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 16THMAY2019
ABIA STATE UNIVERSITY………………………………DEFENDANT
This suit was commenced by complaint dated 26/09/2016 and filed 27/09/2016 [the date the filing fee was paid, distinct from 26/09/2016 stamped on the complaint]. The Statement of Facts [wrongly tagged ‘Statement of Claim’] was dated 26/09/2016 and filed 27/09/16. It was accompanied with the Claimant’s Statement on Oath, the List of Documents and the List of Witnesses. Paragraph 15 of the Statement of Facts contains the following reliefs:
1. 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.
2. An Order of Court setting aside the said termination for being illegal and unlawful.
3. An Order reinstating the claimant to his said position as Senior Security Officer in the Security Department of the Abia State University.
4. 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 against this suit. 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 was adjourned to 18th January 2017 for further mentionvide proceedings in Suit No. NICN/OW/58/2016 – AKPOLISI CECILIA V. ABIA STATE UNIVERSITY [a sister case]. On 18th January 2017, the matter came up as adjourned, andthe Statement of Defence was deemed as properly filed and served, also vide the sister casesupra. Subsequently, the claimant reacted to the Statement of Defence 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 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 the matter came up before me, Hon. Justice Anuwe having been transferred from the Owerri Division. 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 suomotudirected 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 the issue consolidation and 12th December 2018 for hearing. The matter came up as adjourned on 11th December 2017 and the Court acceded to the prayers of the counsel to the parties not to consolidate the cases. Meanwhile, the learned counsel to the defendant brought to the attention of the Court that there was a motion to regularise the Amended Statement of Defence as properly filed but that, it was without a written address. On the agreement of counsel to the two sides, the matter was adjourned to 12th December 2017 to enable counsel come up with the written address, vide proceedings in its own file this time around.
However, on the 12th December 2017, the learned counsel to the defendant filed the said written address but did not move the motion before the case was adjourned off record and till the conclusion of trial whilehowever, similar motion in the sister case was moved without opposition and granted. Maybe, this omission was because the sister case [supra] went to trial on this date and took long, and the other cases, including this, were consequently adjourned off record to 13th March 2018. On 13th March 2018, the case was again adjourned off record to 23rd April 2018 vide proceedings of that day in another sister case: Suit No. NICN/OW/59/2016 – Mbagwu Ignatius v. Abia State University. On 23rd April 2018 it was further adjourned off record to 22nd May 2018. On 22nd May 2018, the matter came up as adjourned and the case was opened.
Having got to this juncture, let me first summarise the parties’ pleadings, on the bases of which issues were joined, evidence led and arguments proffered in the final written addresses, before coming to the trial proceedings.
CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS
A. Statement of Facts
The claimant said he was a staff of the defendant at all time material to this suit, having been employed in its Security Department by a letter dated 1stDecember 1992,and that his appointment was confirmed by a letter dated 27th July 1999. The claimant said by dint of hard work, rewarded by promotions, he was cumulatively promoted to the rank of Senior Security Officer by a letter dated 28th June 2016 and that; it was on this rank that the defendant terminated his appointment by a letter dated 28th June 2016. The claimant said,by virtue of this last promotion,he was a senior staff of the defendant, whose appointment was governed by the Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)[hereinafter called ‘RGCSSS’]. The claimant said his termination was 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 19thJuly 2016 and that, the defendant refused to reply the said letter. The claimant said, through, his counsel, by a letter dated 17th August 2016 and served on the defendant on 18th August 2016, he also gave the defendant one-month notice of his intention to commence legal action, and that, the defendant refused to reply the pre-action notice, thus, this action was brought. The claimant gave the defendant notice to produce originals of these letters at trial, failing, which copies would be tendered. Based on the above, the claimant claimed the reliefs already outlined earlier above.
B. Statement of Defence
The defendant reacted to the Statement of Facts vide the Amended Statement of Defence filed 8th December 2017. The defence was that, the reckless 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. And that as a result, the defendant set up a Committee to investigate the breach of security pursuant to section 5(1) & (2) of the Abia State University Law and the RGCSSS. The defendant said witnesses, including the claimant, were called to the meetings of the said Committee, which sat in the open. The defendant said the Committee found the claimant guilty of monumental failure and inability to discharge the functions of his office as security officer. The defendant said none of the two notices mentioned by the claimant was served on her and also that the notices did not even comply with the law. The defendant said the termination of the claimant was lawful and in accordance with the laws and the RGCSSS and that, the claimant is not entitled to the reliefs claimed. The defendant also counterclaimed for the cost of N2,000,000.00 in defending this action.
C. Reply and Defence to Counterclaim
The extant Reply by the claimant is the one filed 12th April 2017 to the original Statement of Defence before the Amended Statement of Defence was filed. In it, the claimant reacted to the original Statement of Defence 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 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 both parties fought the suit and evidence led in proof thereof. On these bases too, argumentswere supposedly canvassed by each of parties’ counsel and on whichthe Court too, would have to resolve the dispute.
TRIAL AND ADOPTION PROCEEDINGS
On 22nd May 2018, trial commenced in this suit with the claimant opening his case by testifying on behalf of himself as CW1. CW1 elected to speak Igbo. The Registrar of Court 1, Simeon Ikpa, was assigned the duty of interpreter. CW1 was sworn on the Holy Bible. After complying with all other initial preliminaries, CW1 adopted his witness statement on oath deposed on 26th September 2016. All the documents brought forward by the claimant were admitted without objection from the defendant’s counsel, and were accordingly marked Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,and13 respectively. After this, CW1 said he was not liable for the counterclaim. Thereafter, the learned counsel closed the testimony of CW1 and the case was adjourned to 24th May 2018 for cross-examination of CW1. The matter came up as adjourned on the 24th May 2018 for cross-examination and the learned counsel to the claimant said he was not feeling well; hence, the case was adjourned to 6th June 2018 for cross-examination.
The matter came up on the 6th June 2018 and CW1 was cross-examined, and the case of the claimant closed without re-examination. Thereafter, the case was adjourned to 14th June 2018 for defence. The Court did not sit on this date and neither did it sit on the three other subsequent adjournments until 30th November 2018 when it eventually sat. This was due to my transfer and the time fiat was granted to complete my part-heard matters. On the 30th November 2018, this matter could not go on, as it was late before it was called. It was, as a result, adjourned to 6th December 2018, on which date, the Court did not sit. It was therefore adjourned off record to 11th December 2018. The Court sat on 11th December 2018. The defence opened with DW1 on this date. DW1 adopted his written deposition and tendered only one document, which was admitted as Exhibit D1 without opposition. Thereafter, DW1 was cross-examined without re-examination and the defence closed.
Thereafter, the case was adjourned to 7th February 2019 for adoption of final written addresses of the parties. The Court did not sit on this date but sat on 22nd March 2019 instead. On this date, the learned counsel to the defendant did not come but sent message to the Court, that it should deem the final written address of the defendant already filed as adopted. While the learned counsel to the claimant adopted the final written address of the claimant, the Court deemed the final written address of the defendant as adopted in absentia. There was no reply on points of law. The case was thereafter adjourned to 5th April 2019 for judgment. The judgment was not ready by this date and it was therefore adjourned sine die till it would be ready and date communicated to the counsel to the parties. I proceed to summarise the final addresses of counsel to the parties.
ADDRESSES OF COUNSEL TO THE PARTIES
A. Defendant’s Final Written Address
CHIEF THEO NKIRE franked the defendant’s final written address. The learned counsel submitted two issues for the determination of the case, to wit:
1. Whether, considering the provisions of Paragraph 2 (b) of the Claimant’s contract of employment [Exhibit 1] 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]
2. Whether Claimant has presented sufficient materials or evidence before this Court in proof of his case [sic]
The learned counsel however argued both issues together. The learned counsel argued that the law is that, a person who complained on termination of employment must found his action on the contract of service and show how it was breached. On this, the learned counsel cited Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 and other authorities. The learned counsel argued that, the Court is only to examine this contract and other inherently incorporated sources. The learned counsel cited Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149 at 162. The learned counsel argued that, the fact that an employer is a statutory body does not mean its employees would be clothed with statutory flavours and cited Fakuade v. Obafemi Awolowo University Teaching Hospital Management Board (1993) 5 NWLR (Pt. 291) 47. The learned counsel argued further that, where an employment was determinable by agreement of the parties simpliciter, it could not be said to have statutory flavour and cited Fakuade’s case supra and Idoniboye-Obu’s case supra. The learned counsel submitted that, the contract between the parties in this case, is as contained in Exhibit 1 and quoted paragraph 2(b) of it as very germane; arguing that, it signifies that the employment was not clothed with statutory flavour and that, in case of termination, the claimant would only be entitled to a month’s notice or salary in lieu thereof.
The learned counsel argued that the claimant anchored his claim to the employment being clothed with statutory flavour on his deposition that his employment was governed by the RGCSSS. The learned counsel submitted that before an employment could enjoy statutory flavour, the statute must expressly so make it so; and that, such regulation must be expressly enacted by parliament or a law making body as a schedule to an Act or Law or as a subsidiary legislation. The learned counsel argued that, just like it was held in Idoniboye-Obu’s case that, the conditions of service drawn up by the Board of NNPC would not enjoy statutory flavour like section 17 of the University of Lagos Act, the RGCSSS drawn up by the Council of the Abia State University would not enjoy statutory flavour too. The learned counsel further cited Shitta-Bey without giving further details.
The learned counsel further referred to the dictum of Lord Niki Tobi, JSC in Idoniboye-Obu’s case supra to buttress his point. The learned counsel submitted that, for this Court to find for the claimant, it must scrupulously examine Exhibit 11 [the RGCSSS] on which the claim to statutory flavour was based, especially the opening paragraph, to see if it specified the section from which the RGCSSS derived its powers and not just the three-page document tendered as Exhibit 11.The learned counsel argued further that, the claimant must tender the entirety of the composite RGCSSS and that failure in this respect, spells doom for the claimant, as the Court is precluded from foraying out of the evidence adduced to fish for extraneous material to support a party’s case. 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. Olanrewaju (1991) 4 NWLR (Pt. 184) at 132.
The learned counsel submitted further that,sections 131, 132 and 133(1) of the Evidence Act are applicable hereon the burden of proof. The learned counsel cited Adana Beverages Ltd v. Galleon (2016) LPELR-40314 (CA); N.B. Ltd v. D.C. Holdings Ltd (2004) 13 NWLR [sic] 436 at 462; and Chime v. Eze (2010) 6 EPR 353on where the burden of proof lies in this instance. The learned counsel argued that, the failure to tender the entire RGCSSS, especiallyfailure to tender the opening paragraph, would not enable the Court to determine the status of the RGCSSS. The learned counsel cited N.B. Ltd v. D.C. Holdings Ltd supra.
The learned counsel submitted that, in any event, the defendant had justified the termination on the ground of gross incompetence of the claimant as a security officer, whichled to total breakdown of law and order in the University and the gruesome murder of students. The defendant argued that, these lapses gave her the vires to exercise its powers under paragraph 2(b) of the contract of service [Exhibit 1] to terminate the appointment.The learned counsel submitted that, the reliance on the RGCSSS is of no avail since the RGCSSS does not apply to the termination of the claimant’s employment nor does it cloth the claimant’s employment with statutory flavour because, it is neither an Act of parliament nor a subsidiary legislation made by parliament. The leaned counsel relied on Idoniboye-Obu’s casesupra and argued that, the claimant’s employment was not provided for anywhere in the Abia State University Law.
The learned counsel argued that, at best, the only remedy the Court could award is damages with reference to the length of notice to which the claimant was entitled. Relying on Idoniboye-Obu’s casesupra, the learned counsel argued that, where a court finds that an employer acts within the terms of contract to terminate an employment, which has no statutory flavour, it would lack the vires to grant any declaratory relief.The learned counsel finally submitted that, the claimant has failed to prove his case and urged the Court to dismiss the case. Thus, ended the final written address of the defendant. I shall now move to the final written address of the claimant.
B. Claimant’s Final Written Address
CHIEF OKEY EHIEZE (KSC) franked the claimant’s Final Written Address. The learned counsel formulated two issues. They are:
1. Whether the claimant has proved that his employment with the defendant enjoys statutory flavour. [sic]
2. Whether the Claimant Proved His Case so as to be entitled to the judgment of the Honourable Court. [sic]
On issue 1, the learned counsel submitted that his issue 1 correspondedto issue 1 of the defendant’s counsel. The learned counsel submitted further that the RGCSSS, which governs the conditions of service of senior staff, is a subsidiary legislation of the defendant and has statutory flavour, and that, as such; the termination of the claimant’s employment was unlawful. The learned counsel cited and quoted sections 28 and 29 of the Abia State University Law to buttress his submissions. The learned counsel submitted that, the RGCSSS is part of the Abia State University Law by virtue of these sections. The learned counsel argued that, the reliance placed on paragraph 2(b) of the letter of employment to argue that the claimant’s employment was not clothed with statutory flavour was wrong because, paragraph (a) of the said letter expressly subjected the appointment to the provisions of Imo State University Edict of 1985 thus, making it to be governed by the Abia State University Edict of 1995. The learned counsel cited Alhassan v. Abu Zaria (2010) ALL FWLR (Pt. 538) 962 at 966 on the meaning of ‘subject to’. The learned counsel cited and quoted the dictum of Lord Niki Tobi, JSC in Idoniboye-Obu’s case supra and argued that, since sections 28 and 29 of the Abia State University Law, which is Exhibit 13, governed the appointment, it has statutory flavours, as it satisfies all the trappings enumerated in the dictum of Lord Niki Tobi, JSC.
The learned counsel argued that, the claimant was employed as junior staff and rose to the rank of senior staff and that, by this virtue, the employment is now governed by the RGCSSS, made pursuant to sections 23 and 29 of the Abia State University Law. The learned counsel submitted that, the RGCSSS provided the procedure of terminating the appointment of the claimant in paragraph 2:14 and cited Adebiyi v. Sorinmade (2004) ALL FWLR (Pt. 239) 933 at 937 to the effect that,once a statute provides the manner of doing a thing, such procedure must be followed, failing,a court would declare such act void.The learned counsel argued that, construing sections 28 and 29 of the Abia State University Law together with Exhibits 1 and 12, the Court would come to the irresistible conclusion that, the employment of the claimant is clothed with statutory flavour.Thus, the learned counsel ended arguments on his issue 1 and moved to issue 2.
Arguing issue 2, the learned counsel to the claimant submitted that,from the totality of the evidence adduced, the claimant proved that the termination of his employment was unlawful. The learned counsel said the claimant tendered Exhibit 12, which is the statute governing the conditions of service of senior staff of the defendant and that, the evidence of the claimant that he was not given fair hearing, either orally or through query, was never disputed. The learned counsel argued that, the defendant tendered Exhibit DW1, the report of the Ad-Hoc Committee on Security and that, this document speaks for itself and, shows that, the said Committee never invited the claimant, which fact was equally admitted by DW1 under cross-examination. The learned counsel submitted that, by these, the defendant conceded the fact that the claimant was never afforded fair hearing before his appointment was terminated.The learned counsel argued that, the reliance placed on paragraph 2(b) of the letter of appointment to argue that the employment of the claimant could be terminated at will was misplaced, as the said paragraph only applies to junior, but not senior staff, which employment is regulated by Exhibit 12 and clause 2(a) of Exhibit 1.
The learned counsel submitted that, by Article 2.14(iii), before the employment of the claimant could be terminated for reasonable cause, other than for infirmity of mind or body, the Disciplinary Committee of the Council must notify the claimant in writing of the allegations against him, give the claimant opportunity to respond to these, and the claimant must equally be allowed to appear before the said Disciplinary Committee and, be entitled too, to appeal the decision of the Council through the Head of his Department. The learned counsel submitted that, these requisites guaranteed the right of the claimant to fair hearing as enshrined in section 36 of the 1999 Constitution. The learned counsel cited Eze v. University of Jos (2017) ALL FWLR (Pt. 898) 101 at 117 on section 36 of the 1999 Constitution. The learned counsel submitted that, as in the instant case, where a statute provides for the right to fair hearing before termination, failure in that regard renders the termination unlawful. On this submission, the learned counsel cited Angel Spinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1353-1354. The learned counsel argued that, the claimant having tendered Exhibits 1 and 12, which said Exhibit 13 was at par with paragraph 12.4(iii), which requires fair hearing and the defendant, having failed to comply with this, the claimant has discharged the burden of proof placed on him; and therefore, entitled to the judgment of the Court. The learned counsel finally urged the Court to set aside the termination and grant all the reliefs claimed. The learned counsel also urged the Court to dismiss the defendant’s counterclaim.
Thus ended the final written address of the counsel to the claimant. There being no reply on points of law, the next duty placed on me is to proceed to the most important duty of a judge in judgment writing: giving the Court’s decision with reasoned explanations and legal justifications. In doing this, 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-visthe correct position of the law. I wish to state that I have carefully complied with the above-stated prerequisites and have equally taken into consideration the demeanours of the witnesses at trial. I wish to state too, that, the Court’s decision would be broken into two parts: the first part would take care of preliminary issues, while the second would deal with the merits of the case.
A. Preliminary Issues
I identify four preliminary issues that must be dealt with before proceeding to give my decision on the merit of this case. This is so because; these issues appear to be threshold. The first is the issue of not moving the motion for leave to amend the Statement of Defence. Thus, it is not clear which is to be used between the original Statement of Defence and the Amended Statement of Defence.On this, I must state that the learned counsel to the claimant did not raise any objection in his address and thus,concedes that the case was fought on the basis of the Amended Statement of Defence. This is definitely true because, DW1 second written deposition, adopted without protest at trial, was based on the Amended Statement of Defence. I wish to recall that attempt was actually made on 11th December 2017 to move the application for leave to amend, which was hampered by the failure to file written address, as required by the rules of this Court, on which basis the application was adjourned to the following day for the counsel to the defendant to regularise the omission.
The learned counsel did file the written address, which is at page 94-96 of file but failed to formally move the motion, while that of the sister case was moved unopposed. It is therefore clear that, had this been moved, it would not have been opposed too. Relying on my reasoning and decision at pp. 14 & 15 of the judgment in the sister case: Suit No. NICN/OW/62/2016– Osuh Sampson v. Abia State University [delivered 21st February 2019]in which exactly the same omission occurred, I deem the Amended Statement of Defence in issue as properly filed and served. I move to the second preliminary issue, which is whether the claimant tendered 11 exhibits; and of which one is a three-page RGCSSS.
The learned counsel to the defendant had, in paragraph 1.1.2 of the Final Written Address stated that the claimant tendered 11 exhibits and that Exhibit 11 was the RGCSSS and also that, the said Exhibit 11 was made up of four pages. The learned counsel to the defendant had made issue out of these in his arguments at pp. 12 & 13, paragraphs 5.1.13-5.1.15 of the Final Written Address by saying that, the failure of the claimant to tender the composite document is fatal to his case. First, I observe that the issue that 11 documents were tendered was only made in the introductory paragraph of the address.No argument was canvassed in its respect. I also observed that the learned counsel to the claimant did not directly reply these issues but his arguments and presentation of facts of the case negated these.However, I observed that, there was an error on the part of the Court in marking the exhibits by marking the 12th exhibit as Exhibit 13 instead of Exhibit 12. I observed too, that the learned counsel to the claimant correctly stated that 12 exhibits were tendered and admitted but incorrectly identified the RGCSSS marked as Exhibit 11 wrongly as Exhibit 12 and sometimes as Exhibit 13.
Now, the claimant gave evidence as CW1 on 22ndMay 2018 and tendered 12 exhibits without objection and nos. 1-11 were marked respectively according to how they were listed in the List of Documents filed – see p. 10 of file. The RGCSSS was marked as Exhibit 11 and the Court stated that it was of 64 pages, inclusive of the cover page. It was also stated clearly that Exhibit 11 was written on the List of Document with black biro. The records of the proceedings are at pp. 6 & 7 of the Proceedings File.The 12thexhibit, which was erroneously marked as Exhibit 13,which was not amongstthe List of Documents filed, was equally admitted without objection. And the Court stated this fact clearly while admitting it. It is important to state that all these documents were shown to the defence counsel before they were offered for admission and the learned counsel stated clearly that he was not objecting to all of them. Though, the frontloaded copy of Exhibit 11 [the RGCSSS] was of 4 pages and not the composite copy but, at the point of tendering, as stated above, the witness and his counsel offered the composite copy, which is of 64 pages for admission, and this was admitted without opposition, marked accordingly and read out to the hearing of everybody in the open Court as being of 64 pages without any protest from any of the counsel to the parties, particularly the defence counsel.
It is clear from the above that, 12 exhibits were tendered by the claimant and admitted and not 11,wrongly stated by the learned counsel to the defendant. It is also very clear that the document tendered and admitted as Exhibit 11 was of 64 pages and not 4 pages as wrongly stated by the learned counsel to the defendant. It is therefore strange that the learned counsel to the defendant would turn up at the address stage to state that the RGCSSS tendered was of 4 pages and not 64 pages.In view of the foregoing, I hold that 12 exhibits were tendered and admitted without opposition and that Exhibit 11 was of 64 pages, and not of 4 pages wrongly stated by the learned counsel to the defendant. I move to the third and fourth preliminary issues, which deal with failure to issue and serve pre-action notice, and the counterclaim of the defendant.
I observe that whilethe parties joined issue on these in their pleadings and led evidence thereto in their respective written depositions adopted in Court, the counsel to the defence failed to put forward any address on these issuesin the Final Written Address of the defendant. The learned counsel to the claimant too, did not say anything about them in his final written address.The law is that an issue raised on which no address is advanced is deemed abandoned – see Umar v. Bayero University, Kano (1988) LPELR-3358 (SC) 14, D-G. In any case, I found that Exhibit 10 is an endorsed copy [at the back of the second page] showing the receipt of the pre-action notice as duly served on and received by one Ekezie Jacinta (Mrs.), a Chief Typist at 11:32 a.m. on 18/8/16.It is equally my view too,that the counterclaim is not even grantable in law as an item of special damages not strictly proved by particularizationof how the cost was incurred and paid; and in view of judicial policy in this nation that forbids the grant of cost of hiring counsel by one party against the other party – seeEgon & Ors. v. Eno & Anor. (2007) LPELR-3958 (CA) 26-27, E-A and Guinness Nigeria Plc v. Nwoke (2000) LPELR-6845 (CA) 23-24, B-B; and Nwanji v. Coastal Services Ltd (2004) LPELR-2106 (SC) 18, B-E. I therefore hold that the issues of failure to issue and serve pre-action notice and the counterclaim are abandoned.I also hold that, in addition, issuance and service of the pre-action notice are proved while the counterclaim and objection on pre-action noticeare dismissed. That marks the end of the preliminary issues identified above. I now move to the substantive case on the merit.
B. Decision on the Merit of the Case
In deciding the merit of the case, I adopt the two issues formulated by the learned counsel to the claimant, which I believe, are concise and hit the nail on the head. I shall take them seriatim.
Whether The Claimant Has Proved That His Employment With The Defendant Enjoyed Statutory Flavour?
Under this issue, two questions must be answered. They are: 1. Whether the conditions of service of the claimant became transmuted by reason of attainment of the senior staff status with the defendant? 2. Whether the RGCSSS is a subsidiary legislation and confers the employment of the claimant with statutory flavour?
On the first question, it is not in dispute that the claimant, who was employed as a junior staff subsequently attained the rank of senior staff by promotions, and that, it was on the senior staff rank that his appointment was terminated. What is rather in contest is whether, in spite of attaining the rank of senior staff, the claimant must continue to be governed by the terms contained in his original letter of appointment as junior staff or the conditions of service of senior staff [RGCSSS]. It is not in dispute too, that the RGCSSS embodies the conditions of service applicable to the senior staff of the defendant, but the argument turns on the contention that the claimant must be stuck to the conditions contained in his original letter of appointment as a junior staff. Let me not waste time on this. The conditions of service of the claimant became transmuted by his promotion immediately he crossed the Rubicon of junior staff to the enviable rank of senior staff.
In justification of the correctness of this view, I adopt my reasoning and decision on this same issue in the judgment of this Court inthe sister case: Suit No. NICN/OW/62/2016 – Osuh Sampson v. Abia State University [delivered 21st February 2019] supra, pp. 22-26 thereof. Relying on this authority, I hold that the conditions of service of the claimant became transmuted by his promotion to senior staff rank with the defendant and that, the applicable conditions of service governing the employment of the claimant at the point at which his appointment was terminated,are as contained in the RGCSSS.So, the first of the two questions is answered in favour of the claimant and against the defendant. Having done with the first of the two questions arising from issue 1, I move to the second question.
The second question deals with whether the RGCSSS is a subsidiary legislation and confers the employment of the claimant herein with statutory flavour.I waste no time in answering this question too, in favour of the claimant and against the defendant. It is undoubtedly correct proposition of law that the RGCSSS is a subsidiary legislation and conferred the employment of the claimant herein with statutory flavour. But I make haste to state that the reliance placed on the dictum of Lord Niki Tobi, JSC, of blessed memory, in Idoniboye-Obu supra by the learned counsel to the claimant, is misplaced. The ratio of Lord Tobi, JSC cited by the learned counsel to the claimant, obviously does not support the case of the claimant. It rather supports the arguments of the defence that the enacting clause of the RGCSSS was not properly worded. Nevertheless, and with profound respect to the learned and most erudite jurist, the current position of the law negates the said dictum of Lord Niki Tobi, JSC.
The current Supreme Court’s decision on the issue of when and how to determine that a statute is a subsidiary legislation conferring an appointment with statutory flavour, is as exposited by the Supreme Court inComptroller-General of Customs v. Gusau (2017) LPELR-42081 (SC), which case I cited and extensively discussed in relation to the dictum of Lord Tobi, JSC in Idoniboye-Obu’s casein issue and in relation to when a statute could be said to be a subsidiary legislation conferring an employment with statutory flavourin my previous judgment in Suit No. NICN/OW/62/2016 – Osuh Sampson v. Abia State University [delivered 21st February 2019] supra, pp. 26-42 thereof.I have not found any reason to depart from my reasoning and decision thereof. Being a superior court of record,this Court is bound by its own precedent. Adopting my reasoning and decision therein on the same issue, I entertain no hesitation in holding that the RGCSSS is a subsidiary legislation and that it conferred the employment of the claimant herein with statutory flavour, and I so hold. It follows that I also answered the second question under issue 1 in favour of the claimant and against the defendant.
Thus, the two questions raised for examination under issue 1 of the claimant are answered in favour of the claimant and against the defendant. It follows that issue 1, as formulated by the learned counsel to the claimant, is resolved in favour of the claimant and against the defendant. It now remains for me to examine issue 2.
Whether The Claimant Proved His Case So As To Be Entitled To The Judgment Of The Honourable Court?
The claimant tendered the letters of his appointment and termination and the RGCSSS, which contains the conditions of service applicable to him. The claimant pleaded and adduced evidence that he was not giving fair hearing in accordance with the stipulations of Chapter 2:14 of the RGCSSS. The defendant pleaded in paragraphs 9 and 10 of the Amended Statement of Defence that the claimant was invited to the meeting of the Special Committee on Security. These paragraph, as they are, do not answer the issue raised by the claimant that Chapter 2:14 of the RGCSSS was not complied with. The question thus raised by the claimant in his pleadings is that his employment was unlawfully determined contrary to Chapter 2:14 of the RGCSSS. That is the question that must be answered.
The defendant failed woefully to answer this very question. It cited section 5(1) & (2) of the Abia State University Law as the section that justified the actions she took against the claimant. I have examined this section and cannot find anything in it that gives the defendant the vires to depart from Chapter 2:14 of the RGCSSS. What happened is that the learned counsel to the defendant abandoned reliance on section 5 of the Abia State University Law and did not mention it in the whole gamut of the Final Written Address. In fact, my finding is that, the said section 5 of the Abia State University Law is actually in support of the case of the claimant that the RGCSSS was made pursuant to the Abia State University Law and thereby conferred statutory flavour on the employment of the claimant.
In any case, when the DW1 was cross-examined, while asserting that the claimant was invited in writing, DW1 however stated further that he was not the custodian of the document to prove that the claimant was invited in writing to the meeting of the Special Committee on Security and that, the Registrar of the defendant was with the documentary proof. The said Registrar was not called and neither was any piece of document tendered to prove this contrary assertion. Chapter 2:14(iii) of the RGCSSS mandates that the claimant must be invited to the Disciplinary Committee of the Council in writing and that the written invitation mustclearly state the allegations against him. This effectively placed a burden of proof on the defendant to show that it complied with these provisions. This, it failed to do, apart from the fact that the Special Committee on Security, wasnot the Disciplinary Committee of the Council to which the claimant must be summoned before his appointment could be terminated.
The law is that a bare assertion not supported by cogent evidence goes to no issue – see Obuladike v. Nganwuchu (2013) LPELR-21265 (CA) 59-60, F-B.In any event, this issue is exactly the same as raised in the sister case. So, the decision and reasoning apply mutatis mutandis to the present case. I therefore adopt my reasoning and decision inSuit No. NICN/OW/62/2016 – Osuh Sampson v. Abia State University [delivered 21st February 2019] supra, pp. 44-48 thereof. Relying on this authority and my reasoning therein, it is thus clear that the claimant proved his case to the satisfaction of the Court with cogent and convincing evidence, while the defendant failed woefully to dispel this. I therefore resolve issue 2 in favour of the claimant and against the defendant; and hold that the claimant is entitled to all the reliefs claimed.
I have examined all the reliefs and observed that they relate to reinstatement, which is the appropriate relief granted where a court comes to the conclusion that an employment tainted with statutory flavour is unlawfully determined. Having resolved the two issues formulated by the learned counsel to the claimant for the determination of this suit in favour of the claimant and against the defendant, the case of the claimant logically succeeds, and I so hold. I must now conclude this case by granting the appropriate reliefs.
Relying onComptroller 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 Facts, wrongly titled ‘Statement of Claim’. For the avoidance of doubt:
1. 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.
2. The said termination is hereby set aside for being illegal and unlawful.
3. The claimant is hereby reinstated to his said position as Senior Security Officer in the Security Department of the Abia State University.
4. 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 assessed at N100,000.00 [One Hundred Thousand Naira only] is awarded in favour of the claimant and against the defendant. The defendant has 30 days grace to comply with the judgment of the Court failing which the judgment sums begin to attract 10% interest rates.
Judgment is entered accordingly.
HON. JUSTICE O.O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA