IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 11TH DAY OF MAY, 2022
BEFORE HIS LORDSHIP: HON. JUSTICE S.O. ADENIYI
SUIT NO: NICN/KD/46/2019
DR. HUSSAINI MOMOH LAWAL ……………………….… CLAIMANT
AHMADU BELLO UNIVERSITY ……………………………. DEFENDANT
J U D G E M E N T
The Claimant commenced the instant suit by Complaint and Statement of Facts, filed originally on 06/12/2019; and by an Amended Statement of Facts deemed filed on 07/01/2021, pursuant to order of Court made on 09/11/2020, claimed from the Defendant the reliefs set out as follows:
a. A DECLARATION that the decision taken by the Defendant by virtue of its letter dated 9th September, 2019 with Reference No: P22097 titled “Dismissal from Service” respectively is illegal, null and void and of no effect whatsoever.
b. A DECLARATION that the purported “Dismissal from Service” of the Claimant from the employment of the Defendant through its letter 9th September, 2019 with Reference No: P22097 is arbitrary, unreasonable, without any justification known to law, unlawful, ultra vires the Ahmadu Bello University Law and Section 5e (x) of the Regulations Governing the Conditions of Appointment of Senior Staff of Ahmadu Bello University and the Code of Conduct of Public Officers being the statutory instrument regulating the employment of the Claimant and therefore illegal, oppressive, uncivilized, vicious, unconstitutional and null and void and of no effect.
c. A DECARATION that the Claimant is still an employee of the Defendant and he is entitled to be paid all his salaries, allowances and all entitlements appertaining to and due to him from the date of the issuance of the “Dismissal from Service” contained in the letter dated 9th September, 2019 with Reference No: P22097 till the date of the judgment of this Honourable Court.
d. AN ORDER of this Honourable Court setting aside the Defendant’s letter dated 9th September, 2019 with the subject “Dismissal from Service” with Reference No: P22097 purporting to dismissing the Claimant from the employment of the Defendant.
e. AN ORDER of this Honourable Court reinstating the Claimant to his employment with the Defendant to continue in the rank and position that the Claimant would have been but for the interruption of his employment by the letter dated 9th September 2019 with Reference No: P.22097.
f. AN ORDER of this Honourable Court compelling the Defendant to pay to the Claimant all his entitlements including salaries, allowances and all other employment benefits accruing to the Claimant from 9th September, 2019 when the letter of “Dismissal from Service” with Reference No: P22097 was written and delivered to the Claimant till the date when the judgment of this Honourable Court is delivered.
g. AN ORDER of this Honourable Court commanding Defendant to pay the sum of N5,500,000 (Five Million Five Hundred Thousand Naira Only) being the professional fees paid by the Claimant to the law firm of Madyan Legal Consult for the provision of legal representation to the Claimant in the prosecution of this claim before this Honourable Court.
h. AN ORDER of injunction restraining the Defendant, its servants, agents and privies and other person(s) claiming through or under and or succeeding the Defendant from acting on the letter dated 9th September, 2019 with Reference No: P22097 unlawfully and unconstitutional, withdrawing, terminating and or inducing the Defendant from the commission of any breach of the rights of employment of the Claimant by virtue of his employment as senior staff with the Defendant.
i. AN ORDER of this Honourable Court commanding the Defendant to pay 10% post judgment interest on any sum which the Court awards to the Claimant in the circumstance.
2. The Defendant joined issues with the Claimant by filing the Statement of Defence also deemed filed on 09/11/2020 to which a Counter-Claim was subjoined. The Defendant’s defence in summary is that a case of gross misconduct was established against the Claimant and that all the applicable laws and regulations were complied with, before the Claimant’s appointment was dismissed. The Defendant further contended that the Claimant is not entitled to his claims.
Whereof, the Defendant Counter-Claims against the Claimant as follows:
i. A Declaration that the Claimant is not entitled to any of the reliefs sought in the Statement of Facts, having failed to prove his case.
ii. Cost of this suit.
The Claimant did not file a Reply to the Defendant’s Statement of Defence and a Defence to Counter- Claim.
3. As gleaned from the Statement of Facts, the case of the Claimant in a nutshell, is that until his appointment was dismissed, he was a Senior Staff and an Examination Officer in the Department of Sociology of the Defendant. According to the Claimant, the Defendant breached the laid down procedure in dismissing his appointment on allegations leveled against him by a student, one Fatima Usman Ibrahim. It is therefore the Claimant’s case that his purported dismissal of appointment by the Defendant was unlawful.
4. The Defendant’s defence, essentially, is that the Claimant in his reply to the query on the allegation of extortion of money made against him, admitted to have collected the money from the said student. The Defendant further maintained, that it fully complied with the required processes and procedure as stated in the Staff Conditions of Service of the Defendant in dismissing the Claimant’s appointment.
5. At the plenary trial, the Claimant testified by himself as the sole witness. He adopted his Statement on Oath and further tendered in evidence ten (10) sets of documents as exhibits. He was further subjected to cross-examination by the Defendant’s learned counsel, after which he closed his case.
For the Defendant, one Ramatu Mohammed, the Deputy Registrar, Human Resources Administration, testified as the sole witness. She adopted her Statements on Oath as her evidence-in-chief and tendered in all, a total of thirteen (13) sets of documents in evidence. She was also cross-examined by learned counsel for the Claimant.
At the conclusion of plenary trial, parties filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
6. In the final address filed on 20/10/2021, learned counsel for the Defendant, A. Is’haq Esq., formulated a sole issue as having arisen for determination in this suit that is:
“Whether or not the Claimant has established his claims before this Honourable Court to be entitled to the reliefs sought.
On behalf of the Claimant, his learned counsel, Sunusi Musa, Esq., filed his final address on 02/12/2021, wherein he raised two issues as having arisen for determination in this suit, namely:
1. “Whether or not in the Joint Committee of the Council and the Senate of the Defendant, was properly constituted as provided by the provision of the law?”
2. “Whether or not the dismissal of the Claimant was valid since it was done base (sic) on the recommendation of JCCS that was not properly constituted in accordance with the extant law governing procedure for the dismissal of senior staff of the Defendant?”
The Defendant’s Reply on Points of Law was filed on 08/12/2021.
7. On the basis of the pleadings of parties before the Court; and the totality of the evidence placed on record by either side, it is my considered view that the focal issues that call for resolution in this suit; and without prejudice to the issues formulated by learned counsel in their written submissions, are:
1. Whether or not there was compliance with the provisions of the Defendant’s Laws in dismissing the Claimant from his employment.
2. Upon resolution of issue (1), whether the Claimant lawfully established his entitlements to the declaratory reliefs and other reliefs claimed in this suit against the Defendant?
3. “Whether the Defendant has proved the Counter-Claim.”
As I proceed to resolve these issues, I had also given careful consideration to and taken due benefits of the final written and oral arguments as canvassed by learned counsel for the contending sides; and whenever I deem it necessary in the course of this judgment, I shall make specific reference to their submissions.
I shall proceed to take issues one and two together.
8. Parties are ad idem that the Claimant was employed as a senior member of staff in the Department of Sociology of the Defendant and that his employment was statutory. In this regard, the Claimant’s letters of offer of appointment and confirmation of appointment were admitted in evidence as Exhibits C1 and C1A. Parties are also not in dispute that one Fatima Ibrahim Usman, a student of the Department of Sociology made an allegation of extortion of money against the Claimant for the purpose of altering her examination scores. There is also no contention by parties that based on the said allegation, the Defendant issued a query on the Claimant and two other lecturers; that upon receipt of the Claimant’s reply to the query, the Defendant invited the Claimant to appear before the Joint Council and Senate Committee on Senior Staff Disciplinary Matters (JCSC) and that he was subsequently dismissed on 09/09/2019. The query, reply to the query, letter of invitation to appear before JCSC and letter of dismissal from service were respectively admitted in evidence as Exhibits C2, C2A, C3 and C4,
9. By my understanding, the grouse of the Claimant against the Defendant is that his appointment was unlawfully determined as same can only be determined in the manner provided by the condition of his appointment and the Defendant’s Statute. According to the Claimant, the Defendant did not comply with the statutory provision that makes it mandatory for the Joint Committee to be chaired by the Council Chairman because the Joint Committee that investigated and dismissed his appointment was chaired by one Dr. Ahmed Tijani Mora, who was a contract staff. It is the Claimant further contention that he was not given opportunity to be heard or defend himself when he appeared before the Council.
10. Now, I am not unmindful that the Claimant has sought declaratory reliefs in this suit; the implication being that the burden for him to prove the allegations leveled against the Defendant exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act 2011. The settled position of the law, from time immemorial, is that even though the power to make a binding declaration of right is discretionary in nature; a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right, he seeks from the Court. See the authorities of Dumez Nigeria Limited Vs Nwakhoba  All FWLR (Pt. 461) 842; Ogolo Vs Ogolo  All FWLR (Pt. 313) 1; Ndayako Vs Dantoro  13 NWLR (Pt. 889) 187; Olabanji Vs Omokewu  7 SCNJ 266.
11. As it is also settled, the general principle is that where the conditions for appointment or determination of contract of service are governed by the pre-conditions of an enabling statute, so that a valid appointment or determination is predicated on satisfying such statutory provisions, such contract is one with statutory flavour. The contract is determinable not by the parties, but only by statutory pre-conditions governing its determination. See Fakuade Vs O.A.U.T.H  5 NWLR (Pt 291) 47; Idoniboye-Obu Vs NNPC  1 SCNJ 87 at 111.
12. The relevant testimony of the Claimant as CW1 is that the dismissal of his appointment by the Defendant is vicious and in absolute breach of laid down procedure. His testimony in prove of his allegation is that one Fatima, a student of his department reported to Dr. Gadzama, also a lecturer of the same department, that she gave money to the Claimant but that the Claimant did not pass her but rather for him to seek explanation on the said allegation, the said Dr. Gadzama reported the Claimant to the Head of Department.
The Claimant further testified that he received a query containing four allegations from the Registrar and Secretary to the Council of the Defendant; that he promptly replied the query and denied all the allegations; that on 10/10/2018, he received a letter of invitation to appear before the Joint Council and Senate Committee on Senior Staff Disciplinary Matters; that when he appeared before the Joint Committee on 17/10/2018, he was not given any opportunity to defend himself. With regards to the composition of the members of the Joint Committee that took the decision on the dismissal of his appointment, the Claimant testified that as stipulated by the Defendant’s Statute, the Joint Committee ought to have been chaired by the Chairman but that the said Joint Committee was chaired by one Dr. Ahmed Tijani Mora who at the material time was a contract staff.
13. The Claimant testified further that he received a letter dismissing his appointment on 09/09/2018; that upon receipt of the letter of dismissal, he wrote a letter to appeal his dismissal and in spite of his appeal and a letter of reminder, the Defendant failed to take any action with regards to his appeal, hence this present action was instituted.
14. The argument of learned counsel for the Claimant is that the Defendant failed to comply with the composition of members of Joint Committee of Council and Senate as stipulated in paragraph 5, Statute 8 of the Ahmadu Bello University Law, Cap A14 Laws of Federation of Nigeria 2004.
Citing the provision of Statute 8 (5) of Ahmadu Bello University Law (supra) and the cases of Inakoju & Ors Vs Adeleke & Ors  LPELR 1510; Alhassan Vs ABU, Zaria & Ors  LPELR 8138, learned counsel submitted that the proper composition of the Joint Committee of Council and Senate is a condition precedent and that failure to comply with the statutory provision in dismissing the Claimant renders the action of the Defendant as null and void.
Learned counsel for the Defendant debunked the argument of the Claimant’s counsel that DW1 under cross-examination admitted that Dr. Ahmed T. Mora was the Chairman of the Joint Committee of Council and Senate that investigated and recommended the dismissal of the Claimant.
15. In view of its relevance to the determination of this case, I find it necessary to reproduce the provision of Statute 8 (5) of the Ahmadu Bello University Law,(supra). It provides as follows:
“Subject to the provisions of this Statute and to the terms of his appointment, no member of senior staff shall be dismissed save by the decision of Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment.
Provided that: -
(e) Before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and Senate consisting of the Chairman of the Council as Chairman and equal members of the Council and of the Senate.
(f) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council”.
16. Now, in view of the documentary evidence before the Court, I do not suppose much time and energy should be exerted on this issue. This is in consonance with the established legal proposition that documentary evidence, being the best evidence, is the yardstick or hanger to access the veracity or credibility of oral testimony and that extrinsic evidence cannot be admitted to contradict it, add or vary the provisions contained in a document. See Section 128(1) of the Evidence Act 2011 on the issue. See also Skye Bank PLC Vs Akinpelu  9 NWLR (Pt 1198)179; Ndubueze Vs Bawa  LPELR 43874.
17. I had undertaking a crucial review of Exhibit D6, the minutes of 183rd (Regular) meeting of the Governing Council held on Tuesday 30th and Wednesday 31st July, 2019. Present as the Chairman, was Mal. (Dr.) Adamu Fika, the Pro-Chancellor. The minutes of the meeting was equally signed by the same Mal. (Dr.) Adamu Fika as the Chairman. I had also reviewed the evidence of the Defendant’s sole witness under cross-examination. DW1 testified as follows:
“I know Dr. Ahmed T. Mora. Dr. Mora was not the Chairman of the Governing Council. There was never a time Dr. Mora was the Chairman of Council.” (Underlining mine for emphasis)
18. I am of the view that on the basis of the overwhelming documentary evidence, the argument of learned Defendant’s counsel that DW1 admitted while testifying under cross-examination that Dr. T. Mora was the Chairman is an attempt to mislead the Court.
It is trite and elementary to restate that address of counsel, no matter how brilliant, how eloquent, how erudite or articulate cannot take the place of evidence. See See BFI Group Corporation Vs Bureau of Public Enterprise  18 NWLR (Pt 1332) 209; Hamidu & Anor Vs Kaduna Electricity Distribution Co  LPELR 48281.
There being no evidence of non-compliance on the composition of members of the Joint Committee that investigated and took the decision to dismiss the Claimant, I hereby discountenance the entirety of learned Claimant’s counsel’s arguments and/ his submission that the Defendant did not comply with the statutory provision. The members of the Joint Committee that investigated and dismissed the Claimant were properly constituted. And I so hold.
19. It is the further contention of the Claimant that contrary to the provision of Statute 8 (5) of the Ahmadu Bello University Law (supra), he was not given the opportunity to be heard before he was dismissed.
As conceded by learned counsel on contending sides, and as such the issue needs not be belabored, before a decision can be taken to terminate or dismiss an employee as the Claimant in the instant case, the Council, consisting of the Chairman, must have done two things, namely: -
(a) received and considered a report of the Joint Committee of the Council and the Senate on the case with the Chairman presiding;
(b) shall have given the employee reasonable opportunity of being heard.
20. It is settled that the concept of fair hearing is not a mere rhetoric or empty verbalism or technical rule; it is one of substance. As correctly submitted by learned counsel for the Defendant, where the evidence adduced at the trial or conduct of any proceedings clearly revealed that the principle of fair hearing was observed, it is for the person alleging non-observance to adduce to the contrary. The cases of NNPC Vs Clifco Nig Ltd  4 SCNJ 197; UBN Plc Vs Astra Builders Ltd  2-3 SC (Pt 1) 59 cited in support of his submission are apposite. Accordingly, a party alleging the actual or imminent breach must show clearly from the facts of the case that his right has been violated or in the verge of being violated.
21. The alleged breach of procedure was stated in paragraph 22 of the Amended Statement of Facts as follows:
“The Claimant while at the Council and Committee sittings was not given any opportunity to state the facts as they happened nor enter his defence and was asked to leave the place of the tribunal”.
DW1 in defence maintained that the Defendant complied with the procedure stipulated by the Statute before the Claimant was dismissed. According to DW1, after the Vice Chancellor of the Defendant received a report of the Committee that investigated gross misconduct alleged to have been committed by the Claimant and two other lecturers, a query was issued on the Claimant; that upon receipt of his reply, the case of gross misconduct was referred to the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (JCCS); that the Claimant as well as other witnesses made representations at the JCCS at which the Claimant admitted that he received the sum of N180,000.00 from one Fatima Ibrahim Usman, a student of his department; that the Claimant was invited to appear before the Governing Council of the Defendant and that his dismissal was approved by the said Governing Council.
Exhibits D1, D3, D5, D5A and D6 were tendered in evidence to buttress the Defendant’s case.
22. I wish to point out that in labor law, the important thing required of the Defendant, by the rules of natural justice or fair hearing applicable to this case, is to give the Claimant opportunity to be heard. The question is whether a party who is entitled to fair hearing and who is desirous of being heard before his fate is decided, had in fact been given ample and adequate opportunity of being heard. See Ahmad Vs Sahab Enterprises (Nig) Ltd & Ors  LPELR 41313 and Oloruntoba – Oju Vs AG Federation  LPELR 41250.
23. I had painstakingly reviewed the exhibits tendered by the Defendant to prove that the Claimant was given opportunity to defend himself and that proper procedure was adopted before he was dismissed. My findings are as follows:
a. A Committee was set up to investigate the alleged gross misconduct of three academic staff of Department of Sociology and a report of the Committee (Exhibit D1) was submitted to the Vice Chancellor.
b. Exhibit D3 stating the alleged offences was issued on 10/10/2018 to appear before the Joint Committee of Council and Senior Senate Disciplinary Matters on 17/10/2018.
c. It is established in Exhibit D4, the report of JCCSSD that the Claimant and three other witnesses testified before JCCSSD, wherein the Committee established that he committed an act of misconduct as provided in Section 5 C (xxii) and (xxiii) of the Regulations Governing the Conditions of Appointment of Senior Staff and the Committee recommended for his dismissal.
d. By Exhibit D5, dated 25/07/2019, the Claimant was invited to appear before the Governing Council on 30/07/2019.
e. In Exhibit D6, the minutes of the 183rd (Regular) meeting of the Governing Council, it was stated that the Claimant appealed to the Council to temper justice and mercy and that he would never repeat the offence
f. After deliberations, the Council approved the recommendation of the JCCSSD for dismissal from service.
24. In the instant case therefore, I am of the firm view that adequate time was given to the Claimant to prepare his defence and he was also given opportunity to be heard; and as such one can say that the requirements of natural justice were sufficiently complied with. In other words, the Defendant did not breach the terms and conditions as stated in Exhibit C1 and the Defendant’s Statute. The Claimant’s complaint of non-compliance with the disciplinary procedure as prescribed by the University Statute and his condition of service; and for lack of fair hearing is baseless and lacks merits. I so hold.
25. In the circumstance therefore, I am of the candid opinion that the Defendant exercised its right to dismiss the Claimant’s appointment for gross misconduct vide Exhibit C4, the letter of dismissal of appointment. In other words, the dismissal of the appointment of the Claimant by the Defendant is not unlawful. I so further hold.
Having held that the dismissal of the Claimant’s appointment was not unlawful, I am of the view that the Claimant’s claims for reinstatement, arrears of salaries and allowances cannot be granted since these reliefs are hinged on the dismissal being unlawful.
Reliefs (d), (e), (f), (h), (g) and (i) to set aside the dismissal of the Claimant, for reinstatement, payment of arrears of salaries/allowances, payment of professional fees, interest on the sum awarded by the Court and for injunction accordingly fail. And I so hold.
26. On the basis of the foregoing analysis therefore, I must and I hereby resolve issues one and two for determination in this suit against the Claimant. It is therefore the conclusion of the Court that the Claimant’s claim lacked in merit, in substance and in probity. The suit shall be and is hereby accordingly dismissed.
The Defendant filed a Counter-Claim seeking a declaratory relief and cost of prosecuting this suit. The Claimant did not file a Defence to the Counter- Claim. Has the Defendant as Counter-Claimant adduced necessary credible and convincing evidence through its witness to prove the reliefs, declaratory and otherwise?
It is settled that a Counter-Claim is for all intents and purposes a separate, independent and distinct action and the Counter-Claimant, like all Claimant in the main actions, must prove his Counter-Claim with credible and convincing evidence to obtain judgment. If the Counter-Claim includes a declaration as it is in this case where the declaration is the fountainhead of the Counter-Claim, the Counter-Claimant must also satisfy the Court with credible evidence that he is entitled to a declaration. That, he has to do on the strength of his case as the fact that the Defendant to the Counter-Claim admits his Counter-Claim or failed to file a defence is of no consequence.
The Defendant/Counter-Claimant’s claim in relief (1), is seeking a declaration that the Claimant is not entitled to any of the reliefs sought having failed to prove his case.
Having undertaken an extensive evaluation of the evidence adduced in support and against both the main suit and the Counter-Claim together in the foregoing, I hereby permit myself to adopt the Court’s findings and conclusions in the foregoing in holding that the Defendant is entitled to the grant of relief (1) of his Counter Claim, the same having been found to be meritorious.
As regards, the award of cost of the action, firstly one would state that cost follows event. Where the issue of cost was not raised in the Writ or Complaint as a claim before the Court, it does not need to be proved strictly as in proof of special damages. It is at the discretion of the Court upon the delivery of judgment to award costs to the successful party. However, in the instant case, cost was raised as Counter-Claim and therefore ought to be proved strictly. The Defendant as Counter-Claimant failed to adduce necessary credible and convincing evidence through its sole witnesses for its claim for cost. Without further ado, the Defendant’s Counter –Claim for cost fails and is accordingly dismissed. I so hold
In the final analysis, the Defendant’s Counter-Claim succeeds in part. For the avoidance of doubt and abundance of clarity, judgment is hereby entered with respect to the Counter-Claim on the following terms:
1. It is hereby declared that the Claimant is not entitled to any of the reliefs sought in his Statement of Facts.
2. Parties shall bear their respective costs.
SINMISOLA O. ADENIYI
Sanusi Musa Esq., for Claimant
A. I’shaq Esq., for Defendant