IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: THURSDAY 16TH MAY 2019
ABIA STATE UNIVERSITY………………………………DEFENDANT
- C. EBERE FOR THE CLAIMANT.
- O. OBI, HOLDING THE BRIEF OF CHIEF THEO NKIRE, FOR THE DEFENDANT.
The claimant herein commenced this suit by way of complaint dated 26/09/2016 and filed 27/09/2016 [date filing fee was paid]. By paragraph 15 of the Statement of Facts [wrongly tagged ‘Statement of Claim’], the claimant asked for the following reliefs:
- A Declaration that the Defendant’s termination of the Appointment of the Claimant as Senior Security Officer in the Security Department of the defendant vide the letter dated 28th June, 2016 is illegal, and unlawful.
- An Order of Court setting aside the said termination for being illegal and unlawful.
- An Order reinstating the claimant to his said position as Senior Security Officer in the Security Department of the Abia State University.
- An Order on the defendant to pay over to the Claimant all the entitlements due to him by virtue of his said position including all salaries and allowances owed him from the said 28th day of June, 2016.
The defendant filed Memo of Appearance on 24/10/2016 and a Statement of Defence dated 01/11/2016 and filed 21/11/2016. The case first came up before Hon. Justice O.Y. Anuwe on 3rd November 2016. On this date, the learned counsel to the defendant applied for correction on the Memo of Appearance and the application was granted. The matter came up again on 18th January 2017, and on this date, vide proceedings in Suit No. NICN/OW/58/2016 – AKPOLISI CECILIA V. ABIA STATE UNIVERSITY [a sister case], the Statement of Defence was deemed as properly filed and served. Subsequently, the matter was adjourned to 8th March 2017 for hearing. On 8th March 2017 when the matter came up, the counsel to the claimant asked for adjournment to file Reply and Defence to the Counterclaim. The case was therefore adjourned to 10th May 2017 for hearing [in the sister case, supra]. The claimant reacted by filing Reply and Defence to Counterclaim dated 8th March 2017 and filed 12 April 2017, which was deemed properly filed and served on 7th June 2017 [vide the sister case, supra]. The case was later adjourned to 13th July 2017 for hearing [vide the sister case, supra].
The Court did not sit on 13th July 2017. The next date it sat was 23rd October 2017. And before this date, His Lordship, Hon. Justice O.Y. Anuwe was transferred from the Owerri Judicial Division while I was transferred to the Division. The matter came up before me for the first time on 23rd October 2017. On this date, vide the sister case, supra, the matter was adjourned to 28th November 2017 for hearing. On this date, the matter came up as adjourned but, the Court directed the counsel to the parties to address it on the desirability of consolidating the five sister cases; and adjourned the cases, vide the sister case, supra, to 11th December 2017 for address on consolidation and 12th December 2018 for hearing. The matter came up as adjourned on 11th December 2017 and the Court acceded to the requests of the learned counsel to the parties not to consolidate the cases. Meanwhile, the defendant filed an Amended Statement of Defence and a motion to deem it as properly filed and served on 8th December 2017. On this same 11th December 2017, vide proceedings recorded in its own file this time around, the learned counsel to the defendant informed the Court of the pendency of motion to deem the Amended Statement of Defence as properly filed and served but that,it had no written address as required by law.
On this basis and on the application of the learned counsel to the defendant, the matter was adjourned to the very following day, 12th December 2017 to enable the learned counsel to the defendant regularize his application. The learned counsel filed the said written address as prayed.The case was again adjourned off record because trial in the sister case supra took long. It was adjourned to 15th March 2018. On 15th March 2018, the learned counsel to the defendant moved his application for leave to amend and a deeming order. These prayers were granted without opposition and the case adjourned to 23rd April 2018 for hearing vide proceedings of that day in another sister case: Suit No. NICN/OW/59/2016 – Mbagwu Ignatius v. Abia State University. The matter came up as adjourned on the 23rd April 2018 and the case was opened, with the claimant testifying as CW1.
Be that as it may, let me now summarise the parties’ pleadings, on the bases of which issues were joined, evidence led and arguments proffered in the final written addresses, and on which bases too, the case must be decided.
CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS
- Statement of Facts
The claimant said he was a staff of the defendant at all time material to this suit. He pleaded that hewas employed in the Security Department of the defendant by a letter dated 18th April 1991 and confirmed by letter dated 19th December 1991. The claimant said he earned promotions to the rank of Senior Security Officer by letter dated 17th January 2013. He pleaded that his appointment was terminated on this rank on 28th June 2016 by a letter. The claimant pleaded too, that, by virtue of his promotion as Senior Security Officer, he became a senior staff and began to be governed by the “Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)”[to be hereinafter called RGCSSS] approved by the University Council on 12/12/2002. The claimant said, he, at no time, committed any misconduct and that, he had never been queried nor invited to any disciplinary committee on any allegation; and that, he was not given fair hearing before his appointment was determined, contrary to paragraph 2.14 of the RGCSSS and section 36 of the 1999 Constitution. The claimant stated that, he protested the termination by a letter to the Vice-Chancellor dated 18th July 2016 and that, the defendant refused to reply the said letter. The claimant saidthat, again, through his lawyer, by a letter dated 18th August 2016 and served on the defendant on the same date, he also gave the defendant one-month notice of his intention to commence legal action against it, and that, the defendant refused to reply the pre-action notice thus, this action. The claimant pleaded that the defendant should produce originals of these letters at trial, failing, which copies would be tendered.
- Statement of Defence
The defence is as contained in the Amended Statement of Defence. The defence pleaded that, the reckless and incompetent conduct of the claimant as security officer led to breach of security, gruesome murder of students, festering of deadly cult activities and wanton destructions of lives and properties in the University. The defendant pleaded too that, as a result, the defendant set up a special Committee on Security to investigate the breach of security pursuant to section 5(1) & (2) of the Abia State University Law [ASUL] and the RGCSSS. The defendant said witnesses, including the claimant, were called to the meetings of the Committee, which sat in the open. The defendant said the Committee found the claimant guilty of monumental irresponsibility in the discharge of his duties as security officer. The defendant pleaded that; it never received the letters or notices allegedly sent to it by the claimant. The defendant pleaded that, the termination of the claimant’s appointment was lawful and in accordance with the laws,regulations and employment customs relevant to the employment. The defendant also counterclaimed for the cost of defending this action.
- Reply and Defence to Counterclaim
The claimant pleaded against the original Statement of Defence and answered the counterclaim therein. The claimant pleaded that he had always been diligent and never reckless in his duties, which was why no query was ever issued him and that, his counsel wrote the defendant through the Vice-Chancellor and that; the said letter was served on and received by the defendant through its agent/servant who acknowledged receipt on 18/08/2016.
It is on the foregoing bases, as reviewed in a, b, & c above that the suit was fought and evidence led in proof and arguments canvassed by learned counsel in support of each party’s case. To the trial proceedings and adoption of the final written addresses of parties, being the next in line, I go.
TRIAL AND ADOPTION PROCEEDINGS
On 23rdApril 2018, trial commenced in this suit with the claimant opening his case by testifying on behalf of himself as CW1. After complying with all the other initial preliminaries, CW1 adopted his written depositions. Counsel to the defendants said he would not object to all promotion documents and that, he would defer his objection on any other document to the final address stage. CW1 thereafter tendered 7 documents without any objection and they were admitted and marked accordingly. After, the learned counsel to the defendant indicated that it had objection to the admissibility of the 8th document but that, this would be done at the final address stage. The document was therefore tentatively marked as Exhibit CWH (1-3) and ruling reserved till judgment on any objection brought against it eventually in the final written address, without protest from the learned counsel to the claimant. The case was at this stage adjourned to 22nd and 24th May 2018 together with the two other sister cases for continuation of trials.
On the 22nd May 2018, this case could not go on as the learned counsel to the claimant applied for adjournment on the ground that, the claimant had an accident and went into coma. It was therefore adjourned to 6th June 2018 for continuation. On this date, the case was not taken, as it was adjourned on the sister case, supra. It came up on 14th June 2018 and CW1 continued his evidence-in-chief and tendered an additional document, admitted as Exhibit CWJ. The attempt of the learned counsel to the claimant to elicit further oral evidence on Exhibit CWJ was opposed and the objection was upheld. Thereafter, CW1 stated that he was not obliged to pay the counterclaim and his evidence-in-chief was brought to an end. Cross-examination of CW1 was commenced immediately thereafter,and concluded the same day. There being no re-examination, the learned counsel to the claimant closed the case of the claimant and the case was, at this stage, adjourned to 24th September 2018 for defence and cross-examination.
On the 24th September 2018, the Court did not sit due to my transfer from the Owerri Division. The Court sat next on the 8th November 2018 after securing fiat to conclude the part-heard matters. The matter could not go on this date, and it was further adjourned to 15th November 2018. The Court did not sit on 15th November 2018 and sat next on 30th November 2018. The defence opened with DW1 and he tendered two exhibits and they were marked accordingly. Thereafter, the objection of the learned counsel to the claimant to the admissibility of the third document was overruled and the document admitted as Exhibit DWC. Exhibit DWD was admitted without objection while objection to the fifth document was overruled too, and it was admitted as Exhibit DWE. The testimony-in-chief of DW1 came to an end at this stage and his cross-examination commenced in earnest and was concluded the same day. There was no re-examination. The case of the defence was thereafter closed and the matter adjourned to 7th February 2019 for adoption of the final written addresses of the learned counsel to the parties. The Court did not sit on this date. The next time it sat, was 22nd March 2019.
On this date, the learned counsel to the defendant was absent in Court and no other counsel from the chambers appeared for the defence. However, oral message was delivered to me by the Head of Division, Owerri: Joy Nwachukwu that the lead learned counsel for the defendant [CHIEF THEO NKIRE] phoned her and said he was bereaved and was on his way to the USA to commensurate with the family of his late daughter and that,the Court should deem his final written address already filed as adopted in absentia. The learned counsel to the claimant: D.C. EBERE adopted the final written address of the claimant and the Court acceded to the request of the learned counsel to the defendant and deemed the final written address of the defendant adopted in absentia in accordance with Order 45, Rule 7 of the NICN Rules 2017. There was no Reply brief filed. The case was thereafter adjourned to 5th April 2019 for judgment. The judgment was not ready on this datehence; it was adjourned sine die till date of its readiness would be communicated to the learned counsel to the parties within the constitutional timeframe.
Having carefully summarised the trial and adoption proceedings, the next duty for me now, is to go ahead to summarise the final written addresses of the parties. To this job I proceed.
SUMMARIES OF THE FINAL WRITTEN ADDRESSES
- The Final Written Address of the Defendant
CHIEF THEO NKIRE franked the final written address of the defendant and formulated two issues for the determination of the case. They are:
- Whether, considering the provisions of paragraph 2 (b) of the Claimant’s contract of employment [Exhibit CWA] with the Defendant and other circumstances of this case, Claimant’s employment was not lawfully terminated since the Abia State University Regulation Governing Conditions of Service of Senior Staff on which the Claimant relied was not enacted by the Abia State Assembly as a Schedule to the Abia State University Law nor as a Subsidiary Legislation as required by law. [sic]
- Whether Claimant has presented sufficient materials or evidence in proof of his case to enable the Court to find in Claimant’s favour?
The learned counsel to the defendant argued these two issues together. The learned counsel submitted that, an employee who complained that his employment was wrongfully terminated must show in what manner the wrongfulness was committed by reliance solely on his contract of employment. The learned counsel cited Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) in support of this submission. The learned counsel submitted that, in deciding this, the Court cannot rely on any extraneous source and cited Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149 at 162 and International Drilling Company Ltd v. Ajijala (1976) 2 SC 115 at 127. The learned counsel argued that, the mere fact that an employer is a statutory body does not confer its conditions of service with statutory flavour.The learned counsel cited Fakuade v. ObafemiAwolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47. The learned counsel further argued that, where an employment is mutually determinable at will, it could not have statutory flavour. The learned counsel cited Fakuade’s case and Idoniboye-Obu’s case [supra]. The learned counsel argued that, the contract of employment in issue, is as contained in Exhibit CWA [the letter of appointment] and relied on paragraph 2(b) thereof to argue that, the employment was not in any way clothed with statutory flavour. The learned counsel argued that, by virtue of this, the defendant is only obliged to give the claimant a month’s notice or salary in lieu before termination.
The learned counsel argued that, for an employment to have statutory flavour, parliament or any lawmaking body must enact the conditions of service as a schedule to an Act or Law or as a subsidiary legislation.The learned counsel argued that, theconditions of service contained in the RGCSSS, in the instant case, were drawn up by the Council of Abia State University, just like the conditions of service of N.N.P.C were drawn up by the N.N.P.C’S Board in Idoniboye-Obu’s case and that, since the Supreme Court declared in Idoniboye-Obu’s casethat,the N.N.P.C’s conditions of service did not enjoy statutory flavour like section 17 of the University of Lagos Act, the RGCSSS would also not enjoy statutory flavour. The learned counsel relied on the dictum of Lord Tobi, JSC in Indoniboye-Obu’s casesupra. The learned counsel submitted that, to determine whether the employment herein is clothed with statutory flavour, the Court is bound to closely examine Exhibit CWG [the RGCSSS], especially the opening clause, to see if it was properly couched in accordance with the dictum of Lord Tobi, JSC in Idoniboye-Obu’s casesupra.
The learned counsel argued that, the claimant only tendered pages 12, 13 and 14 of Exhibit CWG, which composite document is of 60 pages and submitted that, the 3 pages tendered are insufficient to determine the issue at hand. The learned counsel submitted that, the Court could not fish for evidence to decide the case. On this, the learned counsel cited Okesoto v. Total Nig. Plc (2010) LPELR-CA/K/222/05; Fannami v. Bukar (2004) ALL FWLR (Pt. 198) 1210 at 1273, para. D; and Bamgboye v. Olanrawaju (1991) 4 NWLR (Pt. 184) at 132.The learned counsel submitted that, the burden of proof on the instant issue, rests with the claimant, by virtue of sections 131, 132 and 133(1) of the Evidence Act and that, it was only after proving his case with satisfactory evidence that the burden shifts to the defence to disprove same by virtue of section 133(2) of the Evidence Act.The learned counsel cited Adama Beverages Ltd v. Galleon (2016) LPELR-40314 (CA); N.B. Ltd v. D.C. Holdings Ltd (2004) 13 NWLR 436 at 462; and Chime v. Eze (2010) 6 EPR 353. The learned counsel argued that, the failure of the claimant to bring the entire RGCSSS before the Court meant the claimant had failed to prove his case.
The learned counsel submitted thereafter that, on the other hand, the defendant has justified the termination of the claimant on the ground of gross incompetence in running the security department of the defendant, which led to total breakdown of law and order in the University and the attendant festering of cult activities and the gruesome murder of students, prompting the University to invoke the provisions of paragraph 2(b) of the letter of appointment to terminate the employment of the claimant and those of his colleagues to forestall the recurrence of the murderous incidents. The learned counsel argued that, in view of this, even in case of breach, the only remedy opened to the claimant are damages calculable on the basis of the agreed notice and not reinstatement.The learned counsel cited Western Nigeria Development Corporation v. Abimbola ) (1966) 1 ALL NLR 159 at 160-161; Nigeria Produce Marketting Board v. Adewunmi (1972) 1 ALL NLR (Pt. 2) 870 at 871; and Chukwuma v. SPDC Nig. Ltd (1993) 4 NWLR (Pt. 289) 512 at 538.
Thereafter, the learned counsel argued that, the reliance placed on the RGCSSS by the claimant was misplaced, as the RGCSSS neither applied to the termination of the claimant’s employment nor clothed his employment with statutory flavour, as it is neither an Act of parliament nor a subsidiary legislation; and more so, that, the ASUL did not provide for the claimant’s employment. The learned counsel cited Idoniboye-Obu’s casesupra. The learned counsel submitted further that, this Court could not grant any declarative relief in the instant case. The learned counsel submitted further that, the law is that, where it is found that an employer acted within the terms of employment in terminating an employment, which has no statutory flavour, the court is precluded from granting any declarative relief, as claimed in the instant case and cited Idoniboye-Obu’s casesupra.
The learned counsel argued further that, evidence adduced showed that the claimant was heard before his termination, contrary to his assertion that he was never heard. The learned counsel cited pages 10, 13 and 15 of Exhibit CWJ to show that the claimant was heard. The learned counselsubmitted that, the defence of the claimant under cross-examination that Exhibit DWJ was forged, is one that the claimant ought to have proved beyond reasonable doubt. The learned counsel cited sections 131-133 and 136 of the Evidence Act and Agala v. Okusin (2010) LPELR-221 (SC) 1 at 21-22 and a host of other authorities on this. The learned counsel argued that, the claimant failed to prove the allegation of forgery.The learned counsel argued that, the fact that Exhibit CWJ is not forged was brought out at page 15, lines 18-22, wherein the claimant was asked what his qualification was when he was employed by the defendant and he answered that, he joined with WASC but now had PhD. The learned counsel submitted that, this answer could not have been forged.The learned counsel submitted that, therefore, on the whole, the claimant failed to prove his case; and urged the Court to dismiss the case.
Thus, the final written address of the learned counsel to the defendant was brought to an end. I shall now move to summarise that of the learned counsel to the claimant.
- Final Written Address of the Claimant
CHIEF OKEY EHIEZE (KSC) franked the final written address of the claimant and formulated 2 issues for the determination of the case, to wit:
- Whether the claimant has proved that his employment with the defendant enjoys statutory flavour. [sic]
- Whether the Claimant Proved His Case so as to be entitled to the judgment of the Honourable Court. [sic]
In arguing his issue 1, the learned counsel was of the opinion that the employment of the claimant, being that it is covered by the provisions of the RGCSSS [Exhibit 8], which is a subsidiary legislation, has statutory flavour by virtue of sections 28 and 29 of the ASUL [Exhibit 13]The learned counsel argued that, the reliance placed on paragraph 2(b) of the letter of appointment [Exhibit 1] of the claimant, by the learned counsel to argue that the employment of the claimant has no statutory flavour could not hold, in view of paragraph 2(a) of the same letter, which makes the appointment of the claimant subject to the ASUL.For this argument, the learned counsel referred the Court to Hassan v. Abu, Zaria (2010) ALL FWLR (Pt. 538) 962 at 966, which defines the phrase ‘subject to’ and submitted that, in virtue of this, the RGCSSS is part and parcel of the ASUL. Thereafter, the learned counsel argued that,employment of the claimant herein met all the trappings dictated by the dictum of Lord Tobi, JSC in Idoniboye-Obu’s case [supra]. The learned counsel was of the view that, the claimant, having being promoted from junior to senior staff, now enjoys the benefits of the RGCSSS and therefor, must be disciplined in accordance with the provisions of paragraph 2:14 of the RGCSSS. The learned counsel cited Adebiyi v. Sorinmade (2004) ALL FWLR (Pt. 239) 933 at 937 on the doctrine that, once a statute provides a procedure for doing a thing, it must be complied with in toto. On issue 1, the learned counsel finally urged the Court to hold that the employment of the claimant has statutory flavour, and signed off. I move to issue 2.
On issue 2, the learned counsel was of the view that, the claimant proved his case when viewed from the prism of the evidence adduced. The learned counsel said the claimant tendered Exhibit 8, the RGCSSS and that, from the evidence, it was not disputed that the claimant was not given fair hearing either by oral or written query. The learned counsel said the defendant tendered Exhibit DW1, the Report of the Council Ad-Hoc Committee on Security in Abia State University, and submitted that, the documents shows that, the claimant was never invited by the said Committee and argued that, DW1 admitted under cross-examination that, the claimant was never invited by the Committee, and thus, conceded that, the claimant was never given fair hearing. The learned counsel submitted that, the reliance placed on paragraph 2(b) of the letter of appointment of the claimant would be of no avail because; the employment is now regulated by Exhibit 12 clause 2(a) of the employment letter. The learned counsel argued that, before the appointment of the claimant could be properly terminated, the defendant must comply with Article 2.14 of Exhibit 12 and submitted that, Article 2.14(iii) provides that, before the employment could be terminated for reasonable cause, other than on ground of infirmity of mind or body, the defendant must comply with specifications (a), (b), (c) and (d) therein. The learned counsel argued that, these specifications enshrined compliance with fair hearing,in consonance with section 36(1) of the 1999 Constitution,before the employment of the claimant could be properly terminated. The learned counsel cited Eze v. University of Jos (2017) ALL FWLR (Pt. 898) 101 at 117 and Angel Spinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1353-1354 to argue that, the right to fair hearing is sacrosanct and failure to comply with this would lead to a declaration that any action taken in violation, is null and void.
The learned counsel submitted that, the claimant, having placed Exhibits 1 and 8 before the Court, wherein Exhibit 8 par 12.4(iii) [?] requires fair hearing, which the defendant failed to comply with, the claimant has therefore discharged the onus of proof on him and therefore, entitled to the judgment of this Court. The learned counsel finally submitted that, the claimant, having showed that his employment is tainted with statutory flavour, which flavour, the defendant has breached; the purported termination therefore, is unlawful and illegal. The learned counsel therefore urged the Court to set aside the termination and grant all the reliefs claimed by the claimant. The learned counsel also urged the Court to dismiss the defendant’s counterclaim. This marks the end of the arguments of the learned counsel to the claimant in his final written address. There was no Reply on Points of Law filed by the defence. Thus, the next thing for me to do is to give my reasoned decision on the case with legal and logical justifications.
In doing these, the Court is bound to look carefully at the processes in the case file, especially those directly relevant to the issues raised in the case, the evidence adduced at trial, the authorities cited by the parties vis-à-vis the correct position of the law. I wish to state that, I have carefully taken all these into consideration in arriving at my decision. I have equally taken into consideration the demeanours of the witnesses at trial. I note too that, I did not summarise the evidence adduced at trial. I will make references to these pieces of evidence as occasionsdemand. I wish to state too, that, the Court’s decision will be broken into two parts: the first part will take care of preliminary issues, while the second will deal with the merits of the substantive case.
I identify three preliminary issues that must be dealt with before proceeding to give my decision. This is so, because, these issues are threshold. These are: 1. Issue of failure to issue and serve pre-action notice. 2. Issue of the counterclaim of the defendant. 3. Issue of whether or not incomplete RGCSSS was tendered and admitted. I take them seriatim.
The defendant pleaded and led evidence on failure to issue and serve pre-action notice on it; and the claimant pleaded service of it and led evidence of thereon, in rebuttal. Thus, issue was joined on this fact. However, I observed that both parties did not touch on this issue in their final written addresses. This is more particularly significant in view of the opposition of the learned counsel to the defendant to the admissibility of the acknowledged copy of the pre-action notice when it was to be tendered on 23rd April 2018. The learned counsel had indicated then, that, he would argue his objection in the final address stage; and as it has turned out now, he has failed to do so. It is therefor safe to presume that the issue had been abandoned – see Umar v. Bayero University, Kano (1988) LPELR-3358 (SC) 14, D-G. Arising from the foregoing, I hold that the issue of failure to serve pre-action notice in this case has been abandoned. I also take note of the fact that Exhibit CWH (1-3) is an acknowledged copy of the receipt of the pre-action notice. It was endorsed at the back of the second page as received by one Ekezie Jacinta (Mrs.), Chief Typist at 11:32 am on 18th August 2016. I therefore hold that, the service of the pre-action notice was actually duly proved and that, Exhibit CWH (1-3) was duly admitted in evidence.
I move to the 2nd issue: that of the counterclaim raised by the defendant and on which evidence was led at trial and which the claimant pleaded against and led evidence against thus, joining issue on it. Like the previous situation, I observe too, that, the defendant did not touch on this issue in its final written address. Though, in passing, the claimant said the counterclaim should be dismissed in his final written address. I take note that there was no Reply on Points of Law filed, implying that the defendant did not counter this point. The law is that, a point raised in address and not countered by the opposing side, is deemed conceded – seeBornu State INEC & ORS v. Kachala (2005) LPELR-7464 (CA) 35-36, C-B. Though, this authority was in relation to brief of arguments at the Court of Appeal, the same holds by dint of logic in relation to the final written addresses of parties at trial courts; final written addresses, being the same thing as briefs of argument. I therefore hold that, the issue that the defendant’s counterclaim should be dismissed raised by the claimant is conceded. The counterclaim is hereby dismissed. I additionally dismiss the counterclaim, in view of the fact that, the learned counsel to the defendant pointedly and directly stated on 30th November 2018 that the defendant had abandoned the counterclaim – see pp. 35-36 of the Record of Proceedings.
I move to the third issue: issue of tendering incomplete RGCSSS. This has become trite or rather, the pattern, in the final written addresses of the defendant on the sister cases,such that I now take judicial notice of it.For reasons best known to the defence counsel, this issue has been repeatedly raised in all the other sister cases and repeatedly decided, apart from the first on which judgment was delivered: AKPOLISI CECILIA V. ABIA STATE UNIVERSITY [supra], in which the full RGCSS was not actually tendered. This is even when it was obvious from the record of proceedings admitting these documents and read in the open Court to the hearing of all parties and their counsel that the full and composite RGCSSS was tendered. The complete RGCSSSin the instant case was admitted in this Court on 23rdApril 2018 as Exhibit CWG – see pages 9 & 10 of the record of proceedings. In admitting the document, the Court noted the distinctive peculiarities of the document, the missing page and the fact that, it ended on p. 59 written at the top of the page alone.
These distinctivenesses were read to the hearing of everybody present in Court, including the learned counsel to the defendant, who franked this final written address of the defendant. I do not therefore know why the learned counsel to the defendant would turn round to claim that it was not the composite RGCSSS that was tendered and admitted. Though, I observed that the learned counsel to the claimant did not directly reply this issue but just went ahead to argue that, the RGCSSS was a subsidiary law, but this does not relief me of my responsibility to inquire into the truth of the matter, as the Court is not bound by the address of counsel but, by its record and the law – see Lucky v. State (2016) LPELR-40541 (SC) 34-35, A-A; UBA v. Mustapha (2003) LPELR-6203 (CA) 31, A; Lawson v. Afani Continental Co. Nig. Ltd &Anor. (2001) LPELR-9155 (CA) 22, A-C; andAliyu&Ors. v. Intercontinental Bank Plc&Anor(2013) LPELR-2076 (CA) 35, A-F.
It would have beenan entirely different kettle of fish if the learned counsel to the defendant were challenging the admissibility of the composite RGCSSS on the ground that incomplete RGCSSS was frontloaded, while the full and composite copy was tendered.But the case being made now is that, the RGCSSS was tendered exactly as frontloaded. As this is not the case, and the learned counsel insisted on creating his different record of proceedings, I think, I should not waste my time on this issue.
In any case, the law did not say willy-nilly, a document pleaded but not frontloaded must be rejected, not to talk of a document pleaded and for which incomplete copy was frontloaded,but the full composite copy was tendered and admittedwithout objection till date – see Ogboru v. Uduaghan (2010) LPELR-3938 (CA) 38-40, E-Gand Minister of Works, Housing and Urban Development &Ors v. Ogungbe (2018) LPELR-45977 (CA) 35-40, D-A, on the fact that, once a document is pleaded, it could be admitted even if not frontloaded.The rules of this Court gives this Court the vires to ignore non-compliance with its rules in the interest of justice and even demands of the Court to strive to eschew technicality and to promote substantial justice over technicality – see Order 1, Rules 9(2) & (3) and Order 5, Rules 6(2) & (3) of the NICN Rules. I take note of the fact that, objection on admissibility of documents was deferred to final written address stage in the instant case,but, the learned counsel to the defendant did not indicate while the RGCSSS was being, tendered admitted that, he had any objection against it and which he reserved till the final address stage,as he did with other documents objected; and has not, even said he is objecting to its admissibility up till now. The learned counsel is only invariably contending the evidence of what was actually admitted as Exhibit DWG. And that is what calls for resolution. Once the issue of what exactly was admitted is resolved, that ends the matter because inferentially, the learned counsel to the defendant concedes the fact that, the composite document is admissible.
In any case, even, if the learned counsel had intended to challenge the admissibility of Exhibit DWG because the composite copy was not frontloaded before it was tendered, it cannot be of avail in the instant scenario,by virtue of Ogboru v. Uduaghan [supra],and section 12(2)(b) of the National Industrial Court Act [NICA], which gives this Court the vires to admit documents in the interest of justice, notwithstanding any contrary provisions of the Evidence Act.This document was pleaded and the provisions relied upon frontloaded. The defendant was therefore not taken by surprise in tendering the composite copy. The learned counsel to the defendant has not also disputed the authenticity of the document and its contents. It definitely would be anti-justice, for the Court, at this stage, to reject a document, made by the defendant itself, pleaded by both parties and which document, is potentially a subsidiary legislation, after it had been tendered and admitted. This is more so, when the authenticity of the document is not been challenged.
And what is more, in the instant case, this composite document was admitted without opposition from the learned counsel to the defendant, who had indicated documents objected and said he would defer his objection on any document to the final written address stage. The learned counsel has not raised any objection against the admissibility of the RGCSSS as Exhibit CWG till now,but merely said the incomplete document was tendered and as such, would not be enough for the Court to do justice to the issue of whether or not the RGCSSS was a subsidiary legislation. Since the Court has found that, the composite and complete [except the supposedly missing page noted] RGCSSS was tendered and not the fragments, as alleged by the learned counsel to the defendant, the argument of the learned counsel to the defendant on tendering the incomplete RGCSSS, therefore lacks factual basis and consequently misplaced. It is accordingly dismissed. I therefore hold that the complete and composite copy of the RGCSSS, except with regard to the supposedly omitted page noted in admitting it, was tendered and admitted by the Court.
In any case, it is even clear that, no page of Exhibit CWG [the RGCSSS] as tendered is actually missing. The page 4, which the Court said wasmissing during the admission of the document at trial, it would appear,on a closer perusal that,itis not actually missing; and that, this arose from the incoherent numbering of the document itself. I found that Exhibit DWG [the document in issue] had different numbering at the top and bottom – see for example, page 2. It has page 2 at the top and page 3 at the bottom of the same sheet. I think that must be what is applicable to page 4, which I said, while admitting the document that, it was missing because, I found that, the top was not marked with any pagination while the bottom was marked with 5, which led to my earlier holding that page 4 was missing. My present deductions must be correct because, further perusal showed the same pattern whereby the pages have different numbering at top and bottom – see further pp. 7 for 8, 8 for 9, 9 for 10, 10 for 11 like that like that. Even this fact, I have invariably noticed at trial while admitting the document but without fathoming the implication on the page 4 I said was missing at that time. This is because; I had noted the incoherent pagination while admitting the document when I said of the document thus:
“…running from p. i-iv (Roman Numeral) of Table of Contents, from p. 1-5 but from p. 7 having 7 at the top and 8 bottom to 58 top and 59 bottom to another 59 top alone and p. 4 missing admitted as EXHIBIT CWG.”
This was how the document was admitted. It is thus clear that the page marked 5 at bottom must be the same page as page 4 at top but with the marking missing either due to photocopying error or as contained in the original. I therefore reiterate my holding that the composite RGCSSS was tendered and admitted as Exhibit CWG; and hereby doubly dismiss the arguments of the learned counsel to the defendant on the issue that incomplete RGCSSS was tendered. These arguments were totally misconceived and lacked factual and evidential planks. Having found that the composite RGCSSS was tendered and admitted, that ends the issue and my decisions on the preliminary issues. I shall now go to my decision on the merits of the case.
- Decision on the Merit of the Substantive case
I adopt the two issues formulated by the learned counsel to the defendant, as meeting the issues arising from the peculiar facts of this case. But the issues are formulated in prolix manner. I shall therefore reformulate them in more concise manner. These are the issues as reformulated:
- Whether the employment of the claimant in the instant case was lawfully determined?
- If the answer to 1 above is in the negative, whether the claimant has adduced sufficient evidence to enable the Court grant the reliefs claimed?
I now take the two issues seriatim.
Whether The Employment Of The Claimant In The Instant Case Was Lawfully Determined?
In determining issue 1, the followingposers must be answered: A. Which set of conditions of service is applicable to the employment of the claimant at the time of its termination? B.Isthe employment of the claimant hereinimbued with statutory flavour? C. If the answer to B is in the affirmative, did the defendant comply with the provisions of the relevant statutes in determining the appointment of the claimant herein?
I hesitate, not at all, in agreeing with the learned counsel to the claimant that the applicable conditions of service in the instant case are the ones contained in the RGCSSS. The learned counsel to the defendant has argued in no small measure that, the applicable conditions of service are to be found in the letter of appointment [Exhibit CWA] by virtue of its paragraph 2(b) which gives each party to the contract of service the right to terminate at will just by issuance of a month’s notice or salary in lieu thereof. The learned counsel cited authorities on the fact that,the contract of employment, as contained in the instant letter of employment, must be construed to determine if the appointment was wrongfully terminated. The case of Idoniboye-Obu [supra] was particularly relied upon. The learned counsel to the claimant countered this, and argued that, on the contrary, by paragraph 2(a) of the letter of appointment, which made the employment subject to the ASUL, and by virtue of the subsequent promotion of the claimant to the senior staff cadre, at which rank, he was terminated, his appointment became governed by the RGCSSS made pursuant to the ASUL, and no longer by the conditions of service of junior staff, contained in paragraph 2(b) of the letter of appointment, andrelied on by the learned counsel to the defendant.
The contention of the learned counsel to the claimant is undoubtedly true. If the employment is subject to ASUL for the purposes of the employment of junior staff, it must be subject to it for all purposes, inclusive of those of the senior staff. A letter of employment, being a mere contract between the parties, as distinct from legislations binding on any subject matter on which they are made, is and has always been subject to any law on such specific contract, simply because, all agreements are subject to specific statutory laws impacting them. So, even without stating it in the letter of appointment, the letter of appointment, in this instance, must be, and is always subject to the ASUL, a subsidiary legislation touching on contracts of employment in the defendant, and doubly so, because, the letter of appointment itself, subjected the appointment to the ASUL. It must be in recognition of the possible transmutation of status and conditions of service from junior to senior staff, by promotion, that, the letter of appointment of the claimant, as junior staff is, anticipatorily and expressly made subject to the ASUL, to obviate controversies like this in future. So, the argument of the learned counsel to the claimant on this point could not have been more right, while the arguments of the learned counsel to the defendant, could not have been less wrong.
In any case, this issue had been raised and exhaustively discussed and settled in my earlier judgment in a sister case: Suit No. NICN/OW/62/2016 – Osuh Sampson v. Abia State University [unreported decision delivered 21st February 2019]. I have not found any reason to depart from my reasoning and the conclusions reached therein. This is a superior Court of record bound by the doctrine of judicial precedent.Its own precedent binds it, unless such was shown, to have been reachedper incuriam, which is not the case here. On the authority of Osuh Sampson v. Abia State University [supra] pp. 22-26 thereof;I hold that, the conditions of service of the claimant became transmuted by his promotion to senior staff by the defendant and that, the applicable conditions of service governing his employment at the point of termination, are as contained in the RGCSSS. I have dealt with the first of the three posers for issue 1, I move to the second, which is whether the employment of the claimant is imbued with statutory flavour.
The kernel of the arguments here is anchored on the dictum of Lord Tobi, JSC in Idoniboye-Obu’ssupra, which surprisingly, both learned counsel to the opposing parties relied upon. I wish to observe at the outset that, it is strange that the learned counsel to the claimant cited the dictum of Lord Tobi, JSC in Idoniboye-Obu’s case to buttress his arguments on this issue. While his arguments were right, the dictum of Lord Tobi, JSC in Idoniboye-Obu’s case totally disagreed with his arguments and agreed with those of the defence counsel. It would appear that, the learned counsel to the claimant never read the authority and if read, never fully digested it, before quoting it profusely to support his arguments. If he had, he would have noticed that, while his case met all other specifications listed therein, it did not satisfy the specification as to how the enacting clause of a subsidiary legislation should be couched.
This is one of several strange things that showed that the learned counsel to the claimant never really bothered to read either the authorities cited by the counsel on the other side carefullynor the final written address of the defence, which was filed before his own; and worse still, he never also bothered to read the record of proceedings. To show what I am saying, few examples suffice. For example, the learned counsel did not cite the exhibits admitted by the nomenclatures assigned to them by the Court, and to make matters worse, the learned counsel was not consistent in the nomenclatures he personally assigned to these exhibits. The Court marked the claimant’s exhibits CWA, CWB, CWC sequentially like that to CWJ. But the learned counsel to the claimant gave them his own inconsistent nomenclatures. Further more, the learned counsel asserted that the ASUL was tendered as Exhibit 13, which assertion was totally incorrect, as this was not tendered at all, nor was there any exhibit marked 13. The exhibits tendered ended at CWJ, thus making the total of all documents tendered by the claimant to be ten in number and not thirteen, as the learned counsel to the claimant would seem to suggest.
There were no exhibits 12 and 13. The claimants tendered 10 exhibits and the last was marked exhibit CWJ. The appointment letter, which the learned counsel had earlier called exhibit 1 is now called exhibit 12, yet still, references to the contents of the appointment letter earlier denoted by paragraphs were changed to clauses. The learned counsel now also referred to the employment letter as exhibit 8, a nomenclature he had earlier given to the RGCSSS, while references to the provisions of the RGCSSS earlier denoted by paragraphs, are later changed to articles, so on and so forth!The learned counsel to the claimant also failed to react directly to the ancillary issue that the claimant was recorded as having appeared before the Committee on Security and testified. Maybe, he wrote the address based on the facts of one of the other sister cases. This is one of the grave dangers of a counsel who did not actually conduct a trial, franking the final written address. If a counsel must frank final address of trials in which he did not participate, he must endeavour to carefully read the case-file from beginning to the end and obtain and carefully read too, the entire record of proceedings. As counsel to the claimant, it is also expected that the final written address of the defendant is carefully read and digested, since it normally comes first, as in this case; and points raised therein must be carefully noted and reacted to in the final written address of the claimant. That is how to write good briefs of arguments. I think the learned counsel to the claimant’s performance in this regard is not edifying.
The learned counsel: CHIEFOKEY EHIEZE, who franked this final written address for the claimant,never participated in the trial of this case. But the defence counsel did not fare much better too, in this regard, though, fully participated in the trial, when he said that, the claimant tendered exhibit CWJ under cross-examination at page 2 of his final written address, whereas, this was tendered in theexamination-in-chief and likewise, the erroneous assertion that incomplete RGCSSSwas tendered, earlier dealt with under preliminary issues. These various inaccuracies/anomalies, made the reading and comprehension of the final written addresses of the parties, tedious, especially that of the learned counsel to the claimant. But nonetheless, the address of the learned counsel to the claimant answered the issues germane to the determination of this suit, albeit inelegantly. A badly written address cannot be thrown into the dustbin because of its inelegance. A court is bound to carefully peruse it to see the merits of the arguments contained – see Gau v. Gau (2014) LPELR-24199 (CA) 16-19, A-E. In any case, a court of law is not even bound by the addresses of counsel but by the pleadings and evidence before it and the correct position of law on these – see Kolomi v. Samaila (2017) LPELR-43321 (CA) 17, C-F.
I hold the view that the dictum of Lord Niki Tobi, JSC did not support the case of the claimant but rather that of the defendant on the issue of when conditions of service would be deemed to be a subsidiary legislation imbuing an employment with statutory flavour. But that is not the end of the matter. This same issue was raised in the sister caseOsuh Sampson v. Abia State University [supra] and extensively examined and decided at pp. 26-42 thereof. This Court,being a superior Court of record, is bound, like I stated earlier, to follow its decision, if it is not shown to have been arrived at per incuriam. I rely on this authority to hold that,the debatable concurrent dictum of Lord Niki Tobi, JSC in Idoniboye-Obu’s supra, with the greatest respect, does not represent the current position of the law but that, the current position of the law, as stated in the lead judgment in Idoniboye-Obu’s case and in a long line of other Supreme Court’s authorities, has most recently been reaffirmed in Comptroller-General of Customs v. Gusau (2017) LPELR-42081 (SC), which represents the current position of the Supreme Court on the issue.
This is to say, the dictum of His Lordship Niki Tobi, JSC,in Idoniboye-Obu’s caseis not in consonance with the lead judgment in thecaseand the latest Supreme Court’s decision on the issue, as reflected in Comptroller-General of Customs v. Gusau [supra]. Based on Comptroller-General of Customs v. Gusau [supra] and as espoused in my earlier decision:Osuh Sampson v. Abia State University at pp. 26-42 supra, I am of the very firm conviction that, the arguments of the learned counsel to the defendant that, the RGCSSS is not a subsidiary legislation and that, the employment of the claimant is not clothed with statutory flavour are highly erroneous and that;the arguments of the learned counsel to the claimant that, the RGCSSS is a subsidiary law, forming part and parcel of the ASUL and therefore clothed the employment of the claimant herein with statutory flavour,are unassailed and obviously correct.I am of the view too, that, this is appropriate situation whereby the Court can invoke Haruna v. University of Agriculture, Makurdi&Anor (2004) LPELR-5899 (CA) 38-39, E-E, to give the RGCSSS judicial notice as a subsidiary legislation. Hence, the second poser for issue 1 is resolved in favour of the claimant and against the defendant. I therefore hold that the RGCSSS is a subsidiary legislation made pursuant to the ASUL and that; the employment of the claimant is therefore clothed with statutory favour. I move to the third poser to resolve issue 1 completely. This is the issue of whether the defendant complied with the relevant provisions of the RGCSSS in determining the appointment of the claimant herein.
Here, the argument of the learned counsel to the defendant is that the claimant was given fair hearing when he was invited to the meetings of the Special Committee on Security and he attended and gave testimonies upon which he was found guilty and terminated. The learned counsel to the claimant did not directly answer this issue but continued to argue that the claimant was not given fair hearing in accordance with Chapter 2:14(iii) of the RGCSSS, as if he was not aware of this line of argument. I am of the firm conviction that, the fact that, it was recorded in the Minutes of the 3RD Meeting of the Council Ad-Hoc Committee on Security in Abia State University [Exhibit CWJ] pp. 10-25 [also tendered by the defendant as Exhibit DWC] that, the claimant attended and interacted with the Committee enjoyed the presumption of regularity of official acts and records – see Onyia v. Mbiko&Anor (2014) LPELR-23028 (CA) 23-24, D-B. Thus, the person, who disproves this regularity, has the burden to prove the contrary asserted – see Ekwebelam v. Ekwebelam&Anor (2012) LPELR-20874 (CA) 97-99, F-D.
I have checked and observed the copious interactions between the claimant and the Committee. Thus, I agree with the learned counsel to the defence that the claimant has the burden to show that the records of the proceedings of the Committee were forged as alleged. This, he must do by cogent evidence and not by mere written deposition unsupported by any further verifiable evidence. And this is even more so, when the allegation that the report was concocted is an allegation of crime [forgery], which must be proved beyond reasonable doubt by whoever makes it, regardless of being made in a civil suit – see Nwanosike&Anor v. Udenze&Anor (2016) LPELR-40505 (CA) 76-79, F-E. I found that the claimant appeared before the Committee as asserted and interacted with it.
However, that is not the end of the matter. Failure of the claimant in this respect would not affect his case because, the claimant pleaded and led evidence inconsistent with the fact that appearance before the Special Committee on Security satisfied the requirements of Chapter 2:14(iii) of the RGCSSS. The learned counsel to the defence failed to appreciate the nature of the claims before him. The real issue in controversy, as pleaded by the claimant, is that the defendantdid not terminate the claimant in accordance with the laid down procedures under Chapter 2:14(iii) of the RGCSSS.This is the issue to be answered squarely. This, in my view, the defence has failed to answer. That the defendant set up a Special Committee to investigate security breaches in the University and that the claimant appeared before the said Committee, have obviously not answered the issue of non-compliance with Chapter 2:14(iii) of the RGCSSS. Once it is pleaded that the defendant failed to follow the procedures therein specified. She is duty-bound, in order to succeed in her defence, to show in what manner she complied or why it could dispense with compliance. The law in this regard is strict. Once a statute prescribed a specified manner of doing a thing, no other manner than the one specified must be followed – see Saibu V. Kwara State Polytecnic, Ilorin (2008) LPELR-4524 (CA) 32-37, D-E, where it was held that:
“The above Section of the law states the procedure for disciplinary action to be taken against a confirmed senior technical or academic staff. All the steps in the process must be followed meticulously to ensure absolute compliance. Let us assume that the failure of the Appellant to obey the terms of Paragraph 6 of Exhibit 1 amounts to misconduct. The Respondent was obliged to follow the process laid down in S.33 of the Act before he can be sanctioned. When the mandatory procedure set out by statute is not complied with, any disciplinary action taken by the Respondent against the Appellant must be declared null and void. In this case, the provisions of S.33 (1) of the Polytechnic Law were side tracked. The rights bestowed on the Appellant by the law as an employee engaged in an employment with statutory flavour cannot be lightly taken away by the Governing Council of the Polytechnic. See PDP v. INEC (1999) 7 SCNJ 297 and (1999) II NWLR Pt. 626 Pg.200.
‘In other words, the Respondent cannot ignore the provisions of the law which created the institution. There is no way the retirement of the Appellant in this case can be lawful without recourse and compliance with S.33 of the Polytechnic Law . See Olaniyan v. Unilag (1985) 5 NWLR Pt. 9 Pg. 599; Eperokun v. Unilag (1986) 4 NWLR Pt. 34 pg.162.
Let us look at S.33 (1) of the Polytechnic Law again. S.33 (1) (a) provides that notice must be given to the employee specifying the reason therefor. None of the letters written to the Appellant Exhibits 12, 14 & 15 specified the reason that he had failed or was unable to give adequate particulars or satisfactory explanations on the circumstances surrounding the termination of his appointment at his former place of work. There was no letter from the respondent to the Appellant accusing him of suppressing information about hisprevious employment and asking for an explanation of why he had not given that information since 16th November 1987.
Step (b) is for the Governing Council to make arrangements for an investigating committee to investigate and report on the matter. Paragraphs 9, 10 & 11 of the Respondent's counter-affidavit to the originating summons spoke of the invitation of the Appellant by the sub-committee of the screening of staff of the Respondent and the finding of that committee. Paragraph 9 referred to the Constitution of a visitation panel which did not write to the Appellant. Paragraph 10 about a report of the visitation panel, etc. The counter-affidavit had no exhibit to support these assertions. There was no letter from that committee or any other investigation committee to the Appellant. Exhibits 12 & 15 from the office of the Registrar merely asked for information. Exhibit 14 did not state the specific disciplinary charge. Step (c) that the person be given an opportunity of making representation in person before the investigating committee was also not fulfilled.”
This position of the law was reiterated in Alhassan V. Abu Zaria &Ors (2009) LPELR-8138 (CA) 49, B-F.Therefore, no dispute is maintainable against this hallowed and settled position of the law in Nigeria. That is the law and it must be obeyed.Chapter 2:14(iii) of the RGCSSS contains the mandatory conditions precedent to the termination of the appointment of the claimant herein. It provides thus:
“Before terminating an appointment for “reasonable cause” other than on grounds of infirmity of mind or body, the Disciplinary Committee of Council shall:
- notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment; and
- give the member of staff concerned opportunity of replying to the grounds alleged against him.
- Be allowed to appear before the Disciplinary Committee investigating his case;
- Be entitled to appeal against the decision of Council through the Head of Department, Dean of College or Vice-Chancellor.”
These are the provisions of the RGCSSS, which the claimant pleaded that the defendant must comply with to validly terminate his appointment. The claimant pleaded that the defendant failed to issue him query and failed to invite him to any Disciplinary Committee and that he was not equally afforded any opportunity to defend himself in accordance with the said Chapter 2:14 of the RGCSSS – see paragraphs 9-11 of the Statement of Facts. All the steps taken by the defendant, the claimant pleaded, were contrary to Chapter 2:14(iii) of the RGCSSS. The defendant is bound to provide answers that she met these conditions precedent specified in Chapter 2:14(iii) of the RGCSSS. And these are the answers, which the defendants must provide in meeting the case of the claimant. The defence of the defendant is as pleaded in paragraphs 7-10 of her Amended Statement of Defence, the gravamen of which is that, a Special Committee on Security was set up to investigate the causes of security breaches in the University to which witnesses were invited, including the claimant who attended; and that, the claimant was found guilty by this Committee and consequently terminated.
Thus, the defence that witnesses were called to testify at the meetings of this Committee and not that, anybody was invited to stand trial or disciplinary procedures thereat clearly does not satisfy the mandatory specifications of Chapter 2:14(iii) of the RGCSSS. Even if the Court is ready to consider the possibility of invoking the doctrine of substantial compliance to deem the Minutes of the Special Committee on Security as being in substantial compliance with the dictates of Chapter 2:14(iii) of the RGCSSS, how does the procedure adopted by the defendant tally substantially with the dictates of Chapter 2:14(iii) of the RGCSSS? Chapter 2:14(iii) of the RGCSSS clearly envisages a sort of trial based on proper notice in writing to the alleged culprit of the allegations against him, coupled with giving him the opportunity to respond to these allegations in writing too, and further giving him the opportunityto be heard before the quasi-judicial Committee of the defendant specifically set up for that purpose.
Does the method herein adopted, whereby a person is invited merely as a witness for the sole purpose of interaction with the Committee, satisfies the need to make the alleged culprit aware on time before his appearance before the disciplinary committee to defend allegations against him? I do not think it does. If I may venture, the reason for requiring that the allegations be served on the alleged culprit in writing before his appearance before a committee to try him is to afford him enough time to study the allegations and prepare for his defence and to avoid a situation whereby he would be taken by surprise.I cannot find how the interaction with the Special Committee on Security satisfiesall these requirements. The defendant did not plead nor lead evidence showing that it served notice of any allegations on the claimant in writing and neither did it plead or lead evidence that the claimant responded to these in writing or that a disciplinary committee was set up to consider these allegations and that the claimant appeared before it and defended himself.
From the forgoing, it is clear that a person merely invited as a witness to the meeting of a Committee, cannot be turned into an accused without prior written notification of the allegations against him and that he was so charged; and to make matters worse, be found guilty thereafter,just like that! This would amount to trial by ambush. It is clear that the said Special Committee on Security is a mere fact-finding one and does not possess the power to find anybody guilty of gross misconduct upon which basis dismissal or termination would be based. It can only establish a prima facie case against a person, and if such person is a staff, provide the impetus for the defendant to set up the proper disciplinary procedures against him.
In any case, my own understanding of the provisions of Chapter 2:14(iii) of the RGCSSS is that, a query must be issued to the claimant, stating the allegations against him, as the grounds on which his appointment is being considered for termination. He must be given an opportunity to respond to thesewritten allegations in writing too. Thereafter, if there is need to proceed further, a Disciplinary Committee of the Council must be set up to try the claimant and he must be given an opportunity to appear before this Disciplinary Committee to make representation. The Council must thereafter exercise its power to determine the appointment of the claimant, if the Disciplinary Committee set up finds him guilty. I cannot find where the defendant pleaded that any query was issued to the claimant and neither could I find any place where it was pleaded that the claimant responded to this query in writing nor that a Disciplinary Committee of the Council was set up to investigate the claimant and that,the claimant appeared before it; and it found the claimant culpable and that, based on this, the appointment of the claimant was terminated by the Council.No evidence was led along this line too. Even if led, it would have been led on unpleaded fact and thus, go to no issue – see Ita&Anor v. Dadzie (1999) LPELR-10108 (CA) 27-28, B-A.I therefore hold that the defendant did not comply with the mandatory statutory requirements provided in Chapter 2:14(iii) of the RGCSSS in terminating the appointment of the claimant. Thus, the third poser under issue 1 is resolved against the defendant and in favour of the claimant.
Having resolved all the three posers under issue 1 against the defendant and in favour of the claimant, it follows that issue 1 is resolved in favour of the claimant and against the defendant. I therefore hold, without any equivocation that,the employment of the claimant, in the instant case, was not lawfully determined. I shall now move to issue 2.
If The Answer To 1 Above Is In The Negative, Whether The Claimant Has Adduced Sufficient Evidence To Enable The Court Grant The Reliefs Claimed?
I have found that the claimant tendered Exhibit CWG [the RGCSSS], Exhibit CWA [the letter of appointment as Junior Staff], Exhibit CWF [letter of promotion as Senior Staff] and Exhibit CWE [the termination letter]. These are the documents the claimants need to establish the case presented before the Court; and I have found that the contents or provisions were sufficient to determine the issues raised and to be decided in the case. The case of the claimant was that he was employed as junior staff and gained promotions to the rank of senior staff and thus, became entitled to the rights contained in the RGCSSS; and that, his appointment was terminated at the senior staff rank without compliance with Chapter 2:14(iii) of the RGCSS. The claimant led evidence along these lines.The defendant did not effectively dispute these allegations in both her pleadings and the evidence led, as found by the Court. Since the Court found that, the RGCSSS made pursuant to the ASUL is a subsidiary legislationconferring the claimant’s employment with statutory flavour, it follows that, the claimant, having provided sufficient evidence in proof of his case, must be entitled to the reliefs claimed in the instant case, which are all connected with reinstatement, which is the proper relief granted when an employment imbued with statutory flavour is unlawfully determined – see Adeyemi v. NITEL Plc(2009) LPELR-4982 (CA) 34, B-E.
Before signing off on issue 2, let meobserve in passing that, while it is desirable that unscrupulous elements be shown the way out of our public services and that, while it is also desirable that security of persons and property should be given prime importance at all time in all public institutions and organisations. However, whenever and wherever issue of employment clothed with statutory flavour is concerned, the Court only examines this issue from the context of compliance with the statutory procedures prescribed for terminating such an appointment. Where these procedures are not complied with, the Court must hold that the employment was not lawfully determined and order reinstatement. This is in tandem with the dictates of the rule of law as against the rule of might, whims and caprices of chief executives/managements of public institutions. The rule of law therefore takes precedence over the rule of might and over all other considerations, except perhaps, when the State declares a state of emergency, which still has procedures prescribed, and which is not the case here. What this means, is that, it is in the interest of the chief executives/managements of public institutions and bodies to always endeavour to follow the proper procedures laid down by law in initiating termination of employments of their staff garnished with statutory flavour.
There is a basic time-tested wisdom behind clothing employment of some categories of public servants with statutory flavour. The reason is to give this category of officers the latitude of mind to exercise their assigned duties without fear or favour because; these duties are for the good of the general public and cannot be well carried out in an atmosphere of fear induced by lack of security of tenure. Thus, the law views with serious suspicion any ostensible altruistic posturesby chief executives/managementsthat tend to erode the security of tenure granted by clothing these employments with statutory flavours without compliance with the procedures duly prescribed by law. Illegality committed in punishing a supposedly public-servant-culprit is, itself, of greater disobedience to law and order than the original offence attributed to the supposed civil-servant-culprit. This is so because, it beclouds the means of unraveling the culpability of the supposed public-servant-culprit and denudes the catharsis that naturally comes with following the proper procedures prescribed by law to remove tenured public officers whose employments are clothed with statutory flavours.
All the rules of fair hearing entrenched in the conditions of service that clothed tenured employments with statutory flavours are geared toward ensuring that the supposed public-servant-culprits, the accusers and the general public are satisfied that justice had been done in terminating a public officer in accordance with the laid down procedures. Anything outside this is an invitation to entrenchment of lawlessness. Laws [procedures] must be obeyed in implementing laws: that is what is called the due process of the law, the precursor of rule of law.It simply means that nobody, however highly placed, should be in such a hurry under the pretext of doing urgent public assignment or safeguarding public interest/security, such that s/he would bypass the procedures prescribed for proper removal of a public servant with secured tenure by removing him from office in a jiffy or by simply choosing his own procedure different from the one prescribed by law. If such happens, courts are duty-bound to declare it a nullity. The earlier this is understood, the better for the chief executives/managements, the supposedly culprits, the public institutions, and the general public.
This is because the public alone loses when courts order reinstatement with payment of arrears of salaries in situations where statutory employmentsare terminated without following laid down procedures. It means that an employee, who had not worked for the period in issue, would have to be paid from taxpayers’ funds for works not done and for a fault not that of the employee, but plainly that of the chief executive/management who terminated the employee without following procedures. And the law is justified for mandating payment of full salaries in situations like this, to amplify the importance attached to the secure tenure of public servants for the greater benefits of the society as earlier explained above.
This is the more reason why chief executives/managements must exercise patience to terminate in accordance with the procedures prescribed by law. The wheel of justice might grind slowly, but this serves the society better, by grounding eventually to a rationalized decision and justified end, expatiating catharsis in the reasoned decision of the court on the determination of the civil rights and obligations of citizens versus public institutionsas represented by the chief executives/managements, who themselves assumed offices on the platter of the same law being treated with contemptuous ignominy. I cannot find any reason or justification for a hurry to bypass procedures laid down for termination of tenure of public servants, when the law in its wisdom anticipated that, there are times when the dangers presented by leaving a suspected public servant in his employment while following the long procedure of termination, might be grave and thus, demanding urgent action to remove the public servant; and consequently provided for the remedy of suspension in such situations, pending the completion of investigation and appropriate disciplinary actions, inclusive of termination. Chief executives of government institutions would do well in the interest of the general public to explore the remedy of suspension in all cases of perceived urgency in removing a public servant with secured tenure temporarily instead of treating the laws of the land, under which they too would seek protection if unjustly treated, with contemptuous disregard. I think that settles that.
Finally, in passing too, let me observe equally that, I have not by any means found the claimant herein liable for any of the allegations raised by the defendant against him. I only found that the claimant appeared before the Special Committee on Security. I did not examine these allegations and his defence since, they did not fall for consideration in determining whether or not proper procedure was followed in terminating the appointment of the claimant, which is the issue that falls for determination in the instant case. Even, wereI to look into that, assuming my decision that it was not necessary for me to look into the culpability of the claimant, as it was not the issue that fell for resolution, is wrong,in giving my decision on this, I cannot yet find the claimant liable for any of the allegations pleaded against him from Exhibit CWJ to warrant his being terminated.No negligence or incompetence or dereliction of duty alleged has been established against him; and I so hold. Be that as it may.
It is clear that issue 2 must be resolved in favour of the claimant and against the defendant. I therefore resolve issue 2 in favour of the claimant and against the defendant. In view of this, I hold that the claimant has adduced sufficient evidence to justify the grant of all the reliefs claimed in this suit. The next thing for me is, therefore, to conclude the judgment by granting the reliefs claimed by the claimant in the instant case, since I found that he is entitled to these reliefs.
On the authorities of Comptroller General of Customs &Ors. v. Gusau[supra] p. 9, para. 4 and New Nigeria Newspapers Limited v. Atoyebi (2013) LPELR-21489 (CA) 41, A-B, I hereby grant all the 4 reliefs claimed by the claimant as per his Statement of Factswrongly titled ‘Statement of Claim’. For the avoidance of doubt:
- It is hereby declared that the defendant’s termination of the appointment of the claimant as Senior Security Officer in the Security Department of the defendant vide the letter dated 28th June, 2016 is illegal, and unlawful.
- The said termination is hereby set aside for being illegal and unlawful.
- The claimant is hereby reinstated to his said position as Senior Security Officer in the Security Department of the Abia State University.
- The defendant is consequently hereby ordered to pay to the Claimant all the entitlements due to him by virtue of his said position including all salaries and allowances owed him from the said 28th day of June, 2016 till compliance with this judgment.
Cost ofN100,000.00 [One Hundred Thousand Naira only] is awarded in favour of the claimant. The defendant is given 30 days grace to comply with the judgment of this Court herein, failing, which the judgment sums startto attract 10% interest.
Judgment is entered accordingly.
HON. JUSTICE O.O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA