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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

DATE: 24TH JULY, 2025                                     

SUIT NO. NICN/ABJ/333/2024

 

 

BETWEEN

 

DR. HENRY AKUCHIE                               -                                                                                                                                    CLAIMANT 

 

AND

 

  1. GREGORY UNIVERSITY, UTURU
  2. GOVERNING COUNCIL, GREGORY 

UNIVERSITY, UTURU                                          

  1. PROF. CELESTINE U. NJOKU                             DEFENDANTS

(VICE-CHANCELLOR, GREGORY

 UNIVERSITY, UTURU)                 

 

 

REPRESENTATION:

A.S. Akaah Esq., for the Claimant

P.A Ajala Esq., for the Defendants                                          

 

                                                 

JUDGMENT

  1. The Claimant took out a Complaints, Statement of Facts, Witness Statement on Oath and other accompanying processes dated the 12th day of September, 2024 and filed on the same date claiming against the 1st to 3rd Defendants as follows:
  2. A declaration that the refusal to award the Claimant the rank of full Professor of Law despite the assurance given to him by the defendants and after having been favourably assessed and recommended for the award, is dishonest, discriminatory and wrongful.
  3. A declaration that the termination of the claimant’s employment in the letter dated 15th January 2024 is wrongful. 
  4. An order to the defendants to immediately implement the recommendation for the award of the rank of full Professor of Law on the claimant and accordingly forthwith award the rank of full Professor of Law to the claimant.
  5. An Order to the defendants to pay the sum of N957,500 (Nine Hundred and Fifty-Seven Thousand, Five Hundred Naira) to the claimant being arrears of the claimant’s salaries.
  6. An order to the defendants to pay the sum of N10,000,000 (Ten Million Naira) to the claimant as general damages for the wrongful termination of his employment. 
  7. An order to the defendants to pay the sum of N5,000,000 (Five Million Naira) to the claimant as compensation for all the unfair labour practices meted to the claimant by the defendants which caused the claimant mental anguish and emotional distress during the employment.
  8. An order to the defendants to pay 10% monthly interest on the sum this Honourable Court deems fit to award in favour of the claimant until the judgment sum is fully liquidated.
  9. Cost of this action.

 

CLAIMANT’S CASE

  1. The Claimant was employed by the 1st Defendant as an Associate Professor in 2021. The Claimant claimed that he was promised a full professorial rank after one year of employment by the Defendants, but instead, he faced discrimination and his employment was eventually terminated in January 2024. It is the Claimant’s claim that the termination of his employment was wrongful, and done in bad faith. Consequently, he claimed that the Defendants owes him unpaid salaries and benefits leading to the institution of this suit.

 

DEFENDANT’S CASE 

  1. The Defendants on 17th day of October 2024 filed their joint statement of defence and stated that claimant was invited for an interview following his application to the 3rd Defendant. That the panel that interviewed Claimant had no powers to make promises to the Claimant outside the letter of appointment. Defendants avers that Claimant was employed as a Reader by the 1st Defendant and attached to the College of Law. That the Claimant was appointed as acting Dean of the College of Law erroneously which led to his removal following an advice by the Council Legal Education to 1st - 3rd Defendants to appoint someone who is a Barrister - at - Law, and is a member of the Nigerian Bar Association.  Thus, seeing that the Claimant never went to Law School, the 1st - 3rd Defendants had to appoint a Barrister as the Dean, College of Law while the Claimant was appointed Associate Dean, College of Law. The Defendants averred that the interview panel has no such power to make such promises of making the Claimant a professor within one year of his appointment in view of the fact that the National Universities Commission guidelines provides that the duration for promoting a candidate to become a professor must be three (3) years of service in the institution. It follows that since Claimant was employed in 2021, he would have been due for promotion to the professorial rank by November 2024 after assessment and consideration for promotion by Committee/Management before onward presentation to the Council (2nd Defendant) for approval.

 

  1. The Defendants accepted that Claimant was placed on redundancy for one month due to his inability to work cordially with his colleagues in the College of Law and that afterwards he was recalled in June 2023 and posted to the Department Sociology in the College of Social and Management Sciences due to Claimant’s degree in Criminology and to equally avoid further rancor with other colleagues of his former College of Law without change in his conditions of service. However, when the 1st -3rd Defendant discovered from investigation that the Claimant alongside other lecturers were having full time lecturing appointment with other universities, memos were sent out by 1st Defendant directing that such staff should either convert to adjunct staff or tender their resignation from the date it was published. That although Claimant wrote the 1st Defendant requesting for conversion of his appointment to part-time or visiting/adjunct lecturer; Claimant was however regularized as a Reader (Associate Professor) in the Faculty of Law, Alex Ekwueme Federal University, Ndufu-Alike Ebonyi State since 23rd of May 2023 wherein he resumed duty on the 6th of June 2023. That upon this discovery, the Registrar was directed to compile a list of lecturers (Staff) who were moonlighting and submit to the 3rd Defendant and out of the five names in the list only the Claimant and one Dr. Valentine Amasiatu were retained by the 1st - 3rd Defendants after much deliberations. The remaining lecturers were relieved of their duties. That Claimant was never assessed with the intention of making him a professor prematurely. That in fact it was the attitude of the Claimant towards the 1st - 3rd Defendant and other staff of the 1st Defendant that led to the termination of Claimant’s appointment on the 15th day of January 2024 vide a letter signed by the Registrar, Dr. Mpamah Chukwuemeka, who was in school for his formal handover. The Defendants equally averred that the National Universities Commission Code of Governance for Private Universities does provide that the Chancellor/Proprietor has no power to terminate employment. They reiterated that the Claimant was given required notice prior to the withdrawal of service as the withdrawal took effect from 1st January 2024 and Claimant was notified on the 18th January 2024 and was paid half of his salary for January 2024.

 

  1. Also, the Defendants adopts paragraphs 1-36 of the statement of defence as 1st -3rd Defendants/Counter Claimants also claim against the Claimant /Defendant as follows; 
    1. A declaration that the termination of the Claimant's employment dated 15th January 2024, but with effect from 1st January 2024, was right and valid.
    2. A declaration that this suit brought against the 1st to 3rd Defendants/ Counter Claimants is malicious.
    3. A declaration that the Claimant is not entitled to the 10% prejudgment interest, as the court does not grant prejudgment interest.
    4. A declaration that the claimant is not entitled to the arrears of salaries as he was employed full time by two separate universities, concurrently, against the NUC, Federal Civil Service Rules, and Labour Law. 
    5. An order of perpetual injunction restraining the Claimant, his agents, privies, attorneys, and other assigns from further acts of harassments, intimidation, and defamation of the 1st to 3rd Defendants/Counter Claimants.
    6. An order compelling the Claimant to pay the sum of N50,000,000 as specific damages for the malicious prosecution, unlawful harassment and defamation against the 1st to 3rd Defendants/Counter Claimants.
    7. An order compelling the Claimant to pay the sum of N10,000,000 to the 1st to 3rd Defendant as general damages.
    8. An order for the Claimant to pay the 1st to 3rd Defendants/Counter Claimants, the sum of N5,000,000 as cost of filling this suit.

 

COMMENCEMENT OF HEARING

  1. On the 7th day of February, 2025 Claimant opened his case, testified on oath as CW1 by adopting his written depositions as his oral evidence in this case. Exhibits Akuchie 1-16 were tendered through him. He was subsequently cross-examined by learned Counsel on behalf of the Defendant. On the 12th day of March, 2025 one Mr. Maliki A. Vincent testified as DW1 for the Defendants by adopting his witness statement on oath as his evidence. Exhibits Maliki 1-5 were tendered through him. DW1 was cross examined by learned Counsel on behalf of Claimant and subsequently discharged and the case of the defence was closed and the matter adjourned for adoption of Final Written Addresses.

 

1ST - 3RD DEFENDANTS’WRITTEN SUBMISSION 

 

  1. On the 2nd day of April 2025, learned Counsel for the Defendants filed his final written address wherein Counsel on behalf of the Defendant formulated sole issue for the determination of this Court viz

 

Whether the Claimant has shown reasonable cause of action as to entitle him to all the reliefs sought.

 

  1. On the sole issue learned Counsel submitted that the Claimant in this suit has not disclosed any reasonable cause of action which can necessitate the institution of this suit as there is no act or omission on the part of the Defendants. He placed reliance on the case of Sahinmi v. Gov. Lagos State [2006] 10 NWLR (Pt. 987) 1. Counsel equally posited that it is trite that a breach of contract is committed when a party to the contract, without lawful excuse, fails or neglects or refuses to perform an obligation the party undertook in the contract, or incapacitates himself from performing the same or in any way backs down from carrying out a material term. He cited in support of his assertion the case of Best (Nig.) Ltd v. B.H. (Nig,) Ltd. [2011] 15 NWLR (Pt. 1239) 95 SC. It is equally the submission of Counsel that the Claimant, through his statement of facts, and reliefs sought, does not have any cause of action against the Defendants. Firstly, in considering the nature of contractual relationship between the Claimant and the 1st Defendant, it is important to first identify the categories of contract of employment, that is (a) Master and servant; (b) Servant holding office at the pleasure of the employer; and (c) Employment regulated or governed by statute, otherwise known as having statutory flavour. That a contract of master and servant may be subject to either statutory or common law rules or both. While, an employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. He relied on the case of F.M.C Ido-Ekiti vs. Alabi [2012] 2NWLR p.411 (CA), Olaniyan vs. University of Lagos (No. 2) (1985) 2 NWLR (Pt. 9) 599 and Shitta-Bey vs. FP.S.C. [1981] 1 SC 4. Continuing, he posited that in the case of K.S.J.S.C. vs. Tolani [2019] 7 NWLR (Pt. 1671) 382 SC; it was aptly stated that, an employment is said to have a statutory flavour when the appointment and termination or discipline of employee is governed by statutory provision. In other words, where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions such contractual relationship can be said to have statutory flavour. He placed reliance on the case of University of llorin Teaching Hospital Management vs. Avide [2005] 15 WRN 113; C.B.N v. 1gwillo [2007] 14 NWLR (Pt. 1054) 393; Imoloame vs. W. A. E.C. [1999] 9 NWLR (Pt.265) 303; Olaniyan v. Unilag (No.2) [1985] 2 NWLR (Pt. 9) 599. Counsel stated that from the facts of the case, we can see that the Claimant was employed by the 1st Defendant. The 1st Defendant is a Limited Liability Company, registered with the Corporate Affairs Commission (CAC) and operating as a Private University, in Nigeria. The 1st Defendant, being, a body corporate is also governed by its body of laws, known as; “Gregory University Law and Regulations”. He placed reliance on Exhibit Akuchie 2 and posited that the nature of contract of employment between the Claimant and the Defendants, falls solely within the confines of master and servant relationship. He urged the Court to so hold. In furtherance to the above Counsel iterated that the position of the law is clear, that a master and servant relationship is created by a contract of service, where one party (the servant) agrees to work for the other party (the master) in exchange for wages or other forms of compensation. The master has the right to control and direct the servant's work, including the power to dictate the manner, time, and place of work. The servant is obligated to perform the work/job agreed-upon, while the master is obligated to provide compensation and a safe working environment, and in return, the servant owes a duty of fidelity and obedience to the master, which means the servant must act in the best interests of the master and follow their instructions. He cited in support of his position the case of Ekiti State vs. Akinyemi [2011] 17 NWLR (Pt. 1276) 373 CA; Amasike Reg. Gen., C.C. [2010] 13 NWLR (PT. 1211) 337 and Olufeagha v: Abdul-Raheem [2009] 18 NWLR (Pt. 1173) 385 SC. Similarly, in F.M.C Ido-Ekiti v Alabi [2012] 2 NWLR P.411 (CA), it was stated that, a contract of master and servant may be subject to either statutory or common law rules or both. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all, but if he does so in a manner not warranted by the particular contract under review, he must pay damages for his breach. 

 

  1. Counsel went on and contended that in the case of E.M.C. Ido-Ekiti vs. Olajide [2011] 11 NWLR (Pt. 1258) 256 CA. it was stated that; in employments governed by statute, the procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which the parties agreed to be master and servant. Also, in Oforishe vs. N.G.C. Lid. [2018] 2 NWLR (Pt. 1602) 35 SC. It was expressly stated that; a private limited liability company or any employer of labour does not have any obligation to retain the services of any unwanted employee and may terminate the appointment of the employee without any reason. The remedy available to such employee for any breach of the employee's contract of employment lies in damages only. That parties are bound by their contract, and we respectfully submit that the contract the Claimant entered into with the Defendants is governed by the Gregory University Law and Regulations, and we urge your Lordship to so hold. 

 

  1. Continuing learned Defendants’ Counsel denies that the termination of the Claimant’s employment is wrongful and stated that it was as a result of redundancy that the Claimant’s employment was in fact terminated. He relied on Exhibit Akuchie 7. He reiterated that in the instant case, the Claimant was first given a letter of redundancy, on the 26th of April, 2023, and afterwards, recalled on the 16th of June, 2023, to resume work in the department of Sociology, only for the Defendants to realize that during the period of redundancy, the Claimant had already secured a job with Alex Ekwueme Federal University. Although the Claimant, during trial, claimed that he had a temporal employment with Alex Ekwueme University, and that he applied to the 1st Defendant for his employment status to be changed from full time to adjunct (part-time), however, Counsel  submitted that due to financial constraint, the 1st Defendant did not have the luxury to retain adjunct staff due to ongoing redundancy of the 1st Defendant resulting in organizational restructuring as a result of economic downturns bedeviling the nation. That during trial, particularly during cross-examination of DW1, DW1 informed this Court that no formal notice of termination was given to the Claimant, because there was a general notice of redundancy given to every staff of the 1st Defendant (university), thus dispensing with the need for the one-month notice in lieu, in consonance with the terms of contract of employment contained in the Gregory University Law and Regulations.

 

  1. Despite the foregoing, and assuming without conceding to the Claimant’s claim, that the termination of employment was wrongful, he submitted that the Claimant have not placed anything/evidence before this Court to show that the termination of his employment was wrongful. He placed reliance on the case of F.M.C. Ido-Ekiti v. Olaride (supra); Zidech vs. R.S.C.S.C. (2007) 3 NWLR (Pt. 1022) 554; Azenabor v. Bayero University. Kano [2009] 17 NWLR (Pt. 1169) 96 CA. Akinfe v. U.B. A. Plc [2007] 10 NWLR (Pt. 1041) 185; Momoh v. C. B.N [2007] 14 NWLR (Pt. 1055) 504 and Oforishe v. N.G.C. Ltd. [2018] 2 NWLR (Pt.1602) 35 SC. 

 

  1. Thirdly, it is the submission of Counsel that the Defendants did not promise to promote the Claimant to a full professorial rank after one year of employment. That in paragraph 5 of the Claimant’s Witness Statement on Oath, the Claimant stated that he was invited for interview by the Defendants, and that after reviewing his records, the Defendants offered to employ the Claimant as an Associate Professor (Reader) upon the assurance that he would be assessed for full Professorial rank after one year of his appointment. However, during trial, the Claimant failed to adduce any evidence to support the foregoing claim. More so, a study of the terms as contained in Exhibit Akuchie 2 and 3 (i.e. Appointment letter and Acceptance letter), will reveal that it was never stated, whether directly or impliedly, that the Claimant will be assessed for Professorial rank after one year of service to the 1st Defendant, neither was the minute of meeting taken during the Claimant’s interview by the defendants pleaded and tendered in evidence before this Court to prove that assertion.   He submitted that based on the foregoing, there is no evidence before the Court which supports the Claimant’s claim for assessment for professorial rank, and he urged the Court to so hold.

 

  1. Counsel also submitted, without prejudice that assuming without conceding that such agreement even existed between the Claimant and the Defendants, it will most definitely be invalid, as the Claimant was not even qualified to be assessed for Professorial rank as at the time of his termination from the 1st Defendant. He relied on the provision of Article 5.4 of the National University Commission Draft (Benchmark Guidelines for Appointment and Promotion of Academic Staff in Nigerian Universities).  Counsel submitted that the highest rank the Claimant attained, prior to his application to the 1st Defendant; was Senior Lecturer. The Claimant only became a Reader/Associate Professor, only, after his employment with the 1st Defendant. The Claimant was also, only in the said employment of the 1st Defendant from 3rd of November, 2021 to 1st of January, 2024 prior to the termination of his employment due to redundancy. That a detailed look at the provisions of Article 5.4 of the National University Commission Draft (Benchmark Guidelines for Appointment and Promotion of Academic Staff in Nigerian Universities), clearly reveals the phrase “shall have spent a minimum of three years”, and it is instructive to indicate that the word “shall” which was used in the phrase, literarily translates to “must”. In light of the foregoing, My Lord, we humbly submit that since the Claimant failed to meet up with the stipulated criteria for appointment of full professorial rank, he is therefore not entitled to be assessed and awarded the professorial rank by the Defendants, and he urge Your Lordship to so hold.

     

  1.  It is also contention of Counsel that the Claimant was given adequate notice of termination, as required by the university's policies and procedures, as a general notice of restructuring was issued to all staff of the 1st Defendant, including the Claimant, thus dispensing with the need to issue a one-month notice in lieu. Also, as succinctly stated by DW1 during cross-examination, the Claimant was issued a letter of withdrawal of service on the 15th of January, 2024, with effect from the 1st of January, 2024, because that was when the Claimant was available to be served by the Defendants, especially considering that the said period was a holiday period (Christmas and New year holiday). Moreover, it is pertinent to add that similar procedure was followed when the Claimant was appointed by the 1st Defendant. Reference is made to Exhibit Akuchie 2 (Offer of Appointment), wherein the said document was dated 3rd November, 2021, whereas the Claimant’s appointment took effect from 1st November, 2021. Thus, Counsel strongly contend that, if the Claimant was fine with his offer of appointment, carrying a retrospective date, he submits that the Claimant, be precluded from faulting the date on his letter of withdrawal of service, as wrongful, and we urge this Court to so hold. Counsel oppose the Claimant's demands for payment of salaries in arrears and benefits and submitted that these claims are unfounded and unreasonable and that it is also pertinent to add that nowhere in the Claimant’s pleading nor during trial, did the Claimant show this Court the way and manner the 1st Defendant paid him his salary. The Claimant failed to exhibit crucial documents like his pay slip, bank account statements, etc, in order for this Court to rely upon in determining the exact month the Claimant stopped receiving his salary from the Defendants. Similarly, he reiterated the time tested principle of trial that a Claimant would succeed on the strength of his case, and not on the weakness of the defense of the Defendant. Consequently, failure of the Claimant to attach any proof as to the way and manner his salary was being paid by the Defendants, is detrimental to his case, and we urge this Court to so hold.

 

  1. That the Defendants counterclaim for damages for malicious prosecution, breach of contract, against the Claimant, since the Claimant failed to fulfill his obligations as an employee of the university resulting to harm to the 1st Defendant’s reputation and operations. He urged the Court to discountenance the Claimant's claim for damages, while restating that damages, if to be considered, should be limited to the amount stipulated in the contract between the Claimant and the Defendant, and since there is no visible contract before this Court, he submit that the Claimant’s claim for damages is bound to fail. He also urged this Court to disregard the Claimant's claims for mental anguish, emotional distress and other non-pecuniary damages as such are not recoverable under the contract. More so, fact was pleaded in the Claimant’s writ, nor placed in evidence by the Claimant before this Court, during trial, to show that the Claimant suffered from such mental anguish and emotional stress. He relied on the case of Nigerian Dredging & Marine Ltd Vs Gold [2007] ALL FWLR (Pt.355) 505 at 519. That the Claimant is not entitled to arrears of salaries as he was already in employment with another institution (Alex Ekwueme Federal University) despite still being under the employment of the 1st Defendant. Furthermore, my Lord, we respectfully submit, that the Claimant did not comply and secure the necessary approval from the 1st Defendant, to convert from full time lecturer to adjunct. See Exhibit Maliki 5 (Internal Memo). Reference is also made to the response of DW1 during cross-examination when DW1 stated thus: “By Exhibit Maliki 5 Claimant applied for conversion to adjunct appointment. The Vice Chancellor (V.C) approved the recommendation in Exhibit Maliki 5 with a caveat to the effect that the Vice Chancellor’s approval has to be sent to the Chancellor of the 1st Defendant for approval before it is communicated to the Claimant.” The foregoing procedure, he submitted was not complied with. Noting that despite not completing the foregoing procedure, the Claimant continued to accept salaries from both institutions (i.e. the 1st Defendant and Alex Ekwueme Federal University), hence the reason for non-payment of the Claimant’s salary. However, the Claimant was paid the sum of Five Hundred Thousand Naira (N500,000.00) by the 1st Defendant prior to terminating his contract. It is also pertinent to state that the 1st Defendant was officially notified of the Claimant’s appointment with Alex Ekwueme Federal University in January, 2024 (Exhibit Maliki 3), however, the 1st Defendant was aware of the said appointment since 2023. Reference is made to Exhibit Maliki 5 (Notice of Moonlighting and Internal Memo). Thus, Counsel posited that the Defendants find it disheartening and unbelievable that the Claimants will sue the Defendants on these frivolous grounds. More so, the Claimant continue to harass and defame the Defendant for clearly no wrong done to him. In conclusion, it is the position of Counsel that it is indeed a notorious fact that he who alleges must prove, and failure of the Claimant to prove all his claims as contained in the originating processes, simply means that there was no breach of contract between both parties. He urged the Court to so hold. 

 

  1. It is the contention of Counsel that the defendants liability is limited by the terms of the Claimant's employment contract, and since the Claimant failed to place before this Court, the employment contract, between him and the Defendants, neither was any mention nor reference to the said employment contract, thorough out the entire gamut of the Originating processes filed by the Claimant, and also during trial, we therefore, urge this Court to absolve the Defendants of any form of liability, whatsoever, and dismiss the case of the Claimant with substantial cost, in favour of the Defendants.

 

CLAIMANT’S WRITTEN SUBMISSION

 

  1. On the 23rd day of April 2025, learned Counsel for the Claimant filed his final written address wherein Counsel on behalf of the Claimant formulated two issues for the determination of this Court viz
  2. Whether the claimant has proved his claims and entitled to be granted the claims sought?

 

  1. Whether the counter claims of the defendant are not liable to be dismissed for lacking in merit and incompetent?

 

  1. On issue one it the position of learned Counsel that from the reliefs sought by the Claimant, the facts pleaded in the statement of facts and the evidence adduced by the claimant, his complaints in this case include: Wrongful termination of his employment, Refusal and failure to award him the rank of Professor in breach of agreement, None payment of arrears of salaries, and Unfair labour practices by the Defendants against the Claimant. That the arguments on this issue of this address shall be focused on these heads of claim by the Claimant with a view to illustrate to the Court that the Claimant has proved his claims and accordingly entitled to judgment.

 

 

  1. Regarding wrongful termination of employment. Counsel stated that one of the allegations made by the Claimant against the termination of his employment is that his employment was terminated without notice and without payment of salary in lieu of notice. The letter of termination is dated 15th January 2024 but contained that the Claimant’s employment was terminated retrospectively since 1st January 2024. He referred the Court to paragraph 21 of the statement of facts wherein the Claimant received the letter on 18th January 2024. HE further posited that Claimant was entitled to notice of termination of his employment or payment of salary in lieu of notice but, in his case, the letter of termination was made to terminate his retrospectively from 1st January 2024 and that he was not given notice before his employment was terminated neither was Claimant paid salary in lieu of notice. That although there is no express term in the claimant’s employment letter for termination of the employment by notice, it is a statutory obligation of employers in section 11 of the Labour Act to terminate employment of employees by notice. That the Courts have also held in plethora of decisions that where the contract of employment is silent as to the required notice for termination of the employment, the courts will imply that a reasonable notice is necessary. He placed reliance on the case of Honika Sawmill [Nig] Ltd v. HOFF [1992] 4 NWLR [Pt. 238] 673 AT 682; AKUMECHIEL V. B.C.C. LTD [1997] 1 NWLR [Pt. 484] 695 @ 703. Therefore, the 1st and 2nd Defendants are under obligation to terminate the Claimant’s employment by notice or to pay the salary in lieu of notice. He went on to state that during cross examination, DW1 confirmed that the standard practice in the 1st defendant’s employment is to pay one-month salary in lieu of notice and he equally confirmed that the Claimant was not paid salary in lieu. It is implied from the evidence of DW1 that it is the practice in the service of the Defendant for the Defendants to give one-month notice or pay on month salary in lieu to terminate employment of staff of the 1st Defendant. But in this case, the Claimant was not given one-month notice and was not paid one-month salary in lieu of notice. The result is that the Claimant’s employment was terminated wrongfully when he was not given one-month notice or paid one-month salary in lieu before his employment was terminated. It is also the contention of Counsel that that Claimant’s letter of termination was signed by a person without authority to sign same. He stated that the termination letter was signed by Dr. Mpama Chukwuemeka in his designation as Registrar (Ag) but as at the date of the letter, Dr. Mpama Chukwuemeka had been removed from office as Registrar of the 1st Defendant and he was no longer in the employment of the 1st Defendant as Registrar to have signed the Claimant’s termination letter. In cross examination, DW1 stated that he became the Registrar of the 1st Defendant on 15/1/2024 which is the same day of the termination letter but the person who signed the termination letter is Dr. Mpama Chukwuemeka in his designation as Registrar. The letter was not signed on behalf of DW1 as the Registrar. That is to say the termination letter was signed by a person who was not the Registrar of the 1st Defendant or in the employment of the defendants as at the date of the letter. This also renders the termination of the claimant’s employment wrongful. According to Counsel another complaint of the Claimant against the termination of his employment is that his employment was terminated by the person who had no powers to terminate his employment. In the termination letter, it was stated that the termination of the Claimant’s appointment was on the directive of the Proprietor/Chancellor of the 1st Defendant. That by the NUC Code, the organ with power to discipline or terminate the employment of staff of the 1st Defendant is the Governing Council of the 1st Defendant and not the Proprietor or Chancellor of the 1st Defendant who had no powers in the NUC Code to terminate employment of staff of the 1st Defendant or in the management of staff affairs. He placed reliance on Exhibit 16 particularly paragraphs 3,0, 10.1 to 10.1.4. That in paragraph 5.1 of the NUC Code, the 2nd Defendant is given the responsibility of the governance of the 1st Defendant and its duties or functions include the appointment of all members of staff of the 1st Defendant and exercising disciplinary control over staff of the 1st Defendant. He referred the Court to paragraphs 5.3.12 and 5.7.3.2. Counsel stated that it is trite that where a person is given power to appoint a person either to an office or employment, the power includes power to also remove such person so appointed. He cited in support of his position Section 11 of the Interpretation Act. Accordingly, the organ with power to discipline or terminate the employment of staff of the 1st Defendant is the Governing Council of the 1st Defendant. In this case, it was the Proprietor or Chancellor of the 1st Defendant who gave the directive for the termination of the Claimant’s employment and not the Governing Council. Thus, Claimant’s employment was therefore wrongfully terminated. Counsel equally pointed out that the Defendants witness did not adduce evidence to controvert or refute the evidence given by the Claimant with respect to his complaints of the wrongfulness in the termination of his employment. In view of the foregoing, the Claimant has proved that his employment was wrongfully terminated by the Defendants. It is trite that employee whose employment is wrongfully terminated is entitled to damages for the wrongful act of the employer. He urge Court to find in favour of the Claimant and grant his claims in reliefs 2 and 5 sought in the Complaint.

 

  1. It the position of Counsel in respect of breach of agreement to award professorship despite favorable assessment that the case of the Claimant is that he applied for the position of Professor of law but the agreement to employ him as Associate Professor in the first instance after which he will be assessed for the full Professorial rank after a year of his appointment was reached between him and the interview panel of the defendants. It was based on the agreement that he was issued the appointment letter in Exhibit 2 appointing him as Associate Professor. Coincidently, DW1 stated in cross examination that he was a member of the interview panel in his capacity as the secretary of the panel and that the Claimant’s appointment as Associate Professor was part of the resolutions reached in the interview. By this evidence in cross examination, DW1 confirmed the claimant’s evidence that part of his agreement with the defendants was to first appoint him as Associate professor. DW1 has clearly also confirmed that there were other agreements reached in the interview other than appointing the claimant as Associate Professor. According to the claimant, these other agreements include assessing the claimant for the full Professorial rank after one year of his appointment. Although DW1 deny this agreement but he admitted in cross examination that he took minutes of the interview session and said the minutes contain summaries of the interview. He however failed to produce the minutes of the claimant’s interview in evidence in this case. Counsel posited that the minutes of the interview is vital evidence in this case to show what was discussed and agreed between the panel and the Claimant. The Defendants who have the minutes failed to produce it in Court. The implication is that they know its content will not support their case. It is trite that where a party withholds a document which is in his possession and could be produced to assist the Court in the determination of the case, the Court is to presume that the document is against or unfavorable to the interest of the party withholding it. He relied on section 167 [d] of the Evidence Act 2011 and the case of Bakari V. Ogundipe [2021] 5 NWLR [PT. 1768] 1 AT 63 [SC]. He reiterated that the position the Claimant applied for was Professor of Law and he was interviewed for this position. His appointment letter also confirmed in the first paragraph that he did apply for appointment as Professor of Law. Thus, for the Claimant to have ended up being appointed as Associate Professor suggest there was an event which informed the changes. That event, as stated by the claimant, was the agreement for him to take the offer of Associate Professor and to be assessed for Professorship after 1 year. He submitted that the Claimant proved that there was an agreement between him and the 1st Defendant’s interview panel to employ him as Associate Professor in the first instance after which he will be assessed for the full Professorial rank after 1 year and it was by that reason that he was appointed as Associate Professor.

 

  1. Counsel went on and posited that in paragraphs 9 and 15 of the statement of defence, the Defendants aver that the panel which interviewed the claimant had no powers to make the promise of the Claimant being assessed for full professorship after 1 year to the Claimant but the Defendants did not deny the fact that they empanelled the panel and gave the panel the powers to interview the Claimant for appointment. They equally did not also deny the fact that the panel acted on behalf of the Defendants. Thus, the agreements reached by the panel with the Claimant are binding on the Defendants. He contended that after 1 year of Claimant’s appointment, the Defendants failed to assess the Claimant for promotion to Professor until November 2023 when the 3rd Defendant instructed the Claimant to send his documents and other scholarly outputs for full professorial assessment which the Claimant did and was also assessed favorably by two eminent Professors of Law who recommended him to the Defendants for award of the rank of Professor. He placed reliance on Exhibits 11 and 12 and paragraph 24 and 25 of the statement of defence where the Defendants admitted that the assessment of the Claimant was done and it was done in favour of the Claimant. On the contention of the Defendants vide its paragraphs 15, 16, 24, 25 and 31 of the statement of defence that there is a National Universities Commission Guidelines or Rules which recommend 3 years of service in an institution/university before being eligible for promotion to the rank of Professor for academic staff. Counsel posited that the only part of the evidence of DW1 touching on the issue of awarding professorship after 3 years of service is in paragraph 4[c] of his deposition and that majority of the averments in paragraphs 15, 16, 24, 25 and 31 of the statement of defence were not supported by evidence. This is in addition to the fact that the evidence in paragraph 4[c] of the deposition of DW1 is conflicting with the averments on paragraphs 15, 16, 24, 25 and 31 of the statement of defence as to the particular instrument of NUC which prescribes the 3 years of service before promotion to full Professor.

 

  1.  Again in paragraph 15 of the statement of defence, the Defendants refer to NUC Guidelines but pleaded NUC Regulation, while in paragraphs 16 and 24 of the statement of defence, the Defendants referred to NUC Rules. In paragraph 25 of the statement of defence, the Defendants turned around to refer to the NUC Act 1974. Now, in paragraph 4[c] of his deposition, the Claimant referred to only NUC Regulation. He reiterated that the pleadings and evidence of the Defendants are not consistent and have accordingly created doubt in their allegation that promotion to full professorship is after 3 years of service in an institution/University noting that the purported NUC Guidelines or Regulation or Rules, if at all there is any such document in existence, are not legislations or statutes which this Court can take judicial notice of under section 122 [1] of the Evidence Act 2011. Accordingly, for the Court to be able to consider them or any of them in determining the allegation of the Defendants, the Defendants are obligated to tender same in evidence, just like the Claimant did by tendering the NUC Code, Exhibit 16, in evidence since it is not a document which the Court can take judicial notice of. He referred the Court to Section 122[4] of the Evidence Act. It is therefore the submission of Counsel that the Defendants failed to prove that the Claimant is expected to be in the service of the 1st Defendant for 3 years before he can be assessed or promoted to full professorship. That soon after the Claimant was assessed favorably and he was expecting to be finally awarded the rank of Professor, he received the letter of 15th January 2024 terminating his appointment. That the Defendants having seen the positive assessments and the recommendations decided to deny the Claimant the award and the worst way they decided to do that was to terminate his appointment which fact DW1 confirmed during cross examination when he said the Claimant’s assessment was stopped when his employment was terminated. Learned Counsel submitted that the conducts of the Defendants for failing to fulfill their agreement of assessing the Claimant for award of the rank of Professor after 1 year of his appointment and for terminating the Claimant’s appointment soon after he was fully assessed for award of the rank of Professor is dishonest, discriminatory and wrongful. On the whole Counsel posited that this Court is a Court of equity with powers to grant equitable reliefs including specific performance of contractual agreement and that the Claimant having satisfied his own part of the agreement, the Defendants should be compelled by this Court to implement the assessment report and the recommendations by awarding the Claimant the rank of Professor. He submitted that the Claimant has proved reliefs 1 and 3. He urge the Court to grant same.

 

  1. On clams for arears of salary, Counsel posited that it is the case of the Claimant that his monthly salary was the sum of N265,000 and he was not paid salary for the months of August, September, October, November and December 2023 which is 5 months in the sum of N1,325,000 but in December 2023, the Defendants paid him the sum of N500,000 and since then to date, the balance of his salary arrears have not been paid to him. Counsel equally contended that Claimant also worked for the Defendants up to 18th January 2024 when he was given the termination letter and accordingly earned half of his salary for the month of January 2024 in the sum of N132,500 making the total salary owed the Claimant the sum of N957,500 which is Claimant’s claims vide his relief 4 of the Complaint. The Defendant vide its paragraph 34 of the statement of defence admitted they did not pay the Claimant for the months stated by the Claimant. They also admitted they paid only N500,000 to him in December 2023. See also what DW1 stated in paragraph 4 [k], [n] and [p] of his deposition.  According to Counsel, the Defendants did not dispute the amount stated by the Claimant as his monthly salary and the averments of the Defendants and the evidence of DW1 confirms the case of the Claimant about Claimant’s outstanding salaries. It is therefore not in dispute that the Defendants owe the Claimant the balance of his salaries for the months of August to December 2023. That although the Defendants claim that the Claimant’s salary was not paid because of alleged moonlighting but the Claimant’s employment was terminated only on 15th January 2024 which means that the Claimant was an employee of the Defendants until the time of termination of his employment consequently, Claimant is therefore entitled to his salaries up to the time of termination of his employment, including salary up to the date of termination. Again, the defendants further claim that the claimant was paid half salary for the month of January 2024 but they did not remember that it is their case that the termination was effective 1st January 2024. How can they claim to pay half salary for January when, according to them, the claimant was terminated from 1st day of January? The answer is clear. The Defendants are not truthful. In any case, when the claimant said he was not paid salary for the month of January 2024, the burden of proof of payment is on the Defendants which they failed to discharge as they did not produce evidence of payment of any sum as salary to the Claimant in January 2024. He submitted that the Claimant has proved that he is owed arrears of salary to the tune of N957,500. We urge the Court to grant relief 4 sought by the Claimant.

                                                                                                     

  1. Regarding discrimination and unfair labour practices, Counsel contended that the Claimant is also aggrieved by the several acts of discrimination and unfair practices meted out to him by the defendants from the time of his employment to the time of termination of his employment. The case of the Claimant reveals that the Defendants fraudulent deceived him to accept appointment as Associate Professor using the ploy of promoting him to full rank of professor within a year of his appointment and when the Claimant was eventually about to be so promoted after 2 years, the defendants suddenly terminated his appointment. Again, the Claimant was appointed Acting Dean of the College of Law in April 2022 vide Exhibit 4 and barely 1 month later, he was demoted to Associate Dean vide Exhibit 6 because of the laudable suggestions for the College of Law he proposed to the Defendants in Exhibit 5 was seen in some quarters as an expose of their incompetence. He went on to state that there is also the act of the Defendants in putting the Claimant on redundancy from April 2023 to June 2023 without any justification. That the 1st defendant never declared redundancy and was not undergoing redundancy at the time. Similarly, it is however obvious from the evidence of DW1 that the Claimant was actually forced out of the College of Law on the guise of redundancy because of alleged reports of conducts of the Claimant in the College. It is the position of Counsel that until the redundancy letter, the Claimant was never queried or warned at any time for any of the allegations. He was also not accused of any such conducts in the redundancy letter. It is clear however that the motive of the Defendants was to remove the Claimant from the College of Law and not on any real situation of redundancy. This fact was confirmed when the Claimant was recalled, he was instead assigned to sociology department instead of the College of Law for which he was appointed. The employment contract between the Claimant and the Defendants was specifically to be performed in the College of Law of the 1st Defendant. It was therefore wrongful for the Defendants to remove the Claimant from the College of Law and relegate him to a department outside the agreement. That all these acts of the Defendants are acts of discrimination against the Claimant. He urge the Court to grant relief 6 sought by the Claimant.

 

  1. On the allegation of moonlighting, Counsel contended that the Defendants made heavy allegation of moonlighting [or holding two full time appointment at the same time] against the Claimant in the statement of defence. It is necessary to first point out that it is in this case that the Defendants mention or raise the allegation of moonlighting for the first time against the Claimant. That during the Claimant’s employment, he was at no time queried by the Defendants for moonlighting. He was also not disciplined at any time nor was the reason for termination of his employment that he was moonlighting. It is also necessary to mention that the Claimant remained an employee of the Defendants and served the Defendants until his employment was terminated in January 2024 for service no longer required. Also, Claimant’s appointment letter from Alex Ekwueme University which is Exhibit 8 discloses that the Claimant was offered a one-year temporary appointment as a Reader in the Faculty of Law. DW1 equally tendered the letter from Alex Ekwueme University where the University confirmed that the Claimant was offered a temporary appointment. He referred the Court to Exhibit Maliki 3. More so, in paragraphs 11 and 12 of the Claimant’s main witness statement, he testified that when he was offered appointment by Alex Ekwueme University, he applied to the Defendants to covert his appointment to part time or visiting but he did not receive any written approval to his application and as a result, he continued to offer his services to the Defendants on full time basis. Then, in paragraph 7 of his further witness statement, the Claimant testified that he worked with the Defendants on full time until the time his employment was terminated while he worked with Alex Ekwueme on temporary basis. Flowing from the evidence of the Claimant, he has clearly explained his status in the two universities. In other words, he never held two full time appointments in the two universities simultaneously. The Defendants who made the allegation in this case has also failed to prove same. This is in addition to the fact that, other than merely alleging that the Claimant held two full time appointments, the Defendants did not plead or mention in the evidence of DW1 that the Claimant was not rendering his services to the 1st Defendant on full time basis and that was why the Defendants never complained or query the Claimant with respect to performance of his duties up to the time his appointment was terminated. He was at no time accused by the Defendant of not rendering services, performing his duties or not seen at work. The letter of termination did not mention that the Claimant’s employment was terminated because he was found moonlighting or having two full time employments at the same time. Importantly, the termination letter was addressed and delivered to the Claimant in the department of Sociology where he was assigned. The Defendants knew at all times that the Claimant was at his duty post in the 1st defendant. Counsel reiterated that the terms of the Claimant’s employment with the Defendants did not prohibit him from having or working with another university or organization on temporary or part time basis. Therefore, Claimant did not commit any infraction by working with Alex Ekwueme University on temporary basis. Accordingly, the Claimant never held two full time appointments at the same time. The allegation of moonlighting raised by the Defendant in this case is an afterthought, baseless and frivolous. In conclusion, Counsel submitted that the Claimant has proved the reliefs sought by him in this case. He urged the Court to grant Claimant’s claims.

 

  1. Respecting issue two it is the position of Counsel that the Defendants sought a total of 8 claims in their counter claim. The claimant filed a defence to the counter claim wherein he pleaded that the claimant denies liability for the claims in paragraph 2 of the counter claim and shall urge the Court to dismiss the reliefs sought in the counter claim for being incompetent, frivolous and unproved and that this Court lacks jurisdiction to entertain the claims in tort contained in reliefs (e) and (f) of the counter claim. He went on to state that in view of the above averments of the Claimant, the Defendants are required by law to prove the claims and to satisfy the Court that their claims are competent and within subject matter jurisdiction of this Court. That in addition, reliefs a, b, c and d sought by the Defendants in their counter claim are declaratory claims. Thus, the law is trite that declaratory claims are granted only on cogent and credible proof of the claims. The Courts do not grant declaratory claims based on the weakness of the case of the Defendant or admission of the Defendant. He placed reliance on the case of Zaccala v. Edosa [2018] 6 NWLR [Pt. 1616] 528 @ 547; Dumez Nig. Ltd v. Nwakhoba [2008] 18 NWLR [Pt. 1119] 361. Accordingly, the Defendants are solely saddled with the burden of proving the counter claims. He referred the Court to Sections 131 and 132 of the Evidence Act 2011. 

 

  1. It is the position of Counsel with respect of relief A that the Defendants sought a declaration that the termination of the Claimant’s employment on 15th January 2024 with effect from 1st January 2024 was right and valid but the Defendants however failed to prove this claim as they failed to adduce any evidence to show the validity of the termination. He contended that in the entire evidence of DW1, he only mentioned that the Claimant’s employment was terminated without saying anything as to show that the termination was done in accordance with the terms and condition of service or the NUC Code. In other words, DW1 failed to adduce evidence to prove the manner the termination of the Claimant was done as to enable the Court make the declaration, they want the Court to make. It is the Claimant who has rather proved that the termination of his employment was wrongful asS illustrated in this address. He urge the Court to hold that the Defendants failed to prove the claim they sought in relief A of their counter claim. Counsel went on to state as regards reliefs B, C and D that they are not competent claims to be sought in a counter claim as they are rather facts fit to be pleaded as a defence to the suit or claims of the Claimant. More so, DW1 did not even adduce any iota of evidence to prove these claims. Similarly, relief C of the counter claim, the claim is misplaced because the Claimant never sought pre-judgment interest in his claims. The only claim where the Claimant sought interest is in relief 7 of the Complaint and the interest he sought in that claim is post judgment interest at 10%. With respect to relief D of the counter claim, Counsel repeat his earlier submissions of this address wherein he clearly illustrated that the Claimant is being owed arrears of salary in the amount he claims in relief 4 of the Complaint. Consequently, the Defendant’s counter claims in reliefs B, C and D is that the claims were not proved and thus incompetent.

 

  1. On relief E and F of the counter claim, Counsel posited that they in the realm of the common law of tort thus, this Court does not have jurisdiction to entertain such claims as the tort of malicious prosecution, defamation and unlawful harassment are not among the subject matter jurisdiction of this Court as provided for under Section 254C[1] of the Constitution of the Federal Republic of Nigeria 1999. He posited further relying on the case of  Ecobank (Nig). Ltd V. Idris (2021) LPELR-52806[CA], where the Court of Appeal held that the subject matter jurisdiction of this court in section 254C[1], [2] and [3] of the 1999 Constitution does not include cases or matters which border on common law of torts and even if the tortuous action happened in the course of the employment, the National Industrial Court cannot entertain such claims. He placed reliance on the case of Akpan V. University Of Calabar (2016) LPELR-41242[CA]. He submitted further that even if this Court has jurisdiction to entertain the claims, the claims were not proved by the Defendants as DW1, did not state anywhere in his evidence that the Claimant maliciously prosecuted the Defendants or that the Claimant defamed the Defendants or that the Claimant unlawfully harassed the Defendants at any time. The result therefore is that the claims in reliefs E and F of the counter claim ought to fail for lacking in merit and being outside the jurisdiction of this Court to entertain.

 

  1. It is the position of learned Counsel on reliefs G and H of the counter claim that these claims too are bound to be dismissed by the Court because the Defendants failed to prove the claims. DW1 did not adduce any evidence in respect of these claims. That in view of the foregoing submissions made on the counter claim of the Defendants, Counsel submit that the counter claim is liable to be dismissed. He urge the court to so hold and order accordingly.

 

1ST- 3RD DEFENDANTS’ REPLY ON POINTS OF LAW

 

  1. On the 16th day of May 2025 the 1st – 3rd Defendant in response to the Claimant’s final written address filed their reply on point of law though belated but regularized wherein Counsel on their behalf submitted that Claimants final written address is defective thus lacking in merit. He urge the Court to dismiss same with cost. Counsel equally posited that the Claimant vide paragraph 8 of statement of fact claimed that the management of the 1st Defendant assured him that he would be assessed for the full professorial rank after a year of his appointment, however, during cross examination of the Claimant Witness, CW said thus; “…there was no formal agreement between me and the 1st Defendant, that I will be given a professorial grant after a year.” Again in paragraph 7 and 8 of the Claimant’s Witness Statement on Oath, the Claimant claimed that the actions of Dr. Friday Iloh, Dr. Kenneth Uzoechi, and the management of the 1st Defendant, were discriminatory against him, However, when asked during cross-examination of his response upon the perceived discrimination, the Claimant witness said thus: “…I did not express any displeasure when I was removed as acting Dean with the 1st Defendant.” Furthermore, the Claimant witness confirmed that; “I did not write to the 1st Defendant after my removal”. Counsel contended that the names of the officials (i.e. Dr. Friday Iloh, Dr. Kenneth Uzoechi) mentioned by the Claimant were not made a party to the suit and that there is also no evidence tendered before this Court showing that the Defendants discriminated against the Claimant witness, nor showing the displeasure of the Claimant witness after the perceived discrimination was meted against him.

 

  1. It is the submission of Counsel regarding the allegation of Claimant that he was not given one month notice nor paid one month salary in lieu of notice that in the Claimant’s witness statement on oath, the Claimant confirmed that the 1st Defendant did, indeed undergo redundancy, and more so, that he was paid the sum of Five Hundred Thousand Naira (N500,000.00) in December, 2023, prior to the termination of his employment in January, 2024. The foregoing was also confirmed by the Defendant witness during cross-examination, when he answered thus; “…there was no formal notice of termination given to the Claimant as there was a general notice of restructuring”. He submitted that the issue of restructuring as a result of redundancy is a general phenomenon that happens in a corporate organization, and the 1st Defendant’s is no exception. In response to the 3 years of service requirement before Claimant can be promoted to full professorship Counsel posited that this Court is enjoined to take Judicial Notice of the provision of the National University’s Commission’s (NUC) Act which empowers it to make subsidiary legislations (by virtue of section 4 (1), (i), hence the National Universities Commission Draft (Benchmark Guildelines fir Appointment and Promotion of Academic Staff in Nigerian Universities. That reference is also made to the conclusion of the National University Commission Draft (Benchmark Guidelines for Appointment and Promotion of Academic Staff in Nigerian Universities).  He placed reliance on the case of Nurudeen V. Oyetola & Ors (2023) LPELR-60093(CA) and Saraki Vs Kotoye (1990) 4 NWLR (PT.143) 144. 

 

  1. With respect of Claimant’s claim that the Defendants’ refused to award him the full rank of professor of law. Counsel contended that there is nothing before the Court to establish the said fact by the Claimant. He posited that it is settled law that he who alleges a fact must prove it. Thus, the question now begs; has the Claimant proved satisfactorily, before this Court that the Defendants gave such assurance(s) to him. He submits that the answer is in the negative. He relied on Section 131 (2) of the Evidence Act. Counsel further submitted that the issue of the Claimant, not pleading nor tendering the Gregory University Laws and Regulations is purely a matter of jurisdiction and in effect, challenges the powers of this Court to hear this matter. That it is trite that issues of jurisdiction can be brought at any time during trial, even at the stage of parties’ address (final address), and he urge the Court to so hold. He cited in support of his assertion the case of Oloba v. Akereja [1988] 7 SCNJ (Pt 1) 56 @ 63 and Obeta v. Okpe [1996] 7 SCNJ 249.  That a trial without jurisdiction is a nullity. A court that lacks jurisdiction to entertain a suit is incompetent to pronounce any judgment or ruling in respect of the action before it hence where a Court adjudicates on a matter, whether civil or criminal, that it does not have jurisdiction, any judgment or ruling delivered in respect of same will be set aside as it is null, void and of no effect. Expiration of time or estoppel cannot affect the right of a party to raise the issue of jurisdiction as judgment delivered without jurisdiction is and remains for all times and purposes a nullity. He placed reliance on the case of Ngere v. Okuruke [2014] All WLR (Pt 742) p. 1766 at 1785). In conclusion is the submission of learned Counsel that on the strength of the above cited statutory and judicial authorities, He urge this Court to dismiss the Claimant’s claims in its entirety with substantial cost, for being frivolous, vexatious, and a deliberate ploy to delay the precious time of this Court and frustrate the Defendants. 

 

COURT’S DECISION

  1. I have carefully considered the evidence of parties to this suit, the final submissions of the Defendants, Claimant and the various arguments canvassed on the counter claim of the Defendants. I am of the opinion that the lone issue to be considered in the determination of this suit is:

Whether the claimant has discharged the burden of proof on him on the preponderance of evidence to warrant this court enter judgment in his favour.

  1. Contract of employment is classified in our labour jurisprudence into three categories, to wit: (a) one regarded as purely master and servant; (b) one in which a servant holds office at the pleasure of the master; and (c) one that is regulated by statute which, in common legal parlance, is cloaked with statutory flavour. In the instant case, the parties are consensual on the point that the specie of employment that existed between the parties was the one of master and servant relationship. See Board of Management, F.M.C. Makurdi v. Abakume [2016] 10 NWLR (Pt. 1521) 536; Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599; Olanrewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691; Iderima v. R.S.C.S.C. [2005] 16 NWLR (Pt. 951) 378; C.B.N. v. Igwillo [2007] 14 NWLR (Pt. 1054) 393; Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1.

 

  1. The general position of the law regarding the standard of proof in civil proceedings is that the Claimant must succeed on the preponderance of evidence or on the balance of probabilities. By Sections 131, 133 and 134 of the Evidence Act 2011, the burden of proof in civil proceedings, such as the instant one, lies on the party who would fail if no evidence were adduced on either side. Therefore, a party on whom the burden of proof lies must plead relevant facts, and these pleaded facts must also be supported by credible evidence for his case to succeed. See the cases of Akinremi v. Binuyo & Ors [2010] LPELR-9150(CA); N.N.P.C v. Lutin Investments [2006] 1SC (pt. III) 49, [2006] 2 NWLR (pt. 965) 506; Omisore v. Aregbesola [2015] NWLR (pt. 1482) 1@ 273; Section 131, 132 and 133 of the Evidence Act, 2011.

In Nimanteks Assoc Ltd & Anor v Marco Construction Co Ltd & Others [1991] 2 NWLR [Pt. 174] 411, it was held that 

“ … … …  plaintiff who commences an action in a court of law must prove that action in order to have judgment in his favour. This is the first law; the first order in the realm of proof. There is the second one and it is more generally put: a party who makes an assertion must prove it.” 

See Olusesi v. Oyelusi and Others [1986] 3 N.W.L.R. (Pt.31) 634; Chukwudi and Another v. Unachuku [1979] 3 C.A. 114.

  1. Let me also highlight the fact that, in a suit where the Claimant is seeking for a declaratory order, the burden of proof rests on the party seeking the order to demonstrate, on a balance of probabilities, that they are entitled to the declaration. In the case of Sanusi v. Ameyogun [1992] 4 NWLR (Pt. 237) 527, the Supreme Court noted that the first stage of enquiry in a claim for declaratory relief is to consider whether the Claimant has made out a prima facie case. It follows therefore that the burden of proof in a claim for declaratory reliefs as in the instant case is on the Claimant and the Claimant must succeed on the strength of his own case and not on the weakness of the Defendant’s case. The Claimant would not be entitled to judgment even on admission of the Defendants to the Claimant’s claims. This is more so as it is the duty of the Claimant to first prove the existence or non-existence of what he asserted by relevant, admissible and credible evidence. Once this burden so placed on the Claimant is discharged, the onus then shifts to the Defendant. See the case of Uzodinma v. Ihedioha [2020] 5NWLR (Pt 1718) 529 @ 578, Paras D-G. However, the exception to this general rule is that a Claimant is allowed to rely on aspects of Defendant’s case that support his own. See the case of Hanatu v. Amadi [2020] 9 NWLR (Pt 1728) 128, Paras A-C and; Salisu v. Mobolaji [2016] NWLR (Pt 1535) 280-281, Paras H-A and; C.D.C. (Nig) Ltd v. SCOA [2007] 6 NWLR (Pt 587)410. It follows that reliefs (i) and (ii) of the Claimant’s Complaint and the statement of facts are declaratory in nature and they appear to be the foundational claims of the Claimant upon which the remaining claims hang.

 

  1. The simple facts of this case are that the Claimant was employed by the 1st Defendant effective 3/11/2021 until his appointment was terminated effective 01/01/2024 vide a letter dated 15/01/2024. Reference is made to Exhibit Akuchie 3 and Akuchie14 respectively. It is the case of the Claimant that the termination of his appointment was wrongful as he was not giving one-month notice or paid one-month salary in lieu of notice. Claimant further contended that the letter terminating his appointment was signed on the 15/01/2024 by the former Registrar on the date DW1 who is now the Registrar took over as the Registrar. It is therefore the submission of Claimant that the letter is invalid as the signatory was not in the services of the Defendants when the letter was issued. Claimant further argued that the authority that terminated his appointment has no power to remove and or terminate his appointment. In their response Counsel to Defendants argued that the case of the Claimant is devoid of any cause of action as Claimant fail to place before the Court the terms and conditions of the employment contract between him and the Defendants.

 

  1. Let me at the onset disabuse the mind of Defendants who seems to be making a mole out of an anthill arguing that there is no cause of action before this Court in the light of the facts and the reliefs in this suit that set the machinery of this Court in motion. In an effort to answer or attend to the issue of want of cause of action, the question as to what determines the jurisdiction of a Court must be addressed. The Court of Appeal had held in the case of Nasarawa State Specialist Hospital Management Board & Ors v. Mohammed [2018] LPELR-44551 (CA) per Ekanem, JCA thus:

“It is well settled that in determining the jurisdiction of a Court, it is the claim of the claimant that is to be examined. The Court is to examine the facts of the case as well as the reliefs to see if they fall within the jurisdiction of the Court as donated by the enabling law. If they do, then the Court is to assume jurisdiction. If they do not fall within the jurisdiction of the Court, the Court is to decline jurisdiction. See Adeyemo v. Opeyori (1976) 9-10 SC 31, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Oloruntoba-Oju v. Abdul-Raheem (2009) LPELR-2596 (SC).”

  1. Under the common law, in an action for wrongful termination, it is necessary for the Claimant to plead the contract of employment, which is the foundation of the action. Without the contract and its particulars being pleaded by the Claimant, no evidence of the terms of the contract which has been breached would be admissible at the trial and this will be fatal to the action as it will lack a foundation. Since it is the Claimant's case that the termination of his employment by the Defendants is not in accordance with the terms and conditions of the contract of service between them, it then behooves on the Claimant to plead and prove the conditions of service regulating the contract of service in question.

 

  1. In the case at hand the Claimant tendered Exhibit Akuchie 3 as the appointment letter offered to him by the Defendants and argued that contrary to the terms and condition of his employment the Defendants did not serve him with a one-month notice or pay him one-month salary in lieu of notice before terminating his appointment. The Defendants responded that they have the power to disengage Claimant whenever they deem it fit whether for good or bad. I have perused the content of Exhibit Akuchie 3 and there is no provision requiring notice in the letter of offer. The nearest of this is the clause in the exhibit that read thus: 

“This appointment is subject to the provisions of the Gregory University Law and Regulations Governing the conditions of service of staff on full time; made and reviewed by the university council from time to time. However, the University Management reserves the right to terminate this appointment whenever it is deemed necessary.”

  1. Defendant insisted that the fact that Claimant failed to tender the terms and conditions of service, the case of the Claimant must fail as it is incompetent and this Court lacks the jurisdiction to entertain same. A similar scenario such as in the instant case once arose in the case of Okoebor v. Police Council [2003] LPELR-2458 (SC). The issue for consideration in the case was whether the fact of employment can be proved circumstantially or by direct evidence in terms of pleading and tendering of the letter of employment. The majority decision of the Supreme Court held that when an employee complains that his employment has been wrongfully terminated, or that he was wrongfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer. That, one major term of employment is the payment of salary and that was pleaded in the statement of claim. In addition, other facts given in evidence by the appellant, which were not controverted or contradicted proved that the appellant was employed as a policeman. To the majority decision, both the High Court and the Court of Appeal were wrong to have dismissed the Appellant’s case on the ground that he failed to plead and lead credible evidence in support of his claim. In the case at hand, Claimant exhibited the offer of appointment and is marked as Exhibit Akuchie 3 and pleaded other facts evidencing the employment relationship between parties and which were not controverted. It follows that there is indeed a prima facie case of an employment relationship and the argument of Counsel to Defendants of want of cause of action cannot be sustained and is accordingly hereby discountenanced. I so hold.

 

  1. I am mindful that this Court has the exclusive jurisdiction over labour and employment disputes by virtue of section 254C (1) of the 1999 Constitution as amended. Going by this position, the issue of notice as argued can be resolved statutorily in the light of the jurisprudence of this Court. By virtue of section 11 (2) of the Labour Act, where a contract of employment is silent on notice periods, the minimum notice periods for 2 Years employment is 1 month. The Courts have consistently held that termination of employment must comply with terms and conditions of the employment contract, including any agreed notice period. If the contract is silent, the Labour Act’s statutory notice periods apply. See Osianya v. Afribank Nig. Plc [2007] LPELR-2809 (SC). It therefore follows that despite the non-provision for a notice clause in an employment contract, section 11 (2) Labour Act steps in and fill in the vacuum. Now in the instant case I find no evidence confirming that 1st Defendant gave Claimant the required notice before the determination of the employment contract between them. I am also mindful that in employment contract of the nature of a master and servant relationship, any of the parties can bring the relationship to an end at any time. See Syke Bank Plc v Adegun [2024] LPELR – 62219 (SC). Despite this wide power wielded by the Defendants, from the evidence before this court, nothing seems to suggest any payment of salary in lieu of notice and or the giving of a month’s notice to the Claimant. Therefore, I am on a firm footing to find that the non-service of claimant with a one-month notice or payment in lieu before terminating the employment renders the termination unlawful. Accordingly, the purported termination of Claimant’s appointment by the Defendant is hereby declared wrongful and illegal simpliciter. This I so hold.

 

  1. As to the issue of proper authority to determine the employment relationship between the parties, I cannot agree less with the submission of the Claimant because a look at the offer of appointment letter which is Exhibit Akuchie 3, it is clearly stated in unmistaken terms that Claimant’s appointment was by the “Governing Council of Gregory University, Uturu” and it cannot now be said that it is the Proprietor/Chancellor that is terminating claimant’s appointment. It is trite that where a person is giving power to appoint a person to an office, the power includes that of removal of the person appointed. This is the import of section 11 of the Interpretation Act. I therefore also find that the termination of the appointment of Claimant by the Proprietor/Chancellor of the 1st defendant is wrongful. This I so hold.

 

  1. On the question of signatory of the termination letter, I find no evidence that indeed the former Registrar left before the 15/01/2024. It is my humble view that by taking over office on a particular date also presupposes that the predecessor hands over the office on that date. I have no reason to doubt the authenticity of the letter of termination dated 15/01/2024 of the Claimant. Another issue raised by the Claimant is the claim that the Court should declare the non-approval of his professorial award as wrongful and discriminatory. I have tried to go through the facts and evidence before this Court and I can only imagine how this issue can be said to form part of the terms and conditions of the employment of the Claimant. I cannot fathom this and cannot see this anywhere in Exhibit Akuchie 3. In the light of this, I find no merit in this claim. Accordingly, this head of claim is hereby refused. I so hold.

 

  1. On the issue of claim of arears of salary for the month of August, September, October, November and December of 2023 by the Claimant, the Defendants did not dispute this in paragraph 34 of their statement of defence but argued that Claimant was not paid because of moonlighting. The law is trite that where evidence given by a party to any proceedings is not challenged by the other party who had opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it. See Omoregbe v. Lawani [1980] 3-4 SC 108; Odulaja v. Haddad [1973] 11 SC 35; Nigerian Maritime Services Ltd v. Afolabi [1978] 2SC79; Boshalli v. Allied Commercial Exporters Ltd [1961] 2 SCNLR 322. In the instant case the Claimant's evidence was not challenged even in cross-examination. I hold the view and find that Claimant has proven by evidence the arears of salary due to him for 5 months at the rate of N265, 000 per month. This I so hold.
  2. Claimant also claim the sum of N10,000.00 as general damages and N5, 000.00 as compensation. The law is recondite that general damages need not be specifically proved as it may be inferred from the circumstances surrounding the case. Consequently, a court has a discretion to decide what amount it would award as general damages having regard to the sufferings by the Claimant or humiliation or injuries suffered. It is also settled that both compensation and general damages can be awarded in favour of a successful litigant. See N.N.B. Plc v. Denclag Ltd. [2005] 4 NWLR (Pt. 916) 549. I have observed the way and manner Defendants have treated the Claimant after resuming from the redundancy leave where he was only paid for the months of June and July 2023 and left to wallow in penury without salary for the next five months and still serving and working for the Defendants. This is not humane as labour rights are also seen as a human rights that touches on the very existence of one’s humanity. In view of this, Claimant is awarded the sum of N5, 000,000.00 as general damages and compensation. I so hold.

 

  1. A 10% post judgment is interest is hereby awarded on the judgment sums. 

 

  1. I have observed the counter claim filed by the Defendants and the claims are substantially the opposite of the claims of the Claimant. I therefore adopt the reasoning in the body of this judgment to find against the Counter Claimant and accordingly hereby dismissed the Counterclaim in its entirety. This I so hold.

 

  1. On the whole, for the reasons giving, Claimant succeeds in part on the following terms:

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  1. An order is hereby granted declaring the termination of Claimant’s employment vide Defendants letter dated 15/01/2024 as illegal and wrongful only as it is a master and servant relationship and does not warrant any reinstatement of claimant.
  2. Defendants are hereby jointly and severally ordered to pay the Claimant the sum of N957, 500.00 as 5 months arears of Claimant’s salary.
  3. Defendant is hereby ordered to pay the Claimant the sum of N5, 000,000.00 as compensation and general damages.
  4. 10 % post judgment interest is hereby awarded on the judgment sums.

 

  1. Defendants are to comply with this judgment within 30 days from the date of this judgment.

 

  1. Judgment is hereby entered.

 

 

 

                                                                                  ……………………………..

                                                                                       Hon. Justice E. D. Subilim

                                                                                                                     JUDGE