IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP JUSTICE I.S GALADIMA
Date: 23rd July, 2020.
SUIT NO: NICN/OW/49/2019
PROF. McCHESTER ONYEMACHI ODOH …………………. CLAIMANT/RESPONDENT
· FEDERAL UNIVERSITY OF AGRICULTURE UMUDIKE
(aka MICHEAL OKPARA UNIVERSITY OF AGRICULTURE, UMUDIKE).
· THE GOVERNING COUNCIL, FEDERAL UNIVERSITY OF AGRICULTURE,
UMUDIKE (aka MICHAEL OKPARA UNIVERSITY OF AGRICULTURE, UMUDIKE)
· Okey Kanu for the Claimant.
· Emma Ukeagbu and A.D. Asiegbu for the Defendants.
1. This suit was commenced on the 14/08/2019 by a Complaint accompanied with statements of facts and other originating processes wherein the Claimant claims against these Defendants jointly and severally, as follows;
a. A declaration that the confirmation of the appointment of the Claimant as a Professor of Computer Science by the 2nd Defendant at its 64th Meeting via Letter Ref. No MOUAU/VC/222 of 14th October 2015, with effect from the same date, remains valid and subsisting, the Claimant having satisfied all the criteria of the Defendants as published in the Guardian Newspaper of 20th January 2015 for the appointment.
b. A declaration that the purported “reversion” of the appointment of the Claimant from the position of a “Professor” to an “Associate Professor” by the 2nd Defendant via its letter Ref. No. MOUAU/REG/PASM/SS/1420 VOL.1 of the 20th May 2019 is invalid, null and void and of no effect whatsoever.
c. A Declaration that the Claimant was denied his right to fair hearing by the 2nd Defendant, having not been given any opportunity of knowing the allegation/petition against him, and afforded the opportunity to defend himself, prior to the decision of the 2nd Defendant purportedly “reverting” his appointment to that of an Associate professor”.
d. AN ORDER setting aside or quashing the purported approval of the 2nd Defendant in its Letter Ref. NO. MOUAU/REG/PASM/SS/1420/VOL.1 of the 20th May,2019 “reverting” the professional appointment of the Claimant.
e. AN ORDER directing the 2nd Defendant to forthwith reinstate the Claimant to the position of a Professor of Computer Science of the University, and to pay his salaries, allowances and other entitlements from 14th October 2015 till date.
f. AN ORDER directing the Defendants to jointly and severally pay to the Claimant the sum of N5,000,000 (Five Million Naira) only as general damages for the trauma, anguish and embarrassment they subjected the Claimant to by their action of unjustifiably “reverting” the appointment of the Claimant from the position of a Professor to that of an “Associate Professor”.
g. An ORDER restraining the Defendants, their servants, agents, officers, staff interfere etc. from taking any other step to invalidate or interfere with the appointment of the Claimant as a Professor of Computer Science of the University.
2. In objection to the suit, the Defendants/Applicants filed a Notice of Preliminary Objection dated 18/02/2020 challenging the Claimant’s substantive suit on the grounds of it being premature, incompetent and not disclosing any reasonable cause of action.
3. In support of the application is a 7 paragraphed Affidavit duly deposed to, and a written address.
4. Against this, the Claimant/Respondent caused a Counter Affidavit of 21 paragraphs to be filed on 06/03/2020. Same is also accompanied by 2 Exhibits marked as Exhibits ‘A’ and ‘B’ and a written address.
5. Both Counsel duly adopted their respective arguments on 10/07/2020 and thus the suit was adjourned to today, for this here ruling.
6. The applicants raised a sole issue in their preliminary objection thus - “Whether this suit is not premature, incompetent and discloses no reasonable cause of action?”
7. On the issue raised above, it was first argued that the 1st Defendant is the creation of the Federal Universities of Agriculture Act, Cap. F 22 Laws of the Federation of Nigeria 2004. By the provisions of Section 21 (8) of the said Act, no staff of the 1st Defendant shall resort to a law Court without proof of having exhausted the integral avenues for settling disputes or grievances or for seeking redress in the 1st Defendant.
8. It was also submitted that the use of “shall” makes this provision mandatory and means that the Claimant has to adduce proof that he exhausted the integral avenues for settling disputes or grievances or seeking redress in the 1st Defendant institution before filing this suit.
9. Learned objectors’ Counsel argued however that from the processes he filed, the Claimant did not show any proof that he wrote to or approached the Council of the 1st Defendant or the Chancellor, the Pro-Chancellor or Visitor who are all principal avenues through which an out of Court settlement might have been achieved.
10. Consequently, the issues sought to be resolved in this suit are still within the domestic forum of the 1st Defendant and are therefore non justifiable before this Court for the time being. Accordingly, it is now settled that until remedies available in the domestic forum are exhausted, any resort to Court would be premature – See VICTOR V. F.U.T.A 2015 (4 NWLR) (PT 1448) 1 at page 51 para H. In UNILLORIN V. OLUWADARE (2006) 14 NWLR (PT 1000) 751 at 781-782, the supreme Court accordingly made it very clear that an aggrieved party under circumstances as presented in this suit, should first exhaust all the internal machineries for seeking redress before resorting to Court for redress. Where he rushes to Court without first exhausting all the avenues for redress available to him within the domestic forum, he would be held to have jumped the gun and the matter would be declared bad for being incompetent, suggested the learned Counsel.
11. It was further submitted that this suit is premature since the Claimant did not exhaust the integral avenues for settling disputes or resolving grievances or for seeking redress with the 1st Defendant, which is a condition precedent.
12. Learned Counsel to the Defendants/Applicants cited and relied on AKINTEMI V. ONWUMECHILI (1985) ISC 132 at 171 para 12-19, where the Supreme Court accordingly held that issues within the domestic forum or domain of the University as enshrined in the statute establishing it are not justiciable in a Court of law, but until the remedies available in the domestic forum are exhausted, any resort to Court action would be premature. He thus urged this Court to so hold.
13. He reemphasized that the statutory provisions were not complied with before filing this suit. As such, this suit is incompetent. An incompetent suit discloses no cause of action and a suit which discloses no cause of action does not invest the Court with jurisdiction to determine same but constitutes an abuse of the process of the Court. It is the law that for a Court to have jurisdiction to entertain a matter, the matter must be initiated by due process of law and any condition precedent to the Court’s jurisdiction must have been fulfilled – See UNILORIN V. OLUWADARE (2006) 14 NWLR (PT 1000) 751 at 767 para E.
14. It was argued that the Claimant having run afoul of the provisions of the statute, this suit becomes premature and incompetent. The suit has failed to invest the Court with the requisite jurisdiction to entertain same. He urges this Court to dismiss or strike out this case.
15. In response to the Defendants’/Applicants’ Preliminary Objection, the Claimant/Respondent raised the following issues in their written brief of argument thus;
a. Whether the provisions of Section 21 (8) of the Federal Universities of Agriculture Act, CAP. F 22, laws of the Federation of Nigeria, 2004 (hereinafter called “the Act”) applies to the case of the Claimant/Respondent.
b. If the answer to issue (a) above is in the affirmative, whether there are established integral avenues and procedures in the first Defendants/Applicants to handle grievances such as that of the Claimant/Respondent; and
c. If the answers to Issues (a) and (b) above are in the affirmative, whether they can override the jurisdiction of this Court to enforce the fundamental rights of the Claimant/Respondent to fair hearing pursuant to the provision of Section 21 (10) of the Act.
16. On issue 1, Counsel to the Claimant/Respondent submitted that the answer to that question is in the negative, because the arguments of the Defendants/Applicants in this Motion hinges on the alleged noncompliance with Section 21 (8) of the Act, as the Claimant/Respondent allegedly did not exhaust the integral avenues for settling disputes or grievances or for seeking redress in the 1st Defendant/Applicant. He said that Section 21(8 of the Act provides as follows:
17. “(8) No staff or student shall resort to a law court without proof of having exhausted the internal avenues for settling dispute or grievances or for seeking redress”.
18. He argued that the Defendants/Applicants misconstrued the provisions of the Act, and in particular the said Section 21 (8) as it relates to the case of the Claimant/Respondent. It is trite that the provisions of an enactment must be read as a whole in order to deduce the intention of the Legislature. A community reading of all the sub-sections in Section 21 of the Act shows that the Section centers on discipline of students of the 1st Defendant/Applicant. The marginal note of the Section bears this out which stated boldly as: “Discipline of Students”. It is also trite that where there is ambiguity in the body of an enactment, the heading or marginal note is relied on to clear the ambiguity. See OYO STATE BOARD OF INTERNAL REVENUE VS. UNIVERSITY OF IBADAN (2013) LPELR-22151 (CA).
19. Therefore, an ejusdem generis interpretation of the entire Section 21 of the Act shows that the provisions are intended for the students of the 1st Defendant/Applicant. It was not targeted at the staff of the 1st Defendant/Applicant notwithstanding the isolated mention of “staff” in sub-section (8) thereof. For the staff of the 1st Defendants/Applicant, their issues bordering on discipline are amply provided for under Section 18 of the Act. Therefore, Section 21 of the Act is inapplicable to the staff of the 1st Defendant/Applicant and indeed the case of the Claimant/Respondent.
20. Counsel further submitted that assuming without conceding that Section 21 (8) FUA Act also covers the staff of the 1st Defendant/Applicant, again, it is obvious that the entire provisions of Section 21 are on discipline. The marginal note is again instructive. Thus, sub-section (8) forbids any person (staff or student) aggrieved on issues of discipline to resort to the law court without first exploring all the internal avenues in the 1st Defendant/Applicant for seeking redress. The sub-section has nothing whatsoever to do with the case of the Claimant/Respondent as it has nothing to do with discipline. He was not alleged to have committed any wrongdoing leading to any disciplinary measures against him for which the procedure under Section 18 of the Act would have been activated. Rather, according to the 2nd Defendant/Applicant in Exhibit “B”, it was “…in response to appeals made by some staff on proper placement…”. So, the proper interpretation to be given to Section 21 (8) is that no person affected by issues of discipline can resort to the law Court without first exploring the internal remedies for redress in the 1st Defendant/Applicant. In effect, Section 21 (8) of the Act is irrelevant and inapplicable to the case of the Claimant/Respondent.
21. With respect to issue 2, learned Counsel to the Claimant/Respondent submitted further that if the answer to issue (a) above is in the affirmative, whether there are established integral avenues and procedures in the 1st Defendant/Applicant to handle grievances such as that of the Claimant/Respondent? The answer is accordingly in the negative.
22. Assuming without conceding that Section 21 (8) of the FUA Act covers the case of the Claimant/Respondent, the necessary question to ask is: what are the established avenues and procedures provided in the 1st Defendants/Applicants to handle or redress the peculiar grievances of the Claimant/Respondent? The answer is none. And the Defendants/Applicants did not establish any either.
23. It was argued that the article “the” in that said sub-section (8) suggests something that is already existing. Also, the word “integral” means something that is part of the operations of the Defendants/Applicants. According to the Defendants/Applicants, there is no proof that the Claimant/Respondent approached the Council, the Chancellor, the Pro-Chancellor or the Visitor of the 1st Defendant/Applicant for the Redress before resorting to this suit.
24. It was pointed out that it was the 2nd Defendant/Applicant that issued Exhibit “A” and almost 4 years later also issued the controversial “Exhibit “B”. However, the Act did not give the Council, the Chancellor or the Pro-Chancellor any power to review the decisions of the 2nd Defendant/Applicant, or to exercise any appellate jurisdiction over it. This would have been absurd because the 2nd Defendant/Applicant, as stated earlier, is the highest administrative organ of the 1st Defendant/Applicant. Also, the Chancellor, the Vice Chancellor, the Deputy Vice Chancellor and the other persons and offices mentioned in Section 7 of the Act are members of the 2nd Defendant/Applicant and ipso facto took part or are deemed to have taken part in the controversial decision in Exhibit “B” leading to this suit. Regarding the Visitor and the Vice Chancellor, they do not and cannot undertake or carry out any administrative duty or functions sequel to their functions under Section 15 and 5 respectively of the Act, including serving as appellate entities to review decisions of the 2nd Defendant/Applicant. In particular and in accentuation, Section 29 (1) of the Act makes it clear that the visitor is not an office. The only function given to the Visitor pursuant to Section 15 (2) of the Act is that of Visitation of the first Defendant/Applicant which he undertakes in 5 years interval. Thus, the marginal note to Section 15 of the Act is totally irrelevant to the provisions. For the Chancellor, he is only to confirm proposal for the conferment of honorary doctorate degree on any person, and any other function as may be conferred on him by the Act or Statue made by the Defendant/Applicants. Presently, there is no such statue.
25. He further stated the Section 12 of the Act gives the Defendants/Applicants the power to make statutes to regulate its operations. Unfortunately, till date, no Statue has been made, especially such that provides integral avenue for redress of grievances. The existing Statute in the Second Schedule to the Act, deemed to have been made by the Defendants/ Applicants, does not have such provisions.
26. Accordingly therefore, whenever a provision is made in a statue for carrying out of any action, until the necessary enabling environment for its execution is provided or put in place, such a provision remains dormant, inchoate, unimplementable and unenforceable. In the instant case, the Claimant/Respondent is not expected to run from the office of the 1st Defendant/Applicant to another in search of where to lodge his appeal or seek for a review. He is also not expected to write his appeal or request for review and throw it into the premises of the 1st Defendant/Applicant. It must be clearly certain where such appeals can be lodged in the 1st Defendant/Applicant and the procedure to be followed. Where such avenue is absent, the provision of Section 21 (8) of the Act remains inchoate and unenforceable. Therefore, a strict enforcement of Section 21(8) of the Act will tantamount to denying the Claimant/Respondent his right of access to Court and fair hearing. He also urges this Court to so hold.
27. Regarding his issue C, Counsel to the Claimant/Respondent argued emphatically that assuming the answers to issues (a) and (b) above are in the affirmative, the jurisdiction of this Court cannot be overridden to prevent in from enforcing the fundamental rights of the Claimant/Respondent as clearly expressed in Section 21 (10) of the Act. That Section provides as follows:
28. “(10) Nothing in this subsection shall affect any power of a Court of competent jurisdiction from enforcing the fundamental rights of any aggrieved citizen as enshrined in the Constitution of the Federal Republic of Nigerian 1999”.
29. He further submitted that this provision is to circumscribe the effect of the operation of any other sub-section of Section 21, and indeed the entire Act, in matters relating to the enforcement of the fundamental rights of any aggrieved citizen of Nigeria. In other words, the provisions of the Constitution relating to the enforcement of fundamental rights takes precedent over the operation of Section 21 and the entire Act.
30. He further contended that Relief 3 of the Claimant/Respondent’s claim is as follows: “A DECLARATION that the Claimant was denied his right to fair hearing by the 2nd Defendant, having not been given any opportunity of knowing the allegation/petition against him, and afforded the opportunity to defend himself, prior to the decision of the 2nd Defendant purportedly “reverting” his appointment to that of an “Associate Professor”.
31. Counsel made reference to Exhibit “B” of the Counter Affidavit which states that the reason for the purported reversion of the appointment of the Claimant/Respondent from a Professor to an Associate professor was “…in response to appeals made by some staff on proper placement….”. In Paragraphs 15, 16, 17 and 18 of his Counter Affidavit, the Claimant/Respondent averred that the Defendants/Applicants did not inform him of any such appeals/allegation against him on any improper placement. There is no evidence whatsoever to show that the Claimant/Respondent was informed of the petitions/allegation against him on proper placement and given the opportunity to defend himself. The onus is accordingly on the Defendants/Applicants to establish the contrary. This they can only do at the hearing of the substantive suit via credible evidence, but not at this preliminary stage. Accordingly, in MR. ALFRED UGOKWE VS. CHEMCUS INDUSTRIES & SERVICES LIMITED & ORS (2018) LPELR-45562(CA) the Court of Appeal noted that Courts have been admonished to bear in mind that in determining preliminary objection, they must be circumspect not to be invited into resolving substantive issues. Counsel also relied on AKAPO VS. HAKEEM HABEEB (1992) 7 SCNJ 199 for added measures.
32. Counsel urged that the best this Court can do, is to hear the Preliminary Objection but deliver the Ruling along with the Judgement in the substantive suit. More so, the Defendants/Applicants in their Statement of Defense and even in their affidavit in support of their Motion on Notice did not join issues with the Claimant/Respondent on the denial of his right to fair hearing. It is trite that the issue of fair hearing is fundamental to any adjudication and the absence of it is fatal. Thus, Section 21 (10) enjoins this Court to enforce the Claimant/Respondent’s right to fair hearing. On this issue alone, the current Objection of the Defendants/Applicants must fail. He urged this Court to dismiss the application in its entirety.
33. Upon a careful perusal and consideration of this application, the affidavit evidence and submissions of Counsel to the parties in their respective written addresses for and against the application, I believe one issue arises for determination which is whether this suit is premature, incompetent and not disclosing any reasonable cause of action and thereby liable to be struck out?
34. The Defendants/Applicants filed this Preliminary Objection urging this Court to strike out this suit on the grounds of it been premature, incompetent and not disclosing any reasonable cause of action. By relying on the provision of Section 21(8) of the Federal Universities of Agriculture Act Cap F 22 LFN 2004 which provides; “No staff or student shall resort to a law Court without proof of having exhausted the integral avenues for settling disputes or grievances or for seeking redress”.
35. The Claimant/Respondent Counsel cited Section 21 (10) of the same Act which provides thus: “Nothing in this subsection shall affect any power of a Court of competent jurisdiction to enforce the fundamental right of any aggrieved citizen as enshrined in the Constitution of the Federal Republic of Nigerian 1999”.
36. Without doubt, the corner stone of every suit is the jurisdiction to entertain the same – see MADUKOLO V. NKEMDILI (1962) 2 SCNLR 341 @ 348. This suit bothers on employment which falls within the confines of the jurisdiction of this Court as conferred on it by Section 254 (C) of the Constitution of the Federal Republic of Nigeria 1999 as seen in Order 1 Rule 3 of the Rules of this Court.
37. In view of the reasoning above, I come to a brief but humble conclusion that this Court has the absolute jurisdiction to hear and determine the subject matter of the suit now being contested.
38. Should this Court now view the institution of this instant suit as premature and therefore incompetent to be determined by this Court at this stage?
39. The Defendants’/Applicants’ arguments can be seen as ill motivated because they never set up the pace or actually provided an enabling environment for resolving the grievances made by the Claimant/Respondent. Adopting the submissions of the Claimant/Respondent in his issue 2 raised above therefore, the Defendants/Applicants have not been able to provide any recognizable body or organ that is supposed to be in charge of handling the Claimant’s grievance or such similar matters. This fact alone, paralyzes the potency of the PO not to mention the fact that there is the possibility that the Claimant was not notified by the Defendant of his reversion to a lower rank before the action was undertaken. There seems to have been a finality in the action to revert him to a lower position when it was communicated by letter to the Claimant. It will have been futile to even apply to those principal agents of the Defendant institution as they were the ones responsible for making the decision which this Claimant now seeks redress against.
40. There is no doubt that Section 21 (8) of the Federal Universities of Agriculture Act, CAP. F 22, Laws of the Federation of Nigeria, 2004 provides for resort to internal mechanisms before filing a suit but the important thing to consider is the actual intention of the statute and whether its provisions apply to the Claimant/Respondent in the circumstances of this case.
41. At the risk of sounding repetitive, I agree with the submissions of the learned Counsel to the Claimant/Respondent that this section as seen from the marginal note applies to the discipline of students in the 1st Defendant institution although section 21 (8) mentioned staff, it must be agreed that this provision, if given its literal interpretation as contained in the statute, the rule to apply will be that general words in a statute that follow a specific word in a list must be construed as referring only to the types of things identified by the specific words.
42. Therefore, since the Marginal note of the statute provides for discipline of students, it is obviously not applicable to the instant suit applying the rule stated above.
43. Assuming I even accepted the arguments by the Applicants that Section 21 (8) of the Act applies against this Claimant, another tight rope that need to be walked upon is that the instant suit does not bother on the discipline of the Claimant but his reversion or demotion from Professor to an Associate Professor.
44. Given these considerations and findings, Section 21 (8) of the FUA Act cannot just apply against the Claimant/Respondent because from the contents of Exhibit B, the same was issued in respect to response to appeals made from some grieving staff for proper placement of some of their colleagues. This further shows how inapplicable Section 21 (8) of the Act is to the instant suit. There is no similarity between appeals and discipline and there is no way a statute that provides for discipline can be used or applied to determine the instant suit which bothers on ‘proper placement’ or a purely administrative measure as alleged by the Defendants.
45. I therefore adopt the other submissions made by learned Counsel for the Claimant/Respondent to hold that this application lacks merit and the same must be denied.
46. I also rely on the case of PROF. ELE ASOR V. MOUA UMUDIKE (unreported) suit no: NICN/OW/29/2019 delivered on 23/7/2020 by this Court in refusing this application.
47. Ultimately, I find that the application to be baseless and the same are accordingly dismissed without cost. I hold that this suit is not premature, incompetent and has a reasonable cause of action, thereby hearing must continue forthwith.
Delivered in Owerri this Thursday, the 23rd day of July 2020.
HON. JUSTICE I.S. GALADIMA