IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT MINNA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 13th March 2025                                                    SUIT NO: NICN/MN/12/2020

 

Between:             

 

Abubakar Ndasabe                                                       -                       Claimant

 

And

   

1. Dr. Abubakar Abdul Dzukogi                                      

2. Governing Council, Federal Polytechnic, Bida                      Defendants

3. The President, Federal Republic of Nigeria

4. Hon. Attorney General of the Federation                    

 

Representation:

A. S. Akaah for the Claimant

U. C. Oparaugo for the 1st and 2nd Defendants, with the brief of I. K. Okatta

 

  JUDGMENT

The claimant commenced this suit by an originating summons filed on 23rd March 2020. In an amended Originating Summons filed on 16th February 2024, the claimant submitted the following questions to be determined by this court: 

1.        Having regard to the clear, lucid and unambiguous provisions of Section 8(6) of the Federal Polytechnics (Amendment) Act 2019, whether the Defendant's re-appointment to serve additional period beyond the one year allowed by law as the Rector of the Federal Polytechnic Bida, Niger State is not unlawful, invalid, null and void.

2.        If the answer to question 1 is in the affirmative, whether the 3rd and 4th Defendants are not under a duty to preserve, protect, implement or otherwise ensure the preservation, protection and implementation of the provisions of Section 8(6) (of the Federal polytechnics (Amendment) Act, 2019 against the 1st Defendant.

 

Upon the determination of the above questions, the Claimant sought the following reliefs:

1.        A declaration that by virtue of the provisions Section 8(6) of the Federal Polytechnics (Amendment) Act, 2019 the 1st Defendant's additional tenure as the Rector of the Federal Polytechnic Bida, Niger State is unlawful, illegal, illegitimate invalid, null and void.

2.        A declaration that the 2nd, 3rd and 4th Defendants are under the duty to preserve, protect, implement and otherwise ensure the preservation, protection and implementation of Section 8(6) of the Federal Polytechnics (Amendment) Act, 2019.

3.        An order compelling the Defendant to refund all salaries and monies earned during the period of additional tenure as Rector, Federal Polytechnic. Bida.

4.        An order compelling the 2nd Defendant to ensure compliance with the orders(s) of this Court

 

CLAIMANT’S CASE

The affidavit in support of the Originating Summons was deposed to by the claimant. He said he is an Academic Staff of the Federal Polytechnic Bida, Niger State and he served as the Chairman of the Academic Staff Union of Polytechnics (ASUP) of the Federal Polytechnic Bida Chapter. His case is that the 1st defendant was first appointed Rector of the Federal Polytechnic Bida on 22nd May 2015 for a term of 4 years by the 3rd defendant and it was during the first tenure of the 1st defendant that the Federal Polytechnics (Amendment) Act, 2019 was passed into law by the National Assembly. The Federal Polytechnic (Amendment) Act 2019 made provisions in relation to the appointment of Rectors as well as Members of the Governing Council into all Federal Polytechnics in Nigeria. By the provisions of Section 8(6) of the Federal Polytechnics (Amendment) Act 2019, the 1st Defendant is not entitled to serve an additional term of tenure as the Rector of the Federal Polytechnic Bida but he can only get an additional 1 year to make up 5 years single term. The 1st appointment of the 1st defendant as Rector of Federal Polytechnic Bida was on 22nd May 2015 and the appointment expired on 21st May, 2019 after the Federal Polytechnics (Amendment) Act, 2019 had been passed into law by the National Assembly and assented to by the 3rd Defendant.

 

The Federal Polytechnics (Amendment) Act, 2019 only provides for a single term of 5 years for a Rector and an additional one year for any Rector who was appointed for the first time under the repealed law. The tenure of the 1st Respondent is to last until 15th February, 2021 when he attained the mandatory retirement age of 65 years. The appointment of the 1st Defendant for the last and second tenure of 4 years was made pursuant to the repealed Federal Polytechnic Act Cap F17. By a letter dated 4th March, 2019, the Minister of Education conveyed the reappointment of the 1st Defendant by the 3rd Respondent as Rector Federal Polytechnic Bida. The 1st defendant was served with another letter dated 9th June, 2020 conveying the directives of the 3rd Defendant reappointing the 1st Defendant to serve out the second tenure after attaining the mandatory retirement age. The 1st Defendant wrote a letter of voluntary retirement dated 10th June 2020 with effect from 10th June, 2020. The 1st Defendant is not entitled to be appointed for a 2nd tenure under the Federal Polytechnics (Amendment) Act, 2019. Thus, the re-appointment of the 1st Defendant by the 3rd Defendant as Rector, Federal Polytechnic Bida, is illegal, unlawful, null and void. The 1st Defendant ceased to be the Rector of Federal Polytechnic Bida as from 10th June, 2020 when he retired voluntarily. The 1st Defendant continued to earn salaries and allowances in addition to other statutory income as Rector, Federal Polytechnic Bida when he ought to have ceased holding the office as Rector, Federal Polytechnic Bida.

 

In the written address in support of the Originating Summons, one issue was distilled for determination. The issue is whether the Claimant is entitled to the grant of the reliefs sought in this suit upon a positive resolution of the questions posed for determination. In arguing the issue, the learned senior counsel for the claimant set out the provisions of Section 8(6) of the Federal Polytechnics (Amendment) Act 2019 and submitted that the Federal Polytechnics (Amendment) Act 2019 was passed into law on 22nd May 2018 while the appointment of the 1st Defendant as Rector for a second tenure was effected on 21st May 2019 after the amendment had been passed into law. A law that has been repealed cannot be considered for the purpose of the appointment of the 1st Defendant for a second tenure. Counsel relied on CHIEF ADEBIYI OLAFISOYE vs. FEDERAL REPUBLIC OF NIGERIA (2004) LPELR-2553(SC). The learned senior Counsel submitted further that where a statute prescribes a way or method of doing a thing, such a way or method must be strictly complied with in order to validly do such thing as doing otherwise will render same invalid. The case of ONJEH vs. MARK (2015) LPELR-25974 was cited in support. It was argued that since Section 8(6) of the Federal Polytechnic (Amendment) Act 2019 has clearly provided the way the 1st Defendant can appoint the Rectors of the Federal Polytechnics, that way and manner is what must guide the President in making such appointment as he has no liberty to deviate from same. The provision Section 8(6)(b) of the Federal polytechnic (Amendment) Act, 2019 is clear to the extent that the 1st Defendant is only entitled to a 1-year extension and no more. It is therefore wrong to retain the 1st Defendant in office beyond 21st May 2020. The 1st Defendant, of his free will, made Exhibit D to take effect from 10th June 2020. The 1st Defendant ought to have vacated the office of Rector, Federal Polytechnic Bida on the said 10th June 2020. In the eye of the law, the 1st Defendant ceased to be the Rector, Federal Polytechnic Bida on 10th June 2020. Counsel relied on APC vs. INEC & Ors (2014) LPELR-24036(SC). It was submitted, in conclusion, that the 3rd Defendant is bound by the mandatory provisions of Section 8(6) of the Federal Polytechnics Amendment Act, 2019.

 

DEFENCE

The 1st and 2nd defendants filed a joint counter affidavit and written address to the amended Originating Summons on 2nd July 2024 while the 3rd and 4th defendants did not file a process in defence of this suit. The counter affidavit of the 1st and 2nd defendants was deposed to by George Bialose, a litigation clerk in the law office of the counsel for the 1st and 2nd defendants. In paragraph 4 of the counter affidavit, the deponent said the facts stated in paragraphs 5 to 22 of the counter affidavit were facts he was told by Hassan Alhassan, the Head of the Legal Unit of the Federal Polytechnic, Bida. The deponent proceeded to narrate the facts he said he was told.

 

Section 115 [3] and [4] of the Evidence provide thus:

3.        When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

4.         When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.

                                 

In the counter affidavit of the 1st and 2nd defendants, the deponent narrated facts which are not within his own personal knowledge but facts told to him by a third party. The said Hassan Alhassan, the Head of the Legal Unit of the Federal Polytechnic, Bida is neither the 1st defendant nor the 2nd defendant in this suit. It was also not shown in the counter affidavit that he is a member of the 2nd defendant. The facts narrated in paragraphs 5 to 21 of the 1st and 2nd defendants counter affidavit are facts relating to the appointment and reappointment of the 1st defendant as the Rector of the Federal Polytechnic, Bida. It was not shown that Hassan Alhassan participated in the appointment and reappointment of the 1st defendant as to have had personal knowledge of the facts narrated to the deponent. Again, other than to say the said Hassan Alhassan is the Head of the Legal Unit of the Federal Polytechnic Bida, there is no averment in the counter affidavit to show how Hassan Alhassan obtained the information which he conveyed to the deponent. Also, the circumstances under which the information was given by Hassan Alhassan to the deponent were not stated in the counter affidavit. The mere mention that he is the Head of the Legal Unit of the Federal Polytechnic Bida does not raise the presumption that he is conversant with the facts narrated to the deponent. Accordingly, the facts deposed in paragraphs 5 to 21 of the counter affidavit are clearly hearsay and are inadmissible in law. See sections 37 and 38 of the Evidence Act 2011. See also N.P.A. vs. A.I. CO. [2010] 3 NWLR [Pt. 1182] 487; SAMBO vs. NIGERIA ARMY COUNCIL [2017] 7 NWLR [Pt. 1565] 400.  The consequence is that the depositions in paragraphs 5 to 21 of the counter affidavit of the 1st and 2nd defendants are discountenanced for being inadmissible.  The result is that there is no evidence left in the counter affidavit of the 1st and 2nd defendants to be considered in determining the Originating Summons of the claimant.

 

DECISION

The claimant submitted 2 questions for determination in this suit. These questions constitute the issues I will determine in this suit. Before I consider the issues, let me mention that reliefs 1 and 2 sought by the claimant on the basis of the questions submitted for determination are declaratory reliefs. The basic law is that a claimant has the onus to show that in a declaratory action, he is entitled as per his claim. To this end, he has to succeed on the strength of his own case and not on the weakness of the defendants’ Case. Declaratory reliefs are not granted even on admission by the defendant where the claimant fails to establish his entitlement to the declaration by his evidence. Thus, where a claimant defaults in discharging his onus, his case will be dismissed. See ZACCALA vs. EDOSA [2018] 6 NWLR [Pt. 1616] 528 at 547; DUMEZ NIG. LTD vs. NWAKHOBA [2008] 18 NWLR [Pt. 1119] 361. It implies that the fact that the defendants do not have defence in this suit does not entitle the claimant to automatic success of his claims. The evidence adduced by the claimant must establish his claims before the declarations he sought can be made.

 

ISSUE 1:

In his affidavit evidence, the claimant said the 1st defendant was first appointed Rector of the Federal Polytechnic Bida on 22nd May 2015 for a term of 4 years by the 3rd defendant which expired on 21st May 2019. During the first tenure of the 1st defendant, the Federal Polytechnics (Amendment) Act 2019 was enacted by the National Assembly. Section 8(6) of the Act provides for a single term of 5 years for a Rector and an additional one year for any Rector who was appointed for the first time under the repealed law. By this provision, the 1st Defendant is not entitled to serve an additional term as the Rector of the Federal Polytechnic Bida but he can only get an additional 1 year to make up 5 years single term.

 

Upon the expiration of the first term of the 1st defendant, he was reappointed for the last and second tenure of 4 years pursuant to the repealed Federal Polytechnic Act vide a letter dated 4th March 2019. During this second tenure, the 1st Defendant wrote a letter of retirement dated 10th June 2020 by which he retired from the service of the Federal Polytechnic Bida with effect from 10th June, 2020 but by a letter dated 9th June 2020, the 3rd Defendant approved the 1st Defendant to serve out his second tenure despite attaining the mandatory retirement age. The 1st Defendant ought to have ceased to be the Rector of Federal Polytechnic Bida as from 10th June, 2020 when he retired voluntarily. It is on the basis of the foregoing the claimant contended that the 1st Defendant is not entitled to be appointed as Rector, Federal Polytechnic Bida for a 2nd tenure under the Federal Polytechnics (Amendment) Act 2019 and that the reappointment of the 1st Defendant by the 3rd Defendant is illegal, unlawful, null and void.

 

The claimant instituted this action on 23rd March 2020 and the suit is meant to determine whether the 1st defendant was properly appointed for his second tenure. This suit was instituted when the 1st defendant was barely a year in office when he was reappointed for a second term of 4 years. The second term of office of the 1st defendant expired on 20th May 2023 and he has since concluded the tenure and left office. This matter unfortunately lingered till today, which is almost 2 years after the 1st defendant has concluded his second term of office. I am of the view that this suit has become academic. Where there is no live matter in an action or a claim to be adjudicated upon or when its determination holds no practical or tangible value or any right or benefit on the successful party, the action or claim is said to have become an academic issue. See ADEKUNLE vs. A.G, OGUN STATE [2018] 9 NWLR [Pt. 1623] 1 at 13, ARDO vs. INEC [2017] 13 NWLR [Pt.1583] 450 at 474-475. In this suit where the term of office being challenged has lapsed, the claimant no longer has any right or benefit to derive from the determination of the questions. In fact, there is no longer any practical value to be derived from the determination of the questions in the Originating Summons. This suit is therefore stale and has become purely academic. It deserves to be dismissed at this point.

 

But for what it is worth, I intend to still determine the questions the claimant brought before the court for determination.

 

The 1st defendant was first appointed the Rector of the Federal Polytechnic Bida on 22nd May 2015 by the 3rd defendant. This appointment was made pursuant to the Federal Polytechnics Act, Cap F17, LFN 2004 which provide in section 8[6] for a 4-year tenure of a Rector and may be reappointed for another 4 years and no more. By this provision, the first 4 years appointment of the 1st defendant expired on 21st May 2019. By a letter dated 4th March 2019, the 1st defendant was reappointed by the 3rd defendant for the second and last tenure of 4 years as Rector with effect from 21st May 2019. The letter is Exhibit B. This second appointment was also made under the provisions of the Federal Polytechnics Act 2004.

 

The Federal Polytechnics Act 2004 was amended by the Federal Polytechnics (Amendment) Act 2019. In paragraph 13 of his affidavit, I heard the claimant say that the Federal Polytechnics Act was repealed by the Federal Polytechnics (Amendment) Act 2019. Perhaps the claimant has not read the Federal Polytechnics (Amendment) Act 2019 before making that assertion. The Federal Polytechnics (Amendment) Act only amended some provisions of the Federal Polytechnics Act. The Federal Polytechnics Act remains the Principal Act while the Federal Polytechnics (Amendment) Act 2019 contains the amendments thereto. See section 1 of the Federal Polytechnics (Amendment) Act 2019.

 

Section 8(6) of the Federal Polytechnics (Amendment) Act 2019 provides as follows:

“The Rector shall-

(a)      hold office for a single term of five years beginning from the date of his appointment and on such terms and conditions as may be specified in his letter of appointment;

(b)      where he was appointed to serve for a term of four years on the commencement of this Act, have his tenure extended for one year to complete the single term of five years in line with paragraph (a);

(c)       where he is serving a second tenure of four years on the commencement of this Act, be deemed to be serving his final tenure;

(d)      have power to exercise general authority over staff and be responsible for discipline in the polytechnic; and

(e)      have his remuneration determined by the National Salaries and Wages Commission.”

 

This provision amends and replaces section 8[6] of the Federal Polytechnics Act 2004. The implication of the amendment is that from the effective date of the amendment, persons appointed Rectors of Federal Polytechnics shall hold office for a single term of five years. That is to say, reappointment has been abolished and the tenure is now 5 years. But in a situation where the person was appointed before the amendment and was serving the first tenure of 4 years, his tenure shall be extended by 1 year to complete the single term of 5 years. Also, where the person was appointed before the amendment and he is serving a second tenure of 4 years, he shall be deemed to be serving his final tenure. What this last part means is that if a person is reappointed under the Principal Act for a second tenure of 4 years before the coming into effect of the Amendment Act, the person is entitled to complete the 4 years second tenure.

 

The commencement date of the Federal Polytechnics (Amendment) Act 2019 was 18th June 2019. The letter reappointing the 1st defendant was dated 4th March 2019 and his reappointment was with effect from 21st May 2019. It is therefore clear that the 1st defendant’s reappointment for his second and last tenure of 4 years had already taken effect before the Federal Polytechnics (Amendment) Act 2019 came into effect. Since the 1st defendant’s reappointment was made under the Polytechnics Act 2004 and before the coming into effect of the Federal Polytechnics (Amendment) Act 2019, the single tenure of 5 years or the 1-year extension provided in the Amendment Act will not apply to the 1st defendant. It was during the second tenure of the 1st defendant that the amendment took effect. The provision of the Amendment Act which is applicable to the tenure of the 1st defendant is section 8[6]c] thereof which provides that where the person appointed as Rector is serving a second tenure of 4 years at the time of commencement of the Act, he will be deemed to be serving his final tenure. In this case, the 1st defendant was reappointed with effect from 21st May 2019 for the second and last tenure of 4 years. This second and last tenure was to expire on 20th May 2023. By the provisions of section 8[6]c] of the Federal Polytechnics (Amendment) Act 2019, the 1st defendant is entitled to exhaust the 4 years of his second and last appointment. The 1st defendant, having been reappointed for a second tenure of 4 years before the coming into effect of the Amendment Act, he is entitled to continue and complete the 4-year second tenure. In my view, therefore, the provisions of section 8[6] of the Federal Polytechnics (Amendment) Act 2019 do not affect the reappointment of the 1st defendant in any way.

 

There is the other issue raised by the claimant as to the retirement of the 1st defendant from service. In paragraphs 12, 15, 16 and 19 of the claimant’s affidavit, it was deposed that the tenure of the 1st Respondent is to last until 15th February, 2021 when he attained the mandatory retirement age of 65 years and he wrote a letter of voluntary retirement dated 10th June 2020 with effect from 10th June, 2020. The claimant also said the 1st Defendant ceased to be the Rector of Federal Polytechnic Bida as from 10th June, 2020 when he retired voluntarily.

 

I have seen Exhibits C and D of the claimant’s affidavit. While the 1st defendant was serving his second tenure of 4 years as Rector of the Federal Polytechnic Bida, he wrote Exhibit D to the Registrar of the Polytechnic to give notice of his voluntary retirement “as a staff of the Federal Polytechnic Bida” with effect from 10th June 2020. The question is whether the 1st defendant’s voluntary retirement from the service of the Federal Polytechnic Bida ends his appointment as Rector of the Polytechnic.

 

First of all, the retirement letter submitted by the 1st defendant was in respect of his service as a staff of the Federal Polytechnic Bida. His service as a staff of the Federal Polytechnic Bida is different from his appointment to the office of Rector of the Federal Polytechnic Bida. While as an employee, he was a civil servant to whom the retirement age in the civil service is applicable, but as a Rector, he was an appointee of the President and subject to the terms of office stipulated in the statute under which he was appointed. The 1st defendant did not retire from his appointment as Rector which is a statuary appointment with fixed tenure of office under the Federal Polytechnic Act. The Act also made provisions on how the office is vacated or how a Rector is removed from office in section 16 of the Federal Polytechnics (Amendment) Act 2019. The process for a Rector to vacate office does not include retirement from service. Unless removed from the office of Rector in accordance with the provisions of the Act, his appointment subsisted until it expired. Thus, when the 1st defendant retired voluntarily from service of the Federal Polytechnic Bida, his term of appointment as Rector was not affected or terminated. His 4 years tenure as Rector continued to subsist until it lapsed on 20th May 2023.

 

The result of the foregoing is that question 1 of the Originating Summons is determined in the affirmative and against the claimant.

 

ISSUE 2:

The outcome of issue 1 has resolved issue 2. Therefore, it is no longer necessary to consider issue 2.

 

Consequently, I hold that the claimant has failed to prove the reliefs he sought in this suit. The suit is dismissed.

 

Parties shall bear their respective costs.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge