Edwin Adobe Ameh -VS- National Open University of Nigeria- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: APRIL 8, 2022 SUIT NO. NICN/ABJ/259/2019

BETWEEN

EDWIN ADOBE AMEH CLAIMANT

AND

NATIONAL OPEN UNIVERSITY OF NIGERIA DEFENDANT

REPRESENTATION:

Michael Olajide for the Claimant.

Oladipo Tolani for the Defendant, with I.A Ibitoye.

JUDGMENT

Introduction and claims

[1] The Claimant filed this complaint together with the accompanying processes against the Defendant on 4^th September 2019. He is seeking the following reliefs against the Defendant:

(1) A declaration that the purported termination of the Claimant’s appointment by the defendant via a letter dated 18^th June 2019 and served on the Claimant on the 3^rd day of July 2019, is unlawful, illegal, null and void.

(2) A declaration that the said purported termination of the Claimant’s appointment is contrary to the Statutes, as well as the Rules and procedure regulating the Claimant’s employment.

(3) An Order reinstating the Claimant to the Defendant’s employment as a principal Hardware Engineer on CONTISS 11 STEP 2 in the employment of the Defendant, with all his accrued salary and or total emolument from 30^th of July, 2018 till the Claimant is reinstated.

ALTERNATIVELY

(3a) Damages for wrongful termination of employment in the sum of N30, 833,605.00k (Thirty Million, Eight hundred and thirty-three thousand, six hundred and five naira only).

PARTICULARS

(I) The Claimant’s total monthly emolument as a Principal Hardware Engineer/Officer on CONTISS 11 STEP 2 is N173, 222.50k (one Hundred and Seventy-three thousand, Two Hundred and Twenty –Two Naira Fifty kobo).

(II) Claimant’s remaining years of service is fifteen (15) years and there are twelve months in a year (12months).

(III) Salary for twelve (12) months at rate of N173, 222.50k (one Hundred and Seventy-three thousand, Two Hundred and Twenty –Two Naira Fifty kobo) monthly is N2, 078,670.00k (Two Million, Seventy Eight Thousand, Six Hundred and Seventy Naira Only).

(3b) An Order directing the Defendant to pay the Claimant forthwith all his total pension and gratuity that he would have been entitled to after his normal retirement age.

(3c) Salary arrears from 30^th of July 2018 till the unlawful termination on the 18^th of June, 2019 which is eleven (11) months with eighteen (18) good days, which is N1,070,999.90k (One Million Seventy Thousand Nine Hundred and Ninety Nine Naira Ninety Kobo).

(4) The cost of this suit.

The Defendant filed an amended statement of defence on 26^th February 2020 together with the accompanying processes. The Claimant filed a consequential reply to the amended statement of defence on 8^th June 2020.

Case of the claimant

[2] The case of the claimant on the pleadings is that he was a staff of the defendant where he was a Principal Hardware Engineer on CONTISS 11 STEP 1, before the defendant terminated his appointment. The claimant stated that he was offered employment into the service of the defendant on 22^nd October 2007, as a Principal Hardware Engineer 11, in the Computing & Network Service Department on CONTISS 7 STEP 4. The claimant further stated that he accepted the offer of appointment and worked diligently for a period of two years after which his appointment was confirmed in October 2009 to a permanent and pensionable appointment. The claimant averred that the rules and regulations in the conditions of service of the senior staff of the defendant enacted in 2016 regulate his employment with the defendant. The claimant stated that since his appointment he has diligently discharged his duties without any query from the defendant and this has earned him promotions and commendation at various times.

[3] The claimant stated that he was promoted on 11^th March 2011, to the rank of Hardware Engineer 1 on CONTISS 8 STEP 2, was to take effect from 1^st January 2011 and also received a commendation. He was also promoted to Senior Hardware Engineer on CONTISS 9 STEP 1 with effect from 1st April, 2014, and Principal Hardware Engineer, on CONTISS 11 STEP 1 with effect from 1^st January 2017. The claimant averred that as a Hardware Engineer, his scope of duties does not require him to use the portal as he specializes on the maintenance of the Computer Hardware and its peripheral. The claimant stated that sometime in 2017, the defendant carved out a new directorate from the ICT department named Management Information System (M.I.S.), to manage the student’s portal, which was before this time being done by a private company known as “Cyber Space” The claimant stated that he and his colleagues were given default password to enable them access the portal at the directorate.

[4] The claimant further avers that since the carving out of a new directorate know as Management Information System (M.I.S.), to supervise the students’ portal the I.C.T. department has been having challenges such as negative crediting of the account on the portal, making it difficult for student’s to register after the payment has being made and that this is known to the defendant. The claimant stated that he was shocked when on the 21^st of July 2018, he received a letter suspension from the defendant without being issued a query, and that the suspension notice accused him of an alleged offence of illegal activities on the portal, which offence he did not commit. The claimant stated that he later learnt that the unlawful suspension was brought about by a report made to the Vice Chancellor by the Director in charge of the Management Information System (M.I.S.) that indicted him. The claimant averred that prior to 31^st July 2018, he has never been queried and has worked diligently without a single complaint from any of the Directors he had worked with, before the unlawful termination of his appointment by the defendant.

[5] The claimant averred that after he was suspended, the defendant summoned him to the investigating committee/panel where he was told of the alleged offence of “attempting to reset a password” belonging to an (MIS) staff which he knew nothing about. The claimant stated that he presented his defence to the committee that eventually exonerated him of the alleged offence perpetrated outside the country on the University portal. The claimant stated that the investigation committee/panel set up in August 2018, having concluded their investigation recommended to the Vice Chancellor that he be reinstated and paid all his emolument from the date of his suspension; but the report was ignored by the Vice Chancellor. The claimant stated that the defendant disregarded the report of the initial investigating committee and set up another panel/committee to carry out another investigation. The claimant averred that the second investigation committee/panel sat twice during which he was interrogated and he defended himself.

[6] The claimant further averred that the second committee affirmed the report of the first investigation committee and it was disbanded by the Vice Chancellor. After the disbanding the 2^nd investigating panel/committee, the claimant stated that he was asked to appear before Joint Council and Senate Disciplinary Committee where he was also interrogated. The claimant stated that having been on suspension for more than eleven (11) months, he was called on his mobile phone by a post-office attendant who informed him that he had a letter from the defendant, which letter happened to be the letter of termination of his employment. The claimant further stated that the service of the letter of termination of appointment is contrary to the conditions of service of senior staff; and that he wrote a letter of appeal to the defendant after the termination of his employment. The claimant averred that all the acts of the defendant were done in contravention of the senior staff rules, regulations and conditions of service; and that the defendant has refused to pay his emoluments. The claimant averred that the unlawful termination of his appointment has put him in great hardship and subjected him and his household to an unimaginable suffering.

[7] Replying to the defence, the claimant averred that the University law and the conditions of service provides for the issuance of query to staff for misconduct. The claimant stated that the report of Joint Council/Senate Committee recommended that he be demoted by a grade level; forfeit his half salary from the date of suspension, be reinstated and issued with a stern warning letter, which the defendant refused. The claimant stated that the decision of Council from its 55^th meeting held on 18^th June 2019, and contained in an internal memo dated 19^th June, 2019 was baseless. That before the Joint Council/Senate Committee takes any decision, recourse has to be made to the report of the investigating committee that must have been set up to unravel the misconduct of any staff. The claimant stated that his suspension lasted almost a year and he was never at any time served with a letter extending the suspension.

[8] The claimant testified in support of his case. He adopted his statements on oath; and they were in the exact terms of the pleadings. Under cross-examination the claimant confirmed that he was notified of the allegations against him, and was paid one months salary in lieu of notice. The claimant stated that he was aware of the provisions regarding discipline in the University Law for senior staff. He told the Court that he was aware the Vice Chancellor cannot unilaterally take a decision except the Joint Committee of the Senate and Council sit. The claimant admitted that he appeared before the Joint Council/Senate Disciplinary Committee, answered questions and defended himself; and that he also appeared before the two Committees earlier set up. He said he was aware of the report of the Joint Committee of the Senate and Council that recommended his demotion.

Case of the defendant

[9] The defendant’s case on the pleadings is that the claimant was a Principal Hardware Engineer on CONTISS 11 STEP 1 whose appointment was lawfully terminated in accordance with the enabling law of the Defendant – National Open University Act CAP N63 LFN 2004. The defendant stated that its establishment law regulates the claimant’s employment. The defendant stated that on 22^nd January 2010 the claimant’s employment was confirmed and further stated that the letter of commendation issued to the claimant was as a result of his participation in the 2^nd convocation ceremony held 18^th and 19^th January 2013 and not for his conduct as a Hard ware Engineer or for his dedication and general conduct to duties. The defendant averred that the claimant’s scope of duties comprises of all computer related activities, online and offline which is in accordance with his terms of employment and is reflected in its internal memo dated 1^st May, 2011 posting the claimant as an ICT support staff.

[10] The defendant averred that prior to the creation of the Directorate of Management Information System (MIS), a private company was managing the Defendant’s ICT Department; and that the new Directorate was headed by Dr. Muhtat H. Alhassan. The defendant stated that the portal of the ICT under the supervision of the Management Information System has not at any point in time experienced any challenges and there has not been a single incident of negative crediting; and that students’ registration after payment has been running smoothly. The defendant stated that the letter of suspension issued to the claimant was as a result of the illegal attempt to reset the password of some members of staff, and is in accordance with the University. The Defendant stated that the claimant was given notice of the allegations against him and that the attempt to reset the password is a gross violation of the terms of the claimant’s employment.

[11] The defendant stated that the claimant appeared before Joint Council/Senate Disciplinary Committee, the only committee recognized by the enabling law. The defendant averred that the claimant was given a notice of the allegation against him, afforded the opportunity of appearing before the Committee and was heard by members of the Committee. The defendant further averred that the Joint Council/Senate Disciplinary Committee found that the allegation of illegal attempt to reset password of some members of staff was established against the claimant. Consequently the Governing Council at the 55^th meeting held on 18^th June, 2019 terminated the claimant’s employment with effect from 18^th June, 2019. The defendant stated that nothing in its establishing law prevents or restricts it from setting up committees to investigate the conduct of any of its employees, and the report of such committee is subject to investigation by the Joint Council/Senate Disciplinary Committee which may reject, adopt or modify such report and take a decision on its own.

[12] The defendant averred that the claimant was suspended from his office on 30^th July 2018 for three (3) months and at the expiration of the three (3) months period his suspension was further extended for another three (3) months by letter dated 11^th March 2019 in accordance with its enabling law. The defendant stated that the termination letter dated 18^th June, 2019 was issued after the Governing Council met and considered the report of the Joint Council and Senate Disciplinary Committee; and the decision to terminate the claimant’s employment was made. The defendant averred that after the claimant was served the termination letter, he wrote an appeal and it replied on 25^th July 2019. This prompted the claimant to write another appeal dated 31^st July 2019 that was under consideration when he filed this action. The defendant stated that following the termination of the claimant’s employment he was paid all his entitlements on 18^th July 2019. That it is not privy to the alleged state of mental health, financial incapacity or personal issues suffered by the claimant.

[13] The defendant’s witness is Oluwafunso Elizabeth Oyedokun (DW) Principal Assistant Registrar. She adopted her statement on oath. It was in terms of the pleadings. In cross-examination, DW told the court she was not aware if a query was issued to the claimant, and that a letter of suspension in respect of erring staff lasts for three months. DW explained that an erring staff is served with a letter of extension of the suspension, and that the claimant’s suspension was extended. DW told the court that the report to the Vice Chancellor was that the claimant attempted to reset the password; and that the Vice Chancellor has powers to suspend a staff before reporting the matter to Council. DW informed the court that the University Management can constitute a fact-finding committee, and stated that the claimant appeared before the Management fact-finding committee before he appeared before the Joint Council and Senate Disciplinary Committee. DW told the court the claimant appeared before the committee headed by Prof Joseph Omada. She told the court that she was not a member of any committee that investigated the case; and that in exhibits C7 and D4 the claimant was not recommended for termination.

Final address

[14] The defendant’s final address is dated 8^th November 2021 and is filed on 15^th November 2021. The claimant’s final address is filed on 3^rd December 2021. The defendant’s reply on points of law is dated 26^th December 2021 and is filed on 20^th December 2021.

Learned counsel to the defendant submitted the following issues for determination:

1. Whether the defendant’s Vice Chancellor has the requisite vires to single handedly investigate or remove an Academic, Administrative or Technical Staff from office

2. Whether or not the claimant was notified of the allegations against him and given the opportunity to defend himself in line with the principles of fair hearing and natural justice, before his employment was terminated by the defendant.

3. Whether or not the claimant having been paid his one month salary in lieu of notice as provided for in the claimant’s terms of employment, his action is maintainable.

[15] In arguing issues I & 2, learned counsel submitted that the powers of the Vice Chancellor in respect of disciplinary matters is defined within the scope of Section 14 (2) of the National Open University Act and that this is replicated in the Rules and Regulations Governing the Conditions of Service of senior staff. He further submitted that where a statute has provided the procedure by which a thing is to be done only that procedure is permissible; and any other procedure other than that prescribed is a nullity. He cited Agip (Nig) Ltd v Chief C. Ezendu (2010) 1 SC (Pt 11) 98, Joseph Mangtup Din v A-G Federation (1988) 9 SC 19. Learned counsel submitted that the defendant’s enabling Act recognizes the Joint Committee of the Council and Senate as the only body to investigate issues of infractions.

[16] Learned counsel submitted that the employment relationship between the claimant and defendant is one with statutory flavor, governed and protected by statute that has set out the procedure for his disengagement. He submitted that the employer must comply strictly with its enabling statute in determining the relationship citing Bamboye v University of Ilorin (1999) 10 NWLR (pt. 622) 290; Comptroller General of Customs & Ors v Gusau (2017) 4 SC (Pt.11) 128. He referred to section 14 (1), (a), (b), and (c) of the defendant’s enabling law on procedure for removal and submitted that on the evidence adduced, the defendant complied with the its enabling law, fair hearing, and the procedure for discipline and removal of an employee. On issue 3, learned counsel stated that the claimant’s appointment letter (exhibit C1) provides that termination may by either party giving 3 months notice or payment of one months salary in lieu of notice. That the claimant admitted that he was paid salary in lieu of notice and the effect is that he has indeed accepted the determination of the employment relationship even if wrongful citing Morohunofola v KSCT (1990) 4 NWLR (Pt.145) 506, Ajolore v KSTC [1986] 2 SC 374, Ante v University of Calabar (2001) 3 NWLR (Pt 700) 239. He then urged the Court to dismiss the claims of the claimant.

[17] Learned Counsel to the claimant raised two issues for determination as follows:

1. Whether based on the evidence before the Court, which resulted in the termination of the Claimant’s employment, were done in total compliance with the extant law and the condition of service of the Defendant.

2. Whether the Claimant has adduced sufficient and credible evidence to prove his case, as required by the law to be entitled to the reliefs sought in this suit.

[18] On issue 1, learned counsel to the claimant submitted that the various acts of the defendant culminating in the termination of the claimant’s employment were done without strict compliance with the law establishing the defendant and the condition of service governing the Claimant’s employment. He submitted that the suspension of the claimant ought to last for a maximum period of 3 months, but that it was protracted as it continued for months without the requisite letter of extension as provided for by section 14 (3) and (4) of the National Open University Act and section 3.3.1 (E) and (f) of the conditions of service (Exhibit C12); and was therefore unlawful. He contended that the only document the court is to consider in order to determine the employees entitlement is the contract of service citing Gbedu v Itie (2020) 3 NWLR (Pt 1710) 104 at 126.

[19] Learned Counsel submitted that an employer whose employee’s appointment has statutory flavour has no right to terminate the appointment at will as the employee does not hold the appointment at the will and pleasure of the employer citing Alhassan v A.B.U (2011) 11 NWLR (Pt 1259) Page 417 at 435. He further submitted that the payment of one month salary in lieu of notice is in breach of statutory provisions and unlawful citing CBN v Dinneh (2010) 17 NWLR (1221) 125 at 133. He further submitted that it was not paid at the time of the termination citing Oforishe v N.G.C Ltd (2018) 2 NWLR (Pt 1602) 35, Chukwumah v SPDC (1993) 4 NWLR (Pt 289) 512, Nigerian Society of Engineers v Ozah (2015) 6 NWLR (Pt 1454) 76. On issue 2, Learned Counsel submitted that the claimant has proved his case by adducing credible evidence, and that the appropriate order to be made is reinstatement.

Defendant reply on points of law

[20] Replying on points of law, learned defence counsel submitted that parties are bound by their pleadings and that it was never an issue that the suspension of the claimant was not in accordance with the enabling law; that the issue was whether the claimant was lawfully terminated. He argued that by making it an issue at the point of address the claimant seeks to expand the scope of his claims citing Plateau Publishing v Adophy (1986) 4 NWLR (pt.34) 205; Omosola v Oloriawo (2002) 2 NWLR (pt.750) 113. He submitted that address of counsel cannot replace pleadings or evidence in a case and urged the court to discountenance the issues of relating to suspension and service of suspension letter not contained in his pleadings. Counsel then urged the court to dismiss the claimant’s case.

Decision

[21] I have carefully considered the processes filed, the evidence led, written submissions and authorities. I will begin with a preliminary issue raised by defence counsel in the defendant’s reply on point of law at paragraphs 2.4 and 2.6 that the issue of suspension is not contained in the claimant’s pleadings and was only raised at the address stage. The following paragraphs of the statement of facts (pleadings) 17, 26, 28, and paragraph 7 of the claimants reply to the amended statement of defence are reproduced as follows:

17. The Claimant later learnt that the unlawful suspension was brought about by a report made by the director in charge of the Management Information System (M.I.S.) to the Vice Chancellor of the University which report allegedly indicted even the claimant whose work is supervised by a different director entirely. Notice is given to the defendant to produce the said report at the trial.

26. Having being on suspension for more than eleven (11) months, the Claimant was surprised when on the 18^th June, 2019, he was called through his mobile phone by a post-office attendant who informed him that he has a letter from the defendant, which letter happened to be the letter of termination of his employment. The Claimant avers that service of the said letter of termination of appointment is contrary to the Rules and Regulations regulating the condition of service of the Claimant as a Senior staff in the employment of the defendant. The said letter captioned termination of appointment dated 18^th June 2019 is pleaded.

28. The Claimant avers that all the above mentioned acts of the defendant were done in contravention of the Rules and Regulations contained in the conditions of service of the senior Staff of the defendant.

Reply to The Consequential Amended Statement of Defence

7. Claimant avers in response to paragraphs 13, 14 and 15 of the amended statement of defence that the suspension and the subsequent termination of his employment was unlawful and in total contravention of the enabling law governing the defendant.

[22] With all these averments in the claimant’s pleadings, how can learned defence counsel submit before this court that: “ it was never an issue that the suspension of the claimant by the defendant was not in accordance with the Act by the state of the pleadings.” Does defence counsel expect this court to believe that he is not aware that the disciplinary procedure is a process that ultimately may result in removal? I must state that defence counsel is completely in error as there are averments by the claimant on the issue of suspension.

[23] It is the law that the employee who complains that his employment contract has been breached has the burden to place before the Court the terms and conditions of his employment, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589, Okomu Oil Palm Ltd v. Iserhienrhien [2001] LPELR – 2471(SC); [2001] 6 NWLR (Pt. 710) 660. As required by law, the claimant has placed before the court the relevant documents required; his appointment letter (exhibit C1), confirmation (exhibit C2), promotion and status (exhibits C3,C5,C6) conditions of service (exhibit C12), letter of termination (exhibit C8) and letters of appeal (exhibits C9, C10, C11). The issues for determination are:

(i) Whether the claimant’s appointment was terminated in accordance with the defendant’s enabling law, and the rules and regulations governing the conditions of service for senior staff.

(ii) Whether on the pleadings and evidence the claimant ought to be entitled to the reliefs he is seeking.

[24] There is no dispute between the parties as to the following facts: the claimant is Principal Hardware Engineer; his appointment is permanent and pensionable; it is regulated by the defendant’s enabling law National Open University Act CAP N63 LFN 2010 (referred to as the University Law), statutes and ordinances, and the rules and regulations governing the conditions of service for senior staff. The Supreme Court in the case of PHCN Plc v. Offoelo [2013] 4 NWLR (Pt 1344) 380 at 410, Paras E-F; [2012] LPELR-19717 (SC) has held that an employment is clothed with statutory flavour if the appointment is protected by statute. See Comptroller General of Customs v. Gusau [2017] LPELR- 42081(SC) 30-31; Olaniyan v. University of Lagos [1985]2 NWLR (Pt 9)599; Garba v University of Maiduguri (1986) 1 SC 40, An employment with statutory flavor or employment regulated by statute acquires a distinct status that places the employment over and above the common law relationship of master and servant. I find established that the claimant’s appointment is one with statutory flavour.

[25] A contract of service with statutory flavor is determinable not by the parties but only by the statutory preconditions governing its determination, see Fakuade v. Obafemi Awolowo University Teaching Hospital [1993] 5 NWLR (Pt 5) 17; Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Federal Civil Service Commission v J. O. Laoye [1989] 2 NWLR (Part 106) Page 652 at 662, Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303. At this juncture, it is imperative to reproduce the relevant provisions of Section 14 (2), (3), and (4) of the National Open University Act (University Law) as follows:

14. Removal and discipline of academic, administrative and technical staff

(2) The Vice- Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by Council; and for the purposes of this subsection “good cause” means-

(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers, to be such as to render the person concerned unfit to continue to hold his officer, or

(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to hold his office; or

(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and condition of his service.

(4) Any person suspended pursuant to subsection (2) or (3) of this section, shall be on half pay and the Council shall, before the expiration of a period of three months after the date of suspension, consider the case against that person and come to a decision as to-

(a) whether to continue such person’s suspension and if so, on what terms (including the proportion of his emoluments to be paid to him);

(b) whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;

(c) whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or

(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld), as the Council may determine,

and in any case where the Council pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall, before the expiration of a period of three months from such decision, came to a final determination in respect of the case concerning any such person.

[26] It is also necessary to reproduce relevant provisions from Section 3 of the Conditions of Service of Senior Staff (exhibit C12) applicable to the claimant.

Section 3: Discipline

3.2.1 The power to exercise disciplinary control over members of staff of the University shall, in accordance with the Act, be vested in the Vice- Chancellor and the University Council.

3.2.2 It shall be the duty of the appropriate Dean/ Director/ Head of Department to report to the Registrar, in writing, any case of misconduct on the part of any member of his or her staff that comes to his/ her notice.

3.2.3 The Registrar, on receipt of such a report, shall forthwith forward it to the Vice-Chancellor with his/ her comments, and the Vice-Chancellor shall, after conducting such enquiries as he/she may deem fit, take an appropriate action and report to the Council.

3.2.4 Where a report of a disciplinary matter has been made by the Vice-Chancellor to the Council, the Council may accept the report of the Vice-Chancellor or set up an Adhoc Committee to investigate and report to the Council.

3.3.1 The disciplinary measures which may be invoked against an erring member of staff are as follows:

(ii) Written Query/Warning

(iv) Suspension

Whenever in the opinion of the Vice-Chancellor, a prima facie case of misconduct has been established against a member of staff, and it is necessary to investigate the matter further with a view to determining the culpability or otherwise as well as appropriate disciplinary action to take, the member of staff concerned may be suspended, pending the determination of the case.

[27] The claimant has complained that he was not issued a query and that both his suspension and the termination of his appointment are unlawful. From the disciplinary procedure guidelines contained in clause 3.3.1 of exhibit C12, there are several disciplinary measures that may be applied to an erring staff. A query is one of them, and so is a suspension. It is however not the procedure that a query must first be issued before an erring staff is placed on suspension. The Director MIS reported to the Vice Chancellor by internal memo on July 24, 2018 “illegal transactions on the Portal with apparent malicious intent” (exhibit D2). The Vice Chancellor is empowered by Section 14 (2) of the University Law, and clause 3.3.1 (iv) of the Conditions of Service to suspend a member of staff of the defendant. The claimant was suspended by exhibit D6 on 30^th July 2018 for “involvement in an illegal transaction on the portal”. The suspension was to pave the way for investigation, and the claimant was placed on half salary.

[28] The Vice Chancellor reported the matter to the Council; and at its 52^nd meeting held on 9^th October 2018, a Joint Council/Senate Disciplinary Committee was constituted to look into all the disciplinary cases; and the claimant’s case was one of them as seen in exhibit D4. By the provisions of Section 14 (4), (a), (b), (c), & (d) of the University Law, the Council shall before the expiration of a period of three months after the date of suspension consider the case against the claimant and come to a decision. The three months period would therefore lapse on 31^st October 2018. The evidence (exhibit D4) shows that the inaugural meeting of the Committee held on 21^st November, 2018. This is outside the three months period provided by Section 14 (4) of the University Law for the Council to consider the case against the claimant and come to a decision. I find that the Council did not come to any decision before the expiration of the three months period as provided by the University Law. On the 11^th March 2019, which is about five months after the three months period lapsed on 31^st October 2018, the defendant wrote a letter to the claimant informing him that the Governing Council has extended the suspension period by three months with effect from 28^th February, 2019 (exhibit D5). This is clearly in contravention of the provisions of Section 14 (4) (a) (b) (c) & (d) of the University Law.

[29] The Governing Council finally took a decision terminating the claimant’s appointment at its 55^th meeting held on Tuesday, 18^th June 2019 (exhibit D3). By this date, the claimant had been on suspension for a period of eleven months. I find that the disciplinary process culminating in the decision to terminate the claimant’s appointment was made outside the time frame provided by the University Law. The decision was communicated to the claimant by a letter dated 18^th June 2019 (exhibit C8) wherein he was informed that his appointment has been terminated with effect from Tuesday 18^th June 2019 on grounds of “misconduct and for services no longer required.” A staff may be terminated for ‘good cause’ in Section 14 (3) and the meaning of ‘good cause’ is expressly mentioned in Section 14 (3) (a), (b), (c), and (d). The reason stated in the termination letter ‘misconduct and for services no longer required’ do not fall within Section 14 (3) (a), (b), (c), (d) of the University Law. The law is settled that the rules and procedure regulating discipline and termination of employment protected by statute or with statutory flavour must be strictly complied with.

[30] Where the laid down statutory procedure is not adhered to, any decision emanating therefrom is null and void. I hold that the termination of the claimant’s appointment by a letter dated 18^th June 2019 is null and void, and it is of no effect for non-compliance with the provisions of the National Open University Act, the defendant’s enabling law, see Fakuade v. Obafemi Awolowo University Teaching Hospital supra, Olaniyan v. University of Lagos supra. The claimant is entitled to automatic reinstatement. He is reinstated immediately in the defendant as Principal Hardware Engineer on CONTISS 11 STEP 1 and with all the rights and privileges of the office, Shitta-Bey v Federal Public Service Commission supra, Garba v University of Maiduguri (1986) 1 SC 40, Iderima v Rivers State Civil Service Commission [2005] 16 NWLR (Pt 951) 378, Eperokun v. University of Lagos [1986] 4 NWLR (Pt 34) 162. The defendant is ordered to immediately release and pay the claimant all his accrued salaries, allowances and entitlements due to him from 30^th July 2018 when he was placed on suspension.

[31] The defendant has argued that the claimant was paid one months salary in lieu of notice which he accepted and so he cannot be heard to complain that his employment was not validly terminated. The employment of the claimant being of statutory flavor is not terminable by either party giving notice or payment of salary in lieu of notice but by the statutory provisions. The acceptance of a month’s salary in lieu of notice cannot preclude the claimant from complaining about the unlawful termination that is void ab initio, Military Administrator Benue State v Ulegede (2001) NWLR (Pt 741) 194, Adeniyi v Governing Council of Yaba College of Technology (1993) 7 SCNJ (Pt 11) 304; (1993) 6 NWLR (Pt 300) 426, M. Busari v Edo State Civil Service Commission [1999] 4 NWLR (Pt 599) 365. The law is settled that where an act is void ab initio, it cannot be validated by subsequent acts even if valid. This is because you cannot place something on nothing, U.A.C. Ltd v Macfoy (1961) 3 ALL ER 1160. The suspension of the claimant, and the termination of the claimant’s appointment are void notwithstanding the acceptance of the payment of one months' salary in lieu of notice.

[32] For all the reasons given above, I hereby declare and make the following orders:

1. I declare that the termination of the claimant’s appointment by the defendant’s letter Ref No: NOUN/PER/01239/122 dated 18^th June 2019 is null and void for non-compliance with the defendant’s enabling law National Open University Act, and the Rules and Procedure regulating the claimant’s employment.

2. The decision of the Governing Council terminating the claimant’s appointment contained in the letter Ref No: NOUN/PER/01239/122 dated 18^th June 2019 is of no effect, and it is hereby set aside.

3. The claimant is reinstated to the defendant’s employment as Principal Hardware Engineer on CONTISS 11 STEP 1 with all the rights and privileges of the office.

4. The defendant is ordered to immediately release and pay the claimant all his accrued salaries, allowances and entitlements due to him from 30^th July 2018, the date he was placed on suspension.

5. Costs of N100,000 in awarded the claimant.

Judgement is entered accordingly.

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Hon Justice O.A.Obaseki-Osaghae