and to also show cause why disciplinary action should not be taken against him; that the Claimant replied the said queries but according to the Defendants, the Claimant’s responses were unsatisfactory, his case was therefore referred to the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (Disciplinary Committee).

The Defendants tendered in evidence Exhibits D7, D9, D9A, D9B, D9(i), D9A(i) and D9B(i), namely: the Report of the University Security Services to the Vice Chancellor dated 11/05/2011, queries dated 01/07/2011, 12/09/2011, 15/09/2011, reply of the Claimant to the query dated 08/07/2011, 13/09/2011 and 15/09/2011 respectively.

16. The Defendants’ witness further testified that the Claimant was invited to appear before the Joint Committee of the Council and Senate for disciplinary matters (SSDC); that the SSDC made a recommendation that no case was established against the Claimant in respect of the alleged theft and sale of ABU certificate but a recommendation was made for the termination of his appointment on the cases of conspiracy and forgery of ABU IJMB results; that the Governing Council of the 1st Defendant, at the 151st meeting approved the dismissal of the Claimant and that the Claimant was accordingly dismissed. The Claimant’s letter of invitation to SSDC, extracts of the reports of the SSDC and the Governing Council and the Claimant’s letter of dismissal were admitted in evidence as Exhibits D10, D11, D13 and D14 respectively.  

17. The Defendants’ witness testified further that the Claimant appealed against his dismissal; that the Defendants’ replied that the Claimant’s appeal lacked merit as there were no fresh facts to warrant a review of his case; that the Claimant re-appealed and requested for review of his case; that based on the Claimant’s second appeal and request, he was invited to re-appear to defend himself; and that after his case was reviewed by the Governing Council, the Council on the ground of insufficient facts  referred his case back the SSDC for representation with detailed evidence; that the SSDC reviewed the case and recommended the Council’s earlier decision of dismissal of the Claimant and that the Council upheld its earlier decision based on the SSDC’s recommendation. The Council’s decision of dismissal was conveyed to the Claimant. Exhibits D14A, D14B, D12, D16, D17 and D15 namely: the Claimant’s letter of appeal dated 15/04/2013, reply of the Registrar to Claimant’s request for appeal dated 08/05/2013, invitation to appear before the Council dated 27/02/2017 and the Minutes of the 173rd Meeting of Council, the SSDC Appeal Report, the Resolution of Council dated 05/08/2018 and the letter of Registrar to the Claimant conveying the decision of the Council were admitted in evidence to support the case of the Defendants.

18. The further testimony of the Defendants is that after the Claimant was dismissed, he fraudulently in connivance with some members of staff of the 1st Defendant’s Bursary Department received salary from the Defendant from February 2013 – April 2017.

The Defendants’ witness further testified under cross- examination, that the Defendants afforded the Claimant adequate opportunities to defend himself. The Defendants maintained that the Claimant was properly and procedurally dismissed having been issued queries, invited by the committee set up by the 1st Defendant to investigate the allegations leveled against him and after the report of the investigating committee was reviewed on appeal on the Claimant’s request.

19. The crux of the Claimant’s case and upon which the determination of his claims turns, is whether the Defendants complied with the procedure laid down by the Ahmadu Bello University Law Cap. A 14 Laws of the Federation of Nigeria 2004 and the Conditions of service, for his dismissal. The Claimant alleged that contrary to the Regulations governing the conditions of appointment of Senior Staff of the 1st Defendant (Exhibit C12) he was denied fair hearing at the disciplinary committee sittings.

The submission of the learned Claimant’s counsel on the issue of fair hear is that the observance of fair hearing in trials is not a question of whether any injustice has been occasioned on any party due to want of hearing but rather the question is whether the opportunity of hearing was afforded for the parties to be heard. Learned counsel’s further argument is that the Claimant was not given opportunity to be heard which contravenes the provisions of Statute 8 (5) (a) of the ABU Law (supra). Learned counsel relied on the case of Maliki Vs Michael Imodu Institute of Labour Studies [2009] All FWLR (Pt 491) 979 in support of his submission.

Learned counsel for the Defendants’ submission on the issue of fair hearing is that where the evidence adduced at the trail or conduct of any proceedings clearly revealed that the principles of fair hearing was observed, it is for the person alleging non-observance to adduce to the contrary. He cited the cases NNPC Vs Clifco Nig. Ltd [2011] 4 SCNJ 197; UBN Vs Astra Builders Ltd [2010] 2-3 SC (Pt 1) 59 in support of his propositions.

20. Permit me at this point to resolve one or two issues that were raised by learned Claimant’s counsel in his written address. Learned counsel had posited that the Report of the SSDC – Exhibit D11 relied upon by the Defendants in dismissing the Claimant was not duly authenticated by any member of the Committee. Learned counsel vigorously argued that such document not properly authenticated has no evidential value and renders the document worthless.  In support of his propositions, learned counsel cited inter-alia the cases of Global Soap Detergent Industry Ltd Vs NAFDAC [2011] All FWLR (Pt 599) 1025; Ironkwe Vs UBA Plc [2017] All FWLR (Pt 879) 650.

It seems the learned Claimant counsel missed this argument. Exhibit D11 in reference is the 25th Report of the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (SSDC). In relation to the said exhibit, the Defendants in paragraphs 24 and 25 of the Statement of Defence averred as follows:

24. That the Defendants’ SSDC Report to the Council recommended the termination of appointment of the Claimant to the 1st Defendant (Governing Council). The Extract of the SSDC Report to the 1st Defendant shall be relied upon.

25. That the 1st Defendant approved the dismissal of the Claimant in its 151st (Regular) Meeting held on the 25th and 26th January 2013. The Extract of the Minutes of the 1st Defendant’s 151st (Regular) Meeting shall be relied upon.” (Underlining for emphasis)

The documents pleaded by the Defendants are extracts of the SSDC Report and the Minutes of the Governing Council. Black’s Law Dictionary, 10th Edition at Page 704 defines the word “extract” as: “A portion or segment, as of a writing”.

In other words, it is a portion of Exhibit D11 and not the whole of report of the SSDC that is in evidence. In my view, the exhibit not being the whole report but extracts, the argument of the learned counsel that the document was not authenticated is baseless and his submission on the evidential value of Exhibit D11 is accordingly discountenanced. I so hold.

21. The other issue to resolve bothers on the submission of the learned Claimant’s counsel on the constitution of the members of the SSDC. Learned counsel had strenuously argued that the Defendants did not state in their pleadings the names of the members of the SSDC and further posited that the Committee not being properly constituted lacked the powers to discipline and make recommendation to the Council for the Claimant’s dismissal. I should state that such line of argument shows that counsel does not fully understand the import of the evidential burden placed on the Claimant to prove his case. It is an elementary principle of law that he who asserts must prove. I fail to agree with the learned counsel that the Defendants have the onus to state or prove that the members of the Committee were properly constituted as required by the ABU Law (supra).

Furthermore, it has to be reiterated here that address of counsel does not take the place of evidence. The address of counsel must be based on evidence on record and the legal submission of counsel cannot be a substitute for evidence on record. Attempts made by learned counsel to surreptitiously introduce evidence not on record is unprofessional. The argument of learned counsel on the improper constitution of members of the SSDC is accordingly discountenanced. I so hold.

22. Now, the law which empowers an employer to dismiss an employee is subject to the existence of conditions which must be clearly expressed in the terms of employment. In the instant case, the dismissal of the Claimant must conform to the Statute 8 (5) (a) and (b) of the 1st Defendant’s Law, 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.

In view of its relevance to the determination of this case, it is crucial to refer to the provisions of Statute 8 (5) of the Ahmadu Bello University Law, (supra). I have taken liberty to reproduce same as follows:

“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”.

23. As correctly submitted by learned counsel on both sides, the doctrine of fair hearing is not merely a rhetorical or technical principle. It is indeed a rule of substance. The question is not whether injustice has been done because of lack of hearing but whether a party entitled to be heard before a decision had in fact been given an opportunity of hearing. It is equally trite that before an employer can dispense with the services of his employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of dismissal even when the allegation for which the employee is being dismissed involves accusation of crime.  See: Jirgbagh Vs UBN Plc [2001] 2 NWLR (Pt 396) 11 at 28 - 29; Yusuf Vs Union Bank (Nig) Ltd [1996] 6 NWLR (Pt 457) 632. 
24. As required by the provision of Statute 8 (5) (supra), before a decision can be taken to dismiss an employee as the Claimant in the instant case, 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.

From the facts and evidence adduced by the parties, can the Claimant honestly allege that he was not afforded fair hearing by the Defendants in his dismissing his appointment? 

The evidence on record is that the Claimant received three queries alleging three different acts of misconduct; that he replied the queries; that the Security Department of the 1st Defendant investigated the case; that the case was referred to the Police for further investigation; that based on the recommendation of the 1st Defendant’s Security Department to the Vice Chancellor, the Registrar was directed by the Vice Chancellor to initiate internal disciplinary actions; that he was invited by the Joint Committee of Council and Senate (SSDC); that he was informed or had knowledge of the allegations that were levelled against him; that he participated and made representations both at the SSDC and the Governing Council; that he appealed against the decision of the Council; that based on his appeal, he was invited again to make representations at the SSDC. The documentary evidence tendered by the Defendants to prove that the Claimant was given reasonable opportunity of being heard are: the letters of invitations to the Claimant; the Minutes of the SSDC and Council, the Minutes on the SSDC and Council on review of the Claimant’s case on appeal namely, Exhibits D11, D13, D2, D16 and D17 respectively.

25. As rightly submitted by the learned counsel for the Claimant, the observance of fair hearing in trials is not a question of whether any injustice has been occasioned on any party due to want of hearing but rather the question is whether the opportunity of hearing was afforded for the parties to be heard.  I had crucially reviewed the facts and evidence on record; I am of the firm view that the Claimant was given reasonable opportunity of being heard. The Defendants issued and served on the Claimant the queries containing the different allegations, the Claimant replied the queries and made representations both at the SSDC and Council; he was given further opportunity to be heard and have his case reviewed on appeal.

I should note that by the appeal report of the SSDC in Exhibit D16 at item 8, paragraph 2, a no case was established against the Claimant by the Committee on the alleged offences of theft and sale of ABU Degree certificate on the ground of unavailability of the petitioner and Binta Mohammed. The Claimant was exonerated from the charges and was reinstated to his post and paid all his accrued benefits. The Committee however made a recommendation for his dismissal on the case of criminal conspiracy and forgery of ABU IJMB Results. I should further note that the Claimant admitted under cross-examination that he continued to receive salaries for four (4) years after his dismissal, which is until April 2017. Based on the recommendation of the SSDC for his reinstatement and having received salaries for four years, can it be said that the Claimant was not given opportunity to be heard by the Defendants? My answer to this poser is, emphatic No!

I am therefore satisfied that the Defendants afforded the Claimant fair hearing and  fully complied with the provisions of Statute 8 (5) of the ABU Law (supra) and the disciplinary procedure as contained Section 5 (d) of Exhibit C12 (Regulations governing the conditions of appointment of senior staff). To put it differently, the dismissal of the Claimant’s appointment by the Defendants was lawful. And I so hold.

26. The Claimant has alternatively claimed for an Order directing the Defendants to change the action taken by the Defendants from dismissal to termination of his appointment. Having undertaken an extensive evaluation of the evidence adduced in support and against the main claim, I hereby permit myself to adopt my findings and conclusions in the main claim in holding that the Claimant has not adduced sufficient facts to be entitled to the alternative claim. And I so hold.

27. On the basis of the foregoing analysis therefore, I must and I hereby resolve issues one and two for determination in this suit against the Claimant. It is therefore the conclusion of the Court that the Claimant’s claim lacked in merit, in substance and in probity. The suit shall be and is hereby accordingly dismissed.

ISSUE THREE

28. I now proceed to determine the third issue.

Issue three is to answer the question on whether or not the Defendants have discharged the burden of proving their entitlements to the Counter-Claim. There is no doubt that a Counter-Claim is a separate and distinct claim from the main claim. This is so because even if the main claim fails or is withdrawn or struck out, the Counter-Claim would survive. To put it differently, the same standard of proof required to prove the main claim is also required to prove the counter-claim. See  Attorney - General of Lagos State Vs Attorney - General of the Federation [2004] 12 SCNJ 1; Ogli Oko Memorial Farms Limited & Anor Vs Nigeria Agricultural and Co-operative Bank Ltd & Anor [2008] 4 SCNJ 436.

The Defendant’s claims from the Claimant the sum of N1,000,000.00 being solicitor’s fees for prosecuting the suit.

29. In proof of the claims, the DW1 testified as the sole witness on behalf of the Defendants.

The pertinent question in determining whether this relief can be granted is, whether the claim for legal fees forms part of the Claimant’s cause of action? A relief which a Claimant/ Counter-Claimant in action is entitled, if established by evidence, are those reliefs which forms part of the Claimant/Counter-Claimant’s cause of action. It was held in Guinness Nig. Plc Vs Nwoke [2001] 15 NWLR (Pt 658) 135, that a claim for solicitor’s fee is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between parties. Similarly, in Nwanji Vs Coastal Services Ltd [2004] 36 WRN 1 at 14-15, it was held that it was improper, unethical and an affront to public policy to have a litigant pass the burden of costs of an action including his solicitor’s fees to his opponent in the suit.

Therefore, I think that on the current state of law, a claim for solicitor’s which does not form part of the Claimant’s cause of action can be granted. In the instant case, the claim for legal fees for representing the Counter-Claimant’s action and for defending the Claim does not form part of the action that can be granted. And I so hold. 

Without further ado, the Defendants’ Counter – Claim fails in its entirety. I so hold.

In the final analysis, the Claimant’s claim and the Defendants’ Counter-Claim lack merit and substance and are hereby accordingly dismissed.

Parties shall bear their respective costs.

 

SINMISOLA O. ADENIYI

(Hon. Judge)

04/02/2021

Legal representation:

Mohammed Sani Esq. for Claimant

A. Is’haq Esq., for Defendants