Dr. Aondoakaa Asambe -VS- Federal University, Dutsin-Ma, Katsina & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE E.N. AGBAKOBA

DATED 18^TH JULY 2022 SUIT NO: NICN/ABJ/57/2021

BETWEEN

DR. AONDOAKAA ASAMBE …………...................................... CLAIMANT

AND

1. FED. UNI. DUSTIN-MA, KATSINA

2. THE VICE CHANCELLOR FED. UNI. DUSTIN-MA, KATSINA DEFENDANT

3. THE GOVERNING COUNCIL FED. UNI. DUSTIN-MA, KATSINA

REPRESENTATIVE

B. T. JIJA Esq. for the Claimant

SUNUSI MUSA Esq. with ABDULRAZAK ABDULGANUJU Esq. for the Defendants

JUDGEMENT

1. The Claimant at the beginning of the action via a General Form of Complaint, Statement of Facts and other frontloaded process dated and filed 25^th February 2021 commenced this suit against the Defendant. However by an order of the court, the Claimant filed and served his Amended General Form of Complaint, Statement of Fact and other processes now dated and filed 9^th December 2021seeking the Honorable Court for the following reliefs:

1. A DECLARATION that the appropriate entry point Grade Level and Salary Scale for a Doctor of Veterinary Medicine (DVM) employed as a Veterinary Officer in the Federal Civil Service, including the Federal University, Dutsin-Ma, Katsina under the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina and the Scheme of Service for Federal Civil Service is Grade Level 12 on CONMESS 02/02.

2. A DECLARATION that the appropriate entry point Grade Level and Salary Scale for a Doctor of Veterinary Medicine (DVM) in the Academic Staff Cadre under the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina; the Scheme of Service for Federal Civil Service and the National Universities Commission Regulations is Lecturer II on CONUASS 03/02 with appropriate allowances from CONMESS.

3. A DECLARATION that the appropriate Grade Level and Salary Scale for a Doctor of Veterinary Medicine (DVM) in the Academic Staff Cadre, who further obtains a Master of Science Degree (M.Sc.) under the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina; the Scheme of Service for Federal Civil Service and the National Universities Commission Regulations is Lecturer I on CONUASS 04/02 with appropriate allowances from CONMESS.

4. A DECLARATION that the placement of the Claimant, a Doctor of Veterinary Medicine employed as a Veterinary Officer in the University Farm of the 1st Defendant on Grade Level 9 CONTISS II 08/02 instead of Grade Level 12 on CONMESS 02/02 was illegal, wrongful and a violation of the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina and the Scheme of Service for Federal Civil Service.

5. A DECLARATION that the placement of the Claimant, a Doctor of Veterinary Medicine in the Department of Animal Science, Federal University, Dutsin-Ma, Katsina on the Rank of Assistant Lecturer on CONUASS 02/02 instead of Lecturer II on CONUASS 03/02 upon his change of cadre from non-academic to academic staff was illegal, wrongful and a violation of the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina; the Scheme of Service for Federal Civil Service and the National Universities Commission Regulations.

6. A DECLARATION that the promotion of the Claimant to the Rank of Lecturer II on CONUASS 03/02 upon his acquisition of a Master of Science Degree in addition to his qualification as a Doctor of Veterinary Medicine instead of Lecturer I on CONUASS 04/02 was illegal, wrongful and a violation of the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina; the Scheme of Service for Federal Civil Service and the National Universities Commission Regulations.

7. A DECLARATION that the failure, refusal or neglect of the Defendants to pay the Claimant his appropriate salary and allowances based on his appropriate Grade Levels and Salary Scales is unwarranted, illegal, wrongful and a violation of the Conditions and Schemes of Service for Federal University, Dutsin-Ma, Katsina; the Scheme of Service for Federal Civil Service and the National Universities Commission Regulations.

8. AN ODER COMPELLING the Defendants to convert the placement of the Claimant as a Veterinary Officer on CONTISS II 08 Step 02 vides the offer of temporary appointment No. FUD/REG/E.0645/VOL.I dated 19th April, 2013 to a Veterinary Officer on CONMESS 02/02 from 19th April, 2013 to the date of Claimant’s change of cadre to an Academic Staff.

9. AN ODER COMPELLING the Defendants to convert the placement of the Claimant on the Rank of Assistant Lecturer on CONUASS 02/02 vides correspondence No. FUDMA/ REG/PS405/ 1/38 dated 26th September, 2013 to Lecturer II on CONUASS 03/02 effective from 24th September, 2013 to the date of Claimant’s next promotion, with the consequential annual increment.

10.AN ODER COMPELLING the Defendants to upgrade the Claimant to the Rank of Lecturer I on CONUASS 04/02 from the date of the Claimant’s acquisition and presentation of his M.Sc. Degree to the Defendants up to the date of the Claimant’s next promotion and thenceforth, with the consequential annual increment.

11.AN ORDER COMPELLING the Defendants to pay to the Claimant the cumulative sum of N11,018,3 16.06 (Eleven Million Eighteen Thousand Three Hundred and Sixteen Naira Six Kobo) only being the total salary shortfall and unpaid allowances of the Claimant as particularized in Tables A, B, C, D and E at paragraphs 36 — 39 of the Statement of Facts.

12.10% INTEREST PER ANNUM on the total judgment sum from the date of judgment until final liquidation.

13.GENERAL AND EXEMPLARY DAMAGES OF N50, 000,000.00 (Fifty Million Naira) only against the Defendants jointly and severally for violating the Claimant’s rights as an employee of the University, emotional and psychological trauma.

2. In response to this suit commenced, the 1^st-3^rd Defendants did not filed a Memorandum Conditional Appearance, instead they filed Joint Statement of Defence/Counterclaim and all frontloaded document dated and filed 29^th November 2021. The Claimant also filed a Motion on Notice, an 11 Paragraph Affidavit deposed to by the Claimant in the suit and a Written Address dated and filed 20^th October 2021. Defendants filed a 4 Paragraph Counter Affidavit in opposition in to the Claimant’s Motion on Notice deposed to by KATHERINE JOSEPH a Desk officer in the office of the law Firm representing the Defendants and Written Address dated and filed 15^th November 2021. Claimant did not file a Reply to the Defendants’ Defence. With these pleadings filed, parties joined issues.

3. Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendant/Counterclaimants to the complaints.

CLAIMANT’S CASE

4. Claimant is a Lecturer in the Department of Animal Science, Federal University Dutsin-Ma, Katsina State. Claimant is a Doctor of Veterinary Medicine (DVM) and also holds a Master of Science Degree in Animal Food Medicine. By an Offer of Temporary Appointment dated 19^th April 2013,he was placed on the initial salary scale of CONTISS II 08 step 02 upon his employment as Veterinary Officer by the Defendants, during which period the Claimant was also assigned academic courses to teach in the University even though he was a nonacademic staff at the time.

5. Claimant averred that sometime on or about the 26^thday of September, 2013 an approval was granted by the 1^stDefendantfor the Claimant’s Change of Cadre from a Veterinary Officer to an Assistant Lecturer on CONUASS 2/2, to draw relevant allowances from CONMESS.
Claimant averred that by a correspondence dated 1^stApril,2014 and signed by the Registrar of the 1^stDefendant, his appointment was regularized from Temporary to Provisional and his appointment was later confirmed vides a correspondence dated 17th February, 2016 and signed by the then Acting Registrar of the 1^stDefendant.

6. Claimant stated that after about a year of assumption of office as an academic staff, he was never paid the requisite CONMESS allowances, consequent upon which the Claimant authored a correspondence dated 6th March, 2014 wherein he demanded for the implementation of the said allowances. In response to the request of the Claimant for the implementation of CONMESS Allowances, the Defendants vides an Internal Memo with Reference No. FUDMA/REG/PS405/ 1/55dated 21st May, 2014 declined the request and advised that the Claimant wait and apply after the University establishes a Veterinary Clinic.

7. Claimant further stated that sometime in the year 2015, a Veterinary Clinic for the University was launched and the Veterinary Clinic effectively took off and the Claimant brought his professional expertise as a Veterinary Doctor to bear in rendering services at the Veterinary Clinic with huge revenues generated for the University in the process. With the take-off of the University Veterinary Clinic, the Claimant became entitled to Call Duty Allowance as he was offering services at the Clinic on Call Duty. However, his persistent demands for the payment of these allowances by the Defendants yielded no positive result as the Defendants were hell bent on denying the Claimant the said allowances for no just cause, notwithstanding the establishment of a Veterinary Clinic in the University.

8. Claimant averred that the internal dispute resolution mechanisms of the Defendants were effectively exhausted by him and highest decision making body in the university, the 3^rd Defendant sustained the illegality and abuse of conditions and schemes of service perpetrated against the claimant, with a clear warning to the Claimant not to bring the matter to the council again.

DEFENDANTS’ CASE

9. Defendants on the other hand admitted paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 28, denied paragraphs 5, 11, 12, 13, 14, 15, 16, 17, 18,19, 20, 21, 22, 23, 25, 26, 27, 29, 30, 31, 32, 33,34,35,36,37,38, and 39 and stated that they were not in the position to admit or deny paragraphs 9 and 10 of the Claimant’s Statement of Facts.

10. The Defendants stated that the Claimant was offered temporary appointment as Veterinary Officer in the Department of Animal Health & Prod via a letter dated 19^thApril, 2013 which he voluntary accepted. The Claimant however applied for change of Cadre from Veterinary Officer (Non-Academic) to a Lecturer (Academic Staff), the application of the Claimant was approved by the 1^stDefendant from Veterinary Officer to Assistant Lecturer in accordance with the Scheme of Service of the 1st Defendant via a letter dated 26^thSeptember, 2013 which the Claimant accepted with terms and conditions.The Defendants averred that after the Claimant was appointed, he voluntarily accepted the appointment without raising the issue ofimproper placement via a letter of acceptance dated 11^thMay, 2013. The appointment of the Claimant was regularized from Temporary to Provisional as AssistantLecturer sequel to the regularization interview conducted on the 23^rd September, 2013. The appointment of the Claimant was subsequently confirmed by the Governing Council via a confirmation letter dated 17th February, 2016. The Defendants averred that scheme of service used in the civil service of the Federationdoes not apply to employees of the Defendant because the employees of the 1st Defendant are not civil servants. And by the provisions of the Scheme ofService of Senior Staff of the 1^stDefendant Revised August, 2017 the entry appointment of a candidate possessing DVM (Doctor of Veterinary Medicine) is Assistant Lecturer on Salary Scale CONUASS2. And the proper placement of employees of the Defendants including the Claimant is guided by the provision of theScheme of Service of Senior Staff of the 1^stDefendant which was revised in 2017. As at 2013 when the Claimant was employed, by the provision of the Scheme of Service of Senior Staff ofthe 1st Defendant, the entry appointment of a candidate possessing DVM (Doctor of Veterinary Medicine) is Assistant Lecturer on salary ScaleCONUASS 2/2.The Defendants averred that they are not the under the directive of the NationalUniversities Commission in the way and manner they employ the staff of the 1^stDefendant.The 1^stDefendant is also not under the supervision of theHonourable Minister of the Federal Ministry of Agriculture and Rural Development. Therefore, correspondences to the Honourable Minister of Agriculture and Rural Development by any government agency are not communicated to the 1^stDefendant.

11. Defendants averred that, the Claimant can only beentitled to CONMESS Allowances when there is a fully established faculty of Veterinary Medicine and Veterinary Teaching Hospital in the 1^st Defendant, but up till now there is none in the 1^st Defendant to enablethe Claimant to benefit from the CONMESS Allowance. And by the provision of Scheme of Service of SeniorStaff of the 1st Defendant Revised August, 2017 the next upgrade afterentry appointment of a candidate possessing DVM (Doctor of VeterinaryMedicine) is Lecturer II after the candidate possessed Master’s Degree.Defendants stated that after the Claimant completed his Master’s Degree, he furnished the 1^stDefendant with the evidence of completion of study and requested the 1^stDefendant to upgrade him from Assistant Lecturer to Lecturer I.

12. The Defendants stated that it is not true that the Claimant has exhausted all the internaldispute resolution mechanism of the Defendant before filing this action. By the provision of the Federal University Dutsin-Ma (Establishment) Act, 2015, the visitor is the final resort to on all dispute and his decision binds every staff and the Defendants. The Claimant never referred hisgrievances to the Visitor. Also by the provision of the Scheme of Service for Senior Staffof the 1st Defendant, the requirement for the direct appointment of a candidate as Lecturer II is possession of a Doctorate Degree plus DVM. The 1st Defendant via its Letter dated 5th June,2018 where he was informed that the Appointments and PromotionCommittee was unable to approve his upgrade on the basis that, the 1^stDefendant does not have Faculty of Veterinary Medicine or VeterinaryTeaching Hospital and he was advised to be patient until the Faculty of Veterinary Medicine is established. Defendants further stated that, the Claimant can only be entitled to the allowances he claimed after the 1st Defendant established Faculty of Veterinary Medicine or Veterinary Teaching Hospital.The Claimant on his Letter dated 24th June, 2019 wrote another appeal for re-grading and proper placement,which the 1st Defendant responded in its Letter dated 23^rdOctober, 2019 where it was made clear to the Claimant that, the 1st Defendant has neither Faculty of Veterinary Medicine nor Veterinary Teaching Hospital where he can be fully utilized, it was also clearly stated that the Claimant’s placement as Lecturer II on the completion of his Masterswas in order. The Defendants also averred 1st Defendant specifically intimated the claimant that, by the provision Scheme of Service for Senior Staff the entry appointment of candidate possessing DVM is Assistant Lecturer and Lecturer II on the completion of Master’s Degree. The Claimant was never paid any wrong salary. He is properly placed and his salary is being paid based on his proper placement.

13. The Defendants averred that the Claimant’s case is statute barred having been filed out of the time statutorily provided for such action to be commenced as the Claimant also did not file this case within the time stipulated by the Public Officer Protection Act, 2004.

14. At the trial,a careful look at the statement of facts filed by the Claimant and the joint statement of Defence filed by the Defendants revealed that the suit is hinged mainly on documentary evidence and analyses of same without the necessity of calling oral evidence. And the Honourable Court on the 27^th Day of January, 2022 ordered parties to file and exchange their written addresses for and against the suit to fast track the determination of the same.

15. The Claimants filed his Final written which is dated 23^rd February 2022 and filed 25^th February 2022. Defendants filed their Final Written Address however he filed an application extending time within which to file his Final Written Address which was granted and regularized by the Court on the 6^th April 2022. The Defendants did not file a Reply on Points of Law.

CLAIMANT’S FINAL SUBMISSION

ISSUES FOR DETERMINATION

Claimant in addressing the Court raised two issues for determination, they are

1. Whether or not the Claimant exhausted all the internal disputes resolution mechanism before instituting this suit.

2. Whether or not the Claimant has established his claims on the preponderance of evidence to be entitled to the reliefs sought.

16. On Issue One (1), Learned Counsel posited that this issue raises a jurisdictional question, which by law must be considered and determined one way or another before a determination of the substantive suit. Counsel submitted that the question of jurisdiction of a court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and become a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic but extrinsic to the process of adjudication. TRADE BANK PLC V. BENILUX (NIG) LTD (2003) 9 NWLR (pt. 825) 416; ONUORAII V. K.R.P.C LTD (2005)6 NWLR (Pt. 921) 93; GAFAR V. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (pt. 1024) 375; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989)4 NWRL (pt.117)517 and NYESOM V. PETERSIDE & ORS (2016)2 CAN (pt.1)112 SC.

17. Counsel citing the locus classicus case of MADUKOLU V. NKEMDILIM (1962)2 SCNLR 341 submitted that the Supreme Court held that for a court of law or tribunal to have jurisdiction to hear and determine any matter before it, it must satisfy the now settled conditions or have the following ingredients;

a. it must be properly constituted as to the number of qualification of its membership;

b. any condition precedent to its exercise of jurisdiction must have been fulfilled;

c. the subject matter of the case must be within its jurisdiction and,

d. the case or matter must have been brought to the court by the due process of law

ATTORNEY GENERAL OF ANAMBRA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2007) LPELP-603.

18. Learned Counsel to the Claimant argued that the Defendants have effectively admitted that the Claimant did all he needed to do in ventilating his grievance except recourse to the Visitor as purportedly stipulated by the Federal University Dutsin-Ma (Establishment) Act, 2015. Thus the question as to whether or not the Claimant was obligated or duty bound to take his grievance to the Visitor who is the President of the Federal Republic of Nigeria, before instituting this action. Counsel submitted that there is nothing whatsoever in the Federal University Dutsin-Ma (Establishment) Act, 2015 making it necessary for the Visitor to have a say on any dispute between an employee and the Universitymanagement before resort to litigation.Section 15(1) of the Federal University Dutsin-Ma (Establishment) Act, 2015.Counsel submitted that it is misconceived for the Defendants to draw the Visitor into the subject matter of this suit. As it is purely a matter within the powers of the 3rd Defendant to handle as the highest decision making body in the University. Even section 15 (2) and (3) of the Act which provides for the functions of the Visitor have no mention whatsoever as to the requirement for disputes between employees and the University management to be submitted to the Visitor for resolution. He submitted that the law is trite that where the provisions of a statute are explicit, clear and unambiguous, they should be given their ordinary, natural and grammatical meaning. SYLVESTER V. OHIAKWU (2014)5 NWLR (PT.1401)467 KRAUS THOMPSON ORGANIZATION LTD V. NIPSS (2004)17 NWLR (PT.901)44G IFEZUE V. MBADUGHA (1984)1 SCNLR 427 AND IZEDOMWEN V. UBA PLC (2012)6 NWLR (PT.1295)1. Counsel submitted that that no extraneous meaning, requirement or words can be read into any statutory provision. Although if the above cited provisions of the Federal University Dutsin-Ma (Establishment) Act, 2015 required recourse to the Visitor, there is nothing whatsoever in the Act voiding or making nugatory any suit instituted without recourse to the Visitor. He submitted the use of the word “MAY” in section 14 of the Act which connotes discretion or permissiveness. NDLEA v BABTUNDE (2015)16 NWLR (pt.1381)589.

19. Claimant’s Counsel finally submitted that in determining the issue of jurisdiction, it is the Statement of Claim that the court is obliged to look at, not the Statement ofDefence or any other process. OGUNBADEJO v ADEBOWALE (2008) ALLFWLR (pt. 405)1707 (CA) and AROYEWUN v OBA ADEDIRAN (2004) ALLFWLR (pt.225)1.

20. On Issue Two (2), Counsel submitted that the Claimant has submitted abundant and sufficient qualitative documentary evidence in proof of his claims and the reliefs sought.

Counsel argued that the entirety of the facts and circumstances relied upon by the Claimant in his Statement of Facts and written deposition on oath have been admitted by the Defendants. As the point of divergence between the Claimant and the Defendants, which this Honourable Court is called upon to resolve is as to the proper placement of aholder of the degree of Doctor of Veterinary Medicine in both the non- academic and academic cadre of the Defendants and the allowances he is entitled to.

21. Counsel posited that an analyses of the documents relied upon by the Claimant, the existence of which have not been denied by the Defendants will reveal that the proper entry point Grade Level and Salary Scale of a holder of the degree of Doctor of Veterinary Medicine (DVM) as Veterinary Officer with the Defendants is Grade Level 12 or CONMESS 02 or CONTISS 10.

22. Counsel argued that there appears to be a conflict between paragraph 2.26.6 of the Conditions of Service of Senior Staff and the content of the Schemes of Service of senior Staff of the Defendants, particularly at the Teaching Staff Cadre where it is stated that a candidate possessing DVM or Master’s Degree in the relevant field plus evidence of discharge certificate from NYSC is to be employed as Assistant Lecturer on CONUASS 02. While the Claimant insists that his placement and Salary Scale ought to be as stipulated in section 2.26.3 of the Conditions of Service, the Defendants prefers and insist on the stipulation in the Scheme of Service. Counsel submitted that the law is trite that where a document conflicts or contradicts itself, the conflict shall be resolved by reference to other documents related to, or relevant to the subject matter of the conflict.ABUBIKE V DIAMOND BANK PLC (2014)3 NWLR (PT.1393)116; HOPE UZODIMA V IZUNASO (2011)17 NWLR (PT.1275) 30 (2011) LPELR-20027, 25; LIJADU V LIJADU (1991)1 NWLR (PT.169)627 AT 649; AKUJOBI V EKENAN & ORS (1998) LPELR-6456.

23. Counsel again submitted that where there is conflict indocumentary evidence before a court, oral evidence becomes necessary to reconcile the conflict as the court is not allowed to prefer one document to another. Howbeit, where there is legal documentary evidence which can tilt the contradictory evidence one way or another, the court will rely on same in resolving the contradiction in place of calling oral evidence.NAMMAGI v AKOTE (2021)3 NWLR (pt. 1762)170.

24. Learned Counsel submitted that the Claimant has supplied sufficient documentary evidence to tilt the scale ofjustice in favour of his claims before the court, particularly on the conflict/contradiction in Conditions and Schemes of service of senior Staff in the Federal University Dutsin-Ma Katsina. DAREGO v A.G. LEVENTIS (NIGERIA) LTD & 3ORS (2015) LER/CA/L/481/2011.

25. Counsel argued that the Defendants in their joint Statement of Defence, the Defendants failed to disclose any convincing reason as to why they have failed, refused or neglected to pay theseallowances to the Claimant. The Claimant produced in evidence abundant documentary evidence to prove his rendering of Professional Veterinary Health Services at the Veterinary Clinic of the Defendants on call and generatingrevenue for the University and Teaching Health Professionals. He was accordingly entitled to the allowances as specified in the annexes to the circular and specifically disclosed by the Claimant in Tables B, C, D and E at paragraph 42 of the Amended Statement of Facts. The facts constituting these claims and the figures supplied by the Claimant have not been categorically denied or challenged by the Defendants in their defense. Counsel submitted that the law is trite that facts which are not challenged or debunked are deemed admitted and need no further proof. JULIUS BERGER (NIG) PLC V OGUNDEIIIN DOLAPO (2013) ALLFWLR (PT. 676) 491; SMAB INTER-TRADE LTD V BUKAR (2013) ALLFWLR (PT. 693) 2019.

DEFENDANTS’ FINAL SUBMISSIONS

ISSUES FOR DETERMINATION

The Defendantsin addressing the Court raised four issues for determination, they are;

1. Whether or not the Suit of the Claimant is statute barred?

2. Whether or not the Claimant has exhausted all the internal dispute resolution of the Defendant?

3. Whether or not the Claimant is estopped from bringing this action?

4. Whether or not the Claimant is entitled to the reliefs sought?

26. Learned Counsel to the Defendants argued issues a, b and c together, because the three issues bothered on the jurisdiction of the Court to entertain this matter.

Counsel stated that from the action of the Claimant, his complaint can be categorized as follows:

i. Purported improper placement at the time he was employed in 2013.

ii. Purported improper placement when he was converted to an academic staff.

iii. Purported improper placement when he completed his Masters degree and presented same to the 1st Defendant in 2017.

27. Counsel argued that out of the three complaints above, the Claimant never felt aggrieved until when he was promoted to the rank of Lecturer II in 2018, then he wrote an appeal to the 1st Defendant. And the Claimant refused to exhaust the internal mechanism to resolve the dispute before resorting to litigation.

It is Counsel’s submission that the Claimant did not exhaust the internal dispute resolution mechanism of the 1st Defendant before approaching this court. And having not exhausted it, the court has no jurisdiction to entertain this action. This is because the condition precedent for this court to assume jurisdiction is yet to be fulfilled.

28. Counsel contended that the Claimant is duty bound to abide by the clear provisions of Article 7 of the Senior Staff Reviewed Condition of Service 2017 Article 7.12.1. And by the provision of Section 14 of the Act establishing the 1^st Defendant, it is provided that any unresolved dispute is to be referred to the Visitor of the University whose decision is final on such dispute, except- reversed by a court of law. Counsel submitted that the law is that, where a particular statute has prescribed a particular remedy, an aggrieved party must exhaust the remedy provided and the jurisdiction of the courts to grant declaration is generally ousted. The Claimant having not exhausted the internal remedies available to him, this court cannotgive him a hearing ear.OWOSENI V. FALOYE & ANOR (2005) LPELR-2856(SC); DANIEL V. ADAMAWA STATE UNIVERSITY, MUBI (2017) LPELR-43625(CA); ANYANWU V. UNIJOS (2014) LPELR-22556(CA).

29. Counsel argued that the Claimant erroneously claimed that the use of the word ‘May’ in Section 14 of the Federal University Dutsin-Ma (Establishment) Act, connotes permissibility rather than compulsion. Counsel submitted that the interpretation is wrong, because in the circumstances, the Claimant had the power to refer the matter to the Visitor of the University which he did not.Counsel cited the case of BAKARE v. AG OF THE FEDERATION & ORS (1990) LPELR-707(SC), where the Supreme Court in constructing the word ‘may’ said:

“It is true as stated at pages 227 Volume 3 of “Words and Phrases Legally Defined’ to which Mr. Shonibare drew our attention, that the word ‘may’ always means May. ‘May’ is a permissive or enabling expression but there are cases in which for various reasons, as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it.” Also as pointed out in Halsbury’s Laws of England 3rd Edition Volume 433 “the use of the word ‘may’ prima facie conveys that the authority which has the power to do such act has an option either to do it or not to do it.” Per EPHRAIM OMOROSE IBUKUN AKPA TA, JSC (Pp. 47-48 Paras F - A)”.

30. Counsel submitted that the ‘may’ used in the provision when married together with the ‘shall’ used in Article 7.12.1 of the Senior Staff Reviewed Condition of Service 2017, connotes a mandatory duty on any staff or authority who is not satisfied with any decision taken by the 3rd Defendant to refer same to the Visitor. Thereforethe Claimant having not referred his grievances to the visitor, he is yet to exhaust the internal mechanism of dispute resolution of the 1st Defendant, hence the court has no jurisdiction to entertain this action.

31. Counsel assuming (without conceding) that the Claimant has exhausted the internal dispute resolution mechanism of the University, stated that the court would still not have the vires to entertain this action.Because all the three purported grievances of the Claimant occurred more than three months from the time when this suit was commenced. Thelast of the purported grievance of the Claimant, occurred on 23^rdOctober, 2019. However, this action was commenced in February, 2021. He submitted that by the provisions of Section 2 (a) of the Public Officers Protection Act, the action of the Claimant is statute barred, because he is out of time to file same.

32. Counsel submitted that the Defendants in this suit falls within the categories of persons protected by the provision of Section 2 (a) of the Public Officers (Protection) Act. And any action or proceeding against the Defendants shall not lie or instituted unless it is commenced within three months next, after the act complained of. A.G RIVERS V. A.G BAYELSA STATE (2013) 3 NWLR (PT. 1340) P. 123 @135-136; UNIJOS V. IKEGWUOHA (2013) 9 NWLR (PT. 1360) P.478 © 481-482.

Counsel again submitted that where an action is statute barred, the Claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the law for institution of such action has elapsed. IDACHABA & ORS v. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081(SC).

33. Counsel further argued that by the doctrine of estoppel, the Claimant cannot be heard to complain that he was not properly placed when he was employed in 2013. This is because he accepted the employment willingly on that Level and continued to enjoy the benefits associated with the level on which he was employed.The 1st Defendant is owned by government as such it pays salaries and allowances within the limited money appropriated to it by the National Assembly. As such, therefore, over the years, the National Assembly has been appropriating money to the 1st Defendant for it to pay the Claimant’s salary based on the terms and conditions the Claimant and the 1st Defendant agreed to since 2013.NWOG V. SCOA (NIG) LTD (2018) LPELR-49785(CA), LAWAL VS. UBN PLC. (1995) LPELR – 1762 (SC) 35, A.G. RIVERS VS A.G. AKWA IBOM & ANOR NSCQR VOL. 45 (2011) 1041.

34. Counsel finally submitted that based on the argument canvassed above, this Court Lacks the jurisdiction to entertain this matter because;

i. The Claimant has not exhausted the internal mechanism of dispute resolution in the University;

ii. The action of the Claimant is statute barred because the action was filed more than three months from the occurrence of the purported cause of action and the time the suit was filed;

iii. The Claimant having accepted the terms of employment and benefitted from it; he is estopped from approaching this court to complain about the terms therein.

35. On Issue Four (4) Counsel submitted it is trite law that he who assert must prove. Section 131, 132 and 133 of the Evidence Act, 2011. This doctrine is more so in an action for declaratory relief like this one. It is the Law that a party in action for declaratory relief must succeed on the strength of his evidence not on the weakness of the Defense. ANDREW & ANOR V. INEC & ORS (2017) LPELR-48518(SC).

36. Counsel argued that the Claimant was employed in 2013, and reliefs 1 — 5 and 7-9 are all associated with his Letter of employment of 2013 aswell as that of his conversion in the same year. However, the document the Claimant placed before this court on which he based his claim is Regulations governing the Condition of Service andScheme of Service of Senior Staff, revised August, 2017. It is Counsel’s submission that for the Claimant to succeed, he must prove to the court that the content of the condition ofservice revised in 2017 is same with the one as at the time of his employment and conversion in 2013.

37. Counsel submitted that the service in the 1st Defendant, is not service in the Civil Service of the Federal Republic of Nigeria. Those employed in the 1st Defendant are employed in the Public Service of the Federal Republic of Nigeria. Section 318 of the Constitution of the Federal Republic of Nigeria1999(as amended)(1999 constitution). As service in the 1st Defendant is governed by the Act establishing the1st Defendant as well as rules and regulations formulated by the 1st Defendant.The employment into the service of the 1st Defendant is governed by the scheme of service ofthe 1st Defendant. And it is based on its content that the Claimant was employed and subsequently converted in 2013.

38. Counsel submitted that there is no conflict as claimed by the Claimant. And even if there is such conflict, the avenue for addressing such conflict is first by referring such conflict to the internal mechanism of resolving dispute of the 1st Defendant. Also all the documents pleaded by the Claimant are not binding on the 1st Defendant. As there is no evidence placedbefore this Court by the Claimant to show that the 1st Defendant is answerable to National Universities Commission (NUC) and theMinister of Agriculture in the way and manner it employs its staff.

39. Counsel submitted that the Claimant had also not led any evidence to show that he has been deployed to render any health-related services in the 1st Defendant or indicating that the Claimant is engaged in teaching other health professionals. The Defendant rightly informed the Claimant via its Letter to him that it doesn’t have a Veterinary Teaching Hospital where the qualificationthe Claimant possess can be fully utilized (nemodat quod non habet).

Court’s Decision

40. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issues for determination in this suit are the issues as formulated by the defendants which to my mind encompassed those of the Claimant and as such shall be the issues for determination in this suit

a. Whether or not the Suit of the Claimant is statute barred?

b. Whether or not the Claimant has exhausted all the internal dispute resolution of the Defendant?

c. Whether or not the Claimant is estopped from bringing this action?

d. Whether or not the Claimant is entitled to the reliefs sought?

41. In National Revenue Mobilization Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors [2019] 2 NWLR (Pt. 1656) 247, His Lordship Ariwoola, JSC at 271 sounded the death knell on the applicability of the Public Officers Protection law to contracts of service. In his words:

I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred.

In sum I hold that the learned justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents…

See SUIT NO. NICN/ABJ/148/2018MR IGBINOSUN FRIDAY ESE VS, AUCHI POLYTECHNIC AUCHI April 11, 2019

42. The argument as to statute-barred shall accordingly be discountenanced for purposes of this judgment. This aside, the defendant may wish to note that National Revenue Mobilization, Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors [2019] 2 NWLR (Pt. 1656) 247 at 270 - 271 has only recently held that the LIMITATION LAW DOES NOT APPLY TO CONTRACTS OF SERVICE.SEE SUIT NO. NICN/LA/164/2014 MRS.ADEBOLA OGUNSANWO VS.POLARIS BANK LIMITED July 9, 2019

43. The defendant did not show this Court how and where the visitor or recalls to the visitor comes within the claimant’s condition of service to be a condition precedence for the claimant’s redress, especially as there is no sanction provided.

44. No ingredient for estopel presented

45. Claimant’s reliefs:

10. AN ODER COMPELLING the Defendants to upgrade the Claimant to the Rank of Lecturer I on CONUASS 04/02 from the date of the Claimant’s acquisition and presentation of his M.Sc. Degree to the Defendants up to the date of the Claimant’s next promotion and thenceforth, with the consequential annual increment.

11. AN ORDER COMPELLING the Defendants to pay to the Claimant the cumulative sum of N11,018,3 16.06 (Eleven Million Eighteen Thousand Three Hundred and Sixteen Naira Six Kobo) only being the total salary shortfall and unpaid allowances of the Claimant as particularized in Tables A, B, C, D and E at paragraphs 36 — 39 of the Statement of Facts.

12. 10% INTEREST PER ANNUM on the total judgment sum from the date of judgment until final liquidation.

13. GENERAL AND EXEMPLARY DAMAGES OF N50, 000,000.00 (Fifty Million Naira) only against the Defendants jointly and severally for violating the Claimant’s rights as an employee of the University, emotional and psychological trauma.

46. Seven of the Claimants reliefs are for Declaratory orders, the position of the law as per

Declaratory is as found in the following case law positions;

In ALAO V. AKANO (2005) 11 NWLR (PT.935)160 it was held that ''A plaintiff who seeks a declaratory relief must show that he has an interest or right which forms the foundation for that right. The plaintiff must establish a right in relation to Also in EKANEM V. A.I.G.P. (2008) 5 NWLR (PT. 1079) 97 AT P. 111, PARA. C it was held that "A declaratory order of court simply proclaims the existence of an event or a legal situation. It may contain a specific order to be carried out and it may not necessarily direct the carrying out of the order. [AKUNNIA V. A.-G., ANAMBRA STATE (1977) 5 SC 161; FEDERAL MINISTRY OF INTERNAL AFFAIRS V. DARMAN (1982) 3 NCLR 915.]" Per Omage, JCA which the declaration can be made.'' Per MUSDAPHER, J.S.C (P. 11, paras. B-C). "A declaratory relief is one that seeks the pronouncement of the court as to the status of a named matter, thing or situation. See: NWAGU V. FADIPE(2012) LPELR-7966(CA)ENEKWE VS I.M.B. (NIG.) LTD. (2007) ALL FWLR (349) 1053 AT 1073 H; ALIMS NIG. LTD V. U.B.A. PLC (2007) ALL FWLR (348) 971 AT 981. It is a discretionary relief." Per Kekere-Ekun, J.C.A (P. 16, paras. F-G).

AGBAJE V. FASHOLA (2008) 6 NWLR (PT. 1082) "It is trite that in cases where declaratory reliefs are claimed as in the present case, and notwithstanding the fact that the defendant/or respondent did not call evidence to challenge the appellants evidence that failure of the respondent would not relieve the said appellant from satisfying the tribunal by cogent and reliable proof or evidence in support of his claim or petition.

47. The Claimant presented 33 documents including his Letter of Employment clearly stating that the Claimants employments was governed by the University Laws and Statutes, Contract of Service, Regulations made by the Governing Board, all regulations as contained in the Public Service /rules, Government Circulars, I find. The Claimant tendered two Schemes of Service for the years 2003 and 2017

48. The Defendant argue that the 2003 Scheme of service was not operational when the claimant was employed but the Defendants themselves did not themselves tender any scheme of service as being the one in place when the Claimant was employed. Even the two tendered by the Claimant I find are tantamount to dumped document. The law is that there has to be the necessary nexus between documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same. See ACN V. NYAKO [2013] ALL FWLR (PT. 686) 424 SC, BUHARI V. INEC [2008] 12 SC 1 and HON. SEGUN ADELE & ANOR V. HON. SOLOMON OLAMILEKAN ADEOLA & ORS [2015] LPELR-25972(CA). This requirement of nexus is extended under the law to mean that a party who produces an exhibit so that the Court could utilize it in the process of adjudication must not dump it on the Court but must tie it to the relevant aspects of his case. See IVIENAGBOR V. BAZUAYE [1999] 9 NWLR (PT. 620) 552; [1999] 6 SCNJ 235 AT 243, OWE V. OSHINBANJO [1965] 1 ALL NLR 72 AT 15, BORNU HOLDING CO. LTD V. ALHAJI HASSAN BOGOCO [1971] 1 ALL NLR 324 AT 333, ALHAJI ONIBUDO & ORS V. ALHAJI AKIBU & ORS [1982] 7 SC 60 AT 62, NWAGA V. REGISTERED TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 AT 1380 – 1381, JALINGO V. NYANE [1992] 3 NWLR (PT. 231) 538, UGOCHUKWU V. CO-OPERATIVE BANK [1996] 7 SCNJ 22, OBASI BROTHERS LTD V. MBA SECURITIES LTD [2005] 2 SC (PT. 1) 51 AT 68, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 AT 211, ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, UCHA V. ELECHI [2012] 13 NWLR (PT. 1316) 330 AT 360, BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 AT 99 – 100, OMISORE V. AREGBESOLA [2015] 15 NWLR (PT. 1482) 202 AT 323 AND 324, MR. MOHAMMED DUNGUS & ORS V. ENL CONSORTIUM LTD [2015] 60 NLLR (PT. 208) 39 and ADEMOLA BOLARINDE V. APM TERMINALS APAPA LIMITED UNREPORTED SUIT NO. NICN/LA/268/2012 the judgment of which was delivered on 25th February 2016.

49. Review of the Claimant’s documents reveal that non-create a legal status he is seeking as from 2013 when he was employed or even now, reliefs 1-7 therefore fail.

With regards to reliefs 8-10 which all relate to earnings the Claimant would have earned had he been properly placed. I find that the claimant cannot succeed in this either in that Courts are reluctant to interfere with the [placement of employees preferring to leave such matters within the hands of the employers.ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] 14 NWLR (PT. 1000) 610. Accordingly, it will be invidious for the Court to foist on an employer a person who should occupy a particular position. See SHELL PET. DEV. CO. V. NWAKA [2001] 10 NWLR (PT. 720) 64. The only exception is where the denial of promotion is vindictive, mala fide, and so qualifies as unfair labour practice. See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103) 40 NIC.

Which is not the case here.

50. Furthermore, the Claimant is guilty of condoning by accepting his appointment letter without protesting the terms of it. From the foregoing I find and hold that the defendant varied the contract in Exhibit C12 by removing the clause “…if the agreement between the Senior Staff Association of Nigerian Universities and the Federal Government on review of Retirement Age of Non-Teaching staff in Nigerian Universities to 65 years is signed into law before the end of this contract appointment, your appointment will be reverted to tenure appointment….”. but that the claimant accepted the change evidence by his non protest continued to work under the condition and even asked for a renewal which when it came with the same terms and still the claimant made no protest. All in all, the claimant accepted and condoned the variations of the contract made by the defendant. I find and hold. NIGERIAN ARMY Vs. AMINUN-KANU [2010] SC I. T. Mohammed defined condonation as “a victims express or especially implied, forgiveness of an offence by treating the offender as if three had been no offence(pp. 28-29, para A-C).In this case the claimant worked happily with the defendants all those years till 2017 and as such the court considered this as a period where the Claimant agreed to work infer the conditions given to him and he cannotbe allowed to complain now having condoned the said conditions of the CONTISS. SUIT NO: NICN/IB/88/2013 DR. OLADELE OSOSANYA vs.GOVERNING COUNCIL OF FEDERAL UNIVERSITYOF AGRICULTURE, ABEOKUTA& 3ORS DATED: 13^th NOVEMBER, 2014

51. The claimant described the defendants position that Candidates with doctorate degrees were placed on lecture 1 as a blatant lie but failed to support his own position with any evidence the court can rely on. The position of the law is that where certain paragraphs in the statement of fact were not denied. These facts were thereby admitted and require no further proof. The law requires that pleadings be specifically traversed. A general traverse would not do.

52. Courts have variously held that a traverse that the “1^st defendant denies paragraph 20 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein” does not amount to a denial for the purpose of raising an issue for trial. See LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 All NLR (Pt. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (Pt. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (Pt. 221) 1 and LSDPC V. BANIRE [1992] 5 NWLR (Pt. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient decial and have been held to amount to admission. See DIKWA V. MODU [1993] 3 NWLR (Pt. 280) 170 and SANUSI V. MAKINDE [1994] 5 NWLR (Pt. 343) 214. Further still, an averment in a statement of defence that the defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 AND IDAAYOR V TIGIDAM [1995] 7 NWLR (Pt. 377) 359. SUIT NO. NICN/LA/651/2013 MR. JEZREEL ELO MAYOR VS. ECO EXIM ALLIED LIMITED & ANOR delivered October 29, 2014. Given these authorities, and considering that in this instant case the claimant had pleaded in paragraph 20 that the Veterinary clinic had been established and set up and that the went on to present internal memos to the effect of both occasions dated 14/8/22015 and 16/10/2015 and for the defendants to state in the paragraph 13 of their statement of defence that they deny paragraphs 20 and 21 (among other listed paragraphs )and go on to argue that the claimant would only be entitled to COMMESS when the defendants establish a Veterinary Faculty or Veterinary Teaching University. I find and hold that there is no specific denial on the part of the defendant that a veterinary clinic was established and that the claimant’s rendered call duty services to the said clinic to the tune of N4, 898, 560.00. This being the case, I also find and hold that the claimant has proved his claim for N4, 898, 560.00 being money due to him as call duty allowance for the period 1/10/2015 to 30/9/2020 The claimant is accordingly entitled to the N4, 898, 560.00 claimed as call duty allowance computed at 40 units per month for the said period.

53. Also, the position of the law is that where certain paragraphs in the statement of fact were not denied. These facts were thereby admitted and require no further proof. The law requires that pleadings be specifically traversed. A general traverse would not do.

Courts have variously held that a traverse that i.e. “1^st defendant denies paragraph 20 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein” does not amount to a denial for the purpose of raising an issue for trial. See LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 All NLR (Pt. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (Pt. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (Pt. 221) 1 and LSDPC V. BANIRE [1992] 5 NWLR (Pt. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. See DIKWA V. MODU [1993] 3 NWLR (Pt. 280) 170 and SANUSI V. MAKINDE [1994] 5 NWLR (Pt. 343) 214. Further still, an averment in a statement of defence that the defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 AND IDAAYOR V TIGIDAM [1995] 7 NWLR (Pt. 377) 359. SUIT NO. NICN/LA/651/2013 MR. JEZREEL ELO MAYOR VS. ECO EXIM ALLIED LIMITED & ANOR delivered October 29, 2014. Given these authorities, and considering that in this instant case the claimant had pleaded in paragraph 20 that the Veterinary clinic had been established and set up and that the went on to present internal memos to the effect of both occasions dated 14/8/22015 and 16/10/2015 and for the defendants to state in this paragraph 13 of their statement of defence that they deny paragraphs 20 and 21 (among other listed paragraphs )and go on to argue that the Claimant would only be entitled to COMMESS when the defendants establish a Veterinary Faculty or Veterinary Teaching University. I find and hold that there is no specific denial on the part of the defendant that a veterinary clinic was established and that the claimant’s rendered call duty services to the said clinic to the tune of N4, 898, 560.00. This being the case, I also find and hold that the claimant has proved his claim for N4, 898, 560.00 being money due to him as call duty allowance for the period 1/10/2015 to 30/9/2020 The claimant is accordingly entitled to the N4, 898, 560.00 claimed as call duty allowance computed at 40 units per month for the said period.

54. Having determined that the Claimant accepted the offer of the defendants in Exhibits C12 and Exhibit C24, this court cannot enforce the term in favour of the claimant as is being sought in this suit due to the fact that the Claimant acted on the contract contained in Exhibit C12 by accepting it without protest, and accepting the renewed contract on the same terms as the obtain in C12, therefore this court cannot grant reliefs 9 and 4, these reliefs consequently fail and are hereby dismissed.

55. This is the Court’s judgement and it is hereby entered accordingly.

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HON. JUSTICE E. N. AGBAKOBA

JUDGE COURT 3, ABUJA