IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS
DATE: 25TH AUGUST, 2022 SUIT NO: NICN/IB/17/2020
Dr.Engr. Henry Ogbemudia Omoregbee- - - - Claimant
1. The Federal Polytechnic, Ilaro
2. The Governing Council of the Federal Polytechnic, Ilaro - Defendants
Olusola Olorunfemi for the Claimant.
Adetunji Fadairo, SAN with Idris Olajide for the 2nd Defendant.
1. Introduction & Claims
1. The Claimant approached this Court by his General Form of Complaint, statement of facts together with witness deposition, list of witness, list and copies of the documents to be relied on at trial dated and filed 19/2/2020 and by his amended processes filed on 15/12/2020 sought the following reliefs against the Defendants jointly and severally –
1. A Declaration that in view of the continuous monthly payment of the Federal Government of Nigeria’s contributory quota of the Claimant’s pension to the Claimant’s pension manager, the Leadway Pension, the employment of the Claimant with the Defendants continues.
2. A Declaration that the termination of the appointment of the Claimant with the Defendants is wrongful.
3. An Order directing the Defendants to reinstate the Claimant as an employee of the Defendants with the Claimant’s full benefit, entitlement and promotion.
4. An Order directing the Defendants to give the Claimant Laptop, core i7 1 terabytes HDD memory Dell Product.
5. A General Damages of =N=5,000,000.00 (Five Million Naira) only to the Claimant for untold hardship, psychological trauma, pains and economic loss that the Claimant has suffered and continued to suffer owing to the wrongful termination of the Claimant’s appointment by the Defendants.
6. Interest on the Judgment sum at the rate of 10% per annum until the Judgment sum is fully paid.
2. The 1st Defendant did not file any defence processes to this suit. However the 2nd Defendant by its amended statement of defence filed on 7/10/21 joined issues with the Claimant and denied liability in any form to the Claimant.
2. Case of the Claimant
3. The case of the Claimant as revealed in his pleadings is that he was employed as an academic staff of the Defendants in 2010; that his appointment was not confirmed after 3 years; that in 2013 he applied for sick leave and was granted 3 weeks; that he later sought an extension of the sick leave but did not receive a reply from the Defendants; that his salary was stopped while on sick leave; that he applied for study leave without pay from the Defendants but was refused; that while on sick leave in South Africa a Query issued to him for absence from duty without permission was responded to by his next of kin; that the Defendants made him to appear before a Medical Board for medical examination but never afforded him a report of the examination; that his appointment was terminated on 5/1/15 and that despite that the Federal Government continued to pay its monthly pension contribution to Claimant’s Pension Fund Administrator.
4. Claimant opened his case on 25/4/22 and testified in chief by adopting his witness deposition of 15/12/2020 and his additional deposition of 5/3/21 as his evidence in chief. Claimant tendered 27 documents in all as exhibits. The documents were admitted in evidence and marked as Exh. HOO1 – Exh. HOO27.
5. Under cross examination on 26/4/22, the Claimant testified that in 2013 he requested the Defendants to give him a reference to the South African Embassy; that he could not remember if it was after that he asked for sick leave; that he was given 3 weeks sick leave; that he did not return after the expiration of the 3 weeks; that he spent about 6 months after; that he is now working at the University of Lagos; that his appointment was not confirmed by the Defendants; that he did not apply for confirmation of his appointment; that he did not do any confirmation examination; that in 2013 he was absent for 6 months; that in 2014 he was absent for about 8 months; that he did apply for study leave but was not approved; that the ASUP strike was from April to July, 2013; that he started his Ph. D program in 2014; that he got the Certificate in 2018 from the University of Pretoria, South Africa; that the program lasted for 4 years; that he was a full time student; that part of his claim was for a Laptop; that he was not there when Laptops were given to some Lecturers; that he appeared before a Committee made up of Medical Doctors; that Leadway Pensure is his Pension Manager; that contributory pension is paid to the Pension Manager; that his elder sister who was his next of kin and his younger sister both studied in South Africa; that the letter of termination of appointment dated 5/1/15 was served on him on 8/1/15; that he obtained his Ph. D in September, 2018 and that he did not make his passionate appeal until he obtained his Ph. D.
3. Case of the 2nd Defendant
6. The case of the 2nd Defendant is that the Claimant was its employee but on probation until his appointment was terminated; that the Claimant asked for a letter of introduction to South African Embassy and was given; that the Claimant asked for study leave but was refused; that Claimant asked for sick leave and was granted 3 weeks; that he asked for extension of the sick leave but was not granted; that the Claimant deliberately left his duty unattended without leave; that Claimant was away for study on a full time Doctorate Degree which took him 4 years without leave; that Claimant’s appointment was not confirmed because he did not request for confirmation of same; that he was queried for dereliction of duty and did not respond to same; that his appointment was terminated for dereliction of duty; that he is now working with the University of Lagos and that the 2nd Defendant is not owing the Claimant any money.
7. On 11/5/22, the 2nd Defendant called as its lone witness one Badiru Jimoh Odetunde who adopted his deposition of 7/10/21 as his evidence in chief and tendered 9 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1 – Exh. D9.
8. In response to questions under cross examination, DW1 testified that he had the authority of the Defendants to depose to his oath; that 1st Defendant is an institution of higher learning in Nigeria; that he knows Engr. Dada who is still in the service of the Defendants; that the Claimant has received the sums stated in Exh. D9 in the past as salary; that Claimant’s salary increased from what was stated in Exh. HOO1 to that of Exh. D9; that the increase was due to annual salary increment; that the Defendants have a copy of the Staff Manual in the Registry; that Staff Manual & Regulations are not uniform in all Federal Polytechnics across the country; that there is Annual Performance Evaluation in the Defendants for academic staff; that there is a procedure for confirmation and promotion of staff at the Defendants; that an academic staff is due for confirmation of appointment after 3 years subject to satisfactory performance; that promotion is after 3 years subject to satisfactory performance; that promotion of academic staff is not subject to annual performance evaluation alone but they must also publish and that the APER Form contains a column for published papers of academic staff.
9. The witness further testified that the Claimant appeared before the Medical Board of the 2nd Defendant; that the 2nd Defendant did not avail the Claimant the Report of the Medical Board; that the Defendants made enquiry at the University of Lagos about the Claimant while the case was pending; that enquiry was not made from the Claimant first before approaching the University of Lagos; that the approach was not adopted in order to destroy the career of the Claimant at the University of Lagos; that the Defendants did not receive any letter or plea for reinstatement from the Claimant and that the employment of the Claimant was not wrongfully terminated by the Defendants.
4. Final Written Addresses
10. At the conclusion of trial and pursuant to the direction of the Court the 2nd Defendant filed its final written address on 25/5/22. In it 2nd Defendant set out 2 main issues for determination thus –
1. Whether this Honourable Court has jurisdiction to try this case having been brought out of time.
2. Whether the complainant’s case is meritorious and should succeed on his own showing.
11. On issue 1, learned Counsel submitted that the case of the Claimant is that his appointment with the 2nd Defendant was terminated on 5/1/15 but the action was filed on 15/12/2020 clearly 5 years after the alleged termination of appointment; that the suit is incompetent having been filed out of time citing Section 2(a), Public Officers Protection Act which mandated such a suit to be brought within 3 months next after the occurring of the cause of action; that the 2nd Defendant being a public officer and having not been caught by the exceptions to the general rule can raise the defence afforded by the Act. Counsel urged the Court to strike out the suit for want of jurisdiction.
12. On issue 2, learned senior Counsel submitted that the Claimant admitted under cross examination that his appointment with the 2nd Defendant was on probation, that he did not apply for the confirmation of his appointment; that he applied for study leave but was not granted; that he left his duty unattended to pursue his full time four years Doctorate Degree in South Africa without leave; that he was issued a Query which he did not answer; that his appointment was terminated on the ground of dereliction of duty; that the 2nd Defendant is not owing him any money and that he now works with the University of Lagos. Learned senior Counsel submitted that these are admissions against interest citing Section 133(1), Evidence Act, 2011; that the evaluation of the defence does not arise unless and until the Claimant has established a prima facie case citing Aromire v. Awoyemi (1971)2 S.C 1 at 11; that admissions in civil cases by a party are evidence of facts asserted against but not in favor of such party and that the Claimant having made such damning admissions against his case as asserted, his claims must fail; that the Court should find on same citing Section 24, Evidence Act, 2011 & Archibong v. Ita (2004)17 NSCQR 295 at 323. Learned senior Counsel urged the Court to resolve this issue in favour of the 2nd Defendant and against the Claimant and dismiss the case of the Claimant.
13. On 14/6/22, the Claimant filed a 16-page final written address dated 10/6/22. In it Counsel set down a lone issue for determination thus –
Whether on the facts, evidence and law, the Claimant is entitled to the reliefs sought in this case.
14. Arguing this lone issue, learned Counsel submitted that the burden of proof in civil cases lies on the Claimant who must give credible evidence worthy of belief citing Agbi v. Audu (2006)11 NWLR (Pt. 990) 65 at 116; that employment relationship may be purely Master/Servant, servants who hold their office at the pleasure of the employer or employments with statutory flavor; that employment with statutory flavor is one in which the terms or tenure of the employment is protected either by statute or regulation citing College of Education Ekiadolor v.Mrs. Osayande (2010)6 NWLR (Pt. 1191) 423 at 451; that from the facts and evidence on record the appointment of the Claimant with the Defendants enjoys statutory flavor and that the Court should so hold. Counsel further submitted that the Federal Government of Nigeria has continued to pay its contributory quota of the Claimant’s pension to the Claimant’s Pension Manager even after the alleged termination of Claimant’s appointment; that Claimant is entitled to reinstatement; that the Claimant sought and obtained extension of the sick leave; that he could not return to the school within the period of extension granted by the Defendants owing to the condition of his health and not as a result of dereliction of duty; that the Query issued to him was answered by his next of kin and that since it is on record that the Claimant has secured another employment while this case is pending, the justice of this case demands that his entitlements between the time that his appointment was terminated and the time of his reinstatement by the Court should be given to him including Laptop core i7 in line with relief iv.
15. Respecting challenge of the 2nd Defendant to the jurisdiction of the Court Counsel submitted that this Court has jurisdiction; that a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates citing INEC v. Onowakpolo (2018)2 NWLR (Pt. 1602) 134 at 167; that a party will not be allowed to take advantage of Limitation Law where there is a clear evidence of disability, mistake, fraud and in certain cases involving personal injury or death citing Mulima v. Usman (2014)16 NWLR (Pt. 1432) 160 at 207. Counsel referred to paragraph 39(i)(ii) & (iii) of the Amended Statement of Facts and paragraph 39 (i)(ii) & (iii) of the written statement on oath dated 15/12/2020 and filed on 15/12/2020. Learned Counsel finally submitted that the Claimant has proved his case and is entitled to the reliefs sought and that the case is not caught by the statute of limitation. Counsel urged the Court to find in favor of the Claimants.
16. I have a clear understanding of all the issues canvassed by the parties in this case. I read all the processes filed as well as heard the oral testimonies of the witnesses called at trial and watched their demeanor. I carefully reviewed and evaluated all the exhibits tendered and admitted. Having done all this, I narrow the issues for the just determination of this case to the following –
1. Whether this Honourable Court has jurisdiction to try this case having been brought out of time.
2. Whether on the facts, evidence and law, the Claimant is entitled to the reliefs sought in this case.
17. The first issue set down for determination is a challenge to the jurisdiction of this Court to hear and determine this case. The point was made, and rightly too, by the learned senior Counsel for the 2nd Defendant that although the cause of action in this case arose on 5/1/15 when Claimant’s appointment with the 2nd Defendant was terminated this action was nonetheless filed on 15/12/2020 clearly 5 years after the alleged termination of appointment; that the suit is incompetent having been filed out of time citing Section 2(a), Public Officers Protection Act which mandated such a suit to be brought within 3 months next after the occurring of the cause of action. It was the submission of the learned senior Counsel that the jurisdiction of this Court is denied the action not having been brought within the time limit allowed.
18. The main aim of a statute of limitation is to extinguish any right of action when not brought within the time allowed by the statute. The limitation legislation is not denying the existence of the right of action. It only states that the right can no longer be exercised and enjoyed outside of the time permitted. Even within the limitation laws, certain exceptions are allowed. Added to all this is the fact the apex Court of the land has also added yet another scenario when limitation law would not apply to prevent institution of action. Thus in Ajibola Johnson & Ors v. Revenue Mobilization, Allocation & Fiscal Commission & Ors the Supreme Court per Ariwoola JSC (as he then was) now CJN decided that limitation law would not apply to oust the enjoyment of employment related rights. It is not contested that the relationship between the parties in this case is one of employer/employee. The cause of action arose out of termination of the employment of the Claimant and the reliefs sought are with respect to the employment of the Claimant. It is apparent that the first issue set down for determination will be resolved in favor of the Claimant and against the 2nd Defendant. I thus hold that this Court has jurisdiction to hear and determine this case same not having been ousted by the Public Officers Protection Act as canvassed.
19. The second issue for determination is whether on the facts, evidence and law, the Claimant is entitled to the reliefs sought in this case. The nature of our inherited adjudicatory system is that it is he who asserts that has the burden of proof. In order words, the Claimant in all cases, safe where there is admission by the Defendant, has the burden of proof. Thus a Defendant may elect not to put forward any defence until the burden of proof shifts. The first 2 reliefs sought by the Claimant are declaratory. It is trite that declaratory reliefs are proved on the evidence of the Claimant, not on the weakness of the defence case or even on admission by the defence.
20. The law is that a Claimant seeking declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. The decisions in Okereke v. Umahi & ors  LPELR-40035(SC), Nyesom v. Peterside & ors  LPELR-40036(SC) and Mrs Catherine Udeogu & 11 Ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16 February 2018 are of relevance here. B. B. Kanyip, PJ the Hon the President of this Court in The Shell Petroleum Development Company of Nigeria Limited-Claimant v. The Minister of Petroleum Resources & Ors. (Unreported) Suit No. NICN/Abj/178/2022 Judgment of which was delivered on 28/7/22 relying on Dmez Nig Ltd v. Nwakhaba & 3 ors  2 SC (Pt. III) 142 at 152 paras 10 to 25, Bello v. Eweka  1 SC 101 and Motunwase v. Sorungbe  12 SC 1, insisted that the Claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the Defendant.
21. Now is the Claimant, on the facts and evidence led, entitled to the reliefs sought? The first 2 reliefs sought which are declaratory in nature are 1. A Declaration that in view of the continuous monthly payment of the Federal Government of Nigeria’s contributory quota of the Claimant’s pension to the Claimant’s pension manager, the Leadway Pension, the employment of the Claimant with the Defendants continues and 2. A Declaration that the termination of the appointment of the Claimant with the Defendants is wrongful. The second is critical to the determination of the first. For, the Claimant must first of all prove that the termination of his employment is wrongful to be entitled to a declaration on the implication of the continuation of his appointment with the Defendant. To be entitled to the second declaration, the Claimant must assert who has the power to determine his employment, the established procedure to follow for determining same and the failure of the Defendant to comply with the established procedure. Besides, the Claimant is also expected to lay out the terms and conditions of engagement as applicable to the parties and again bring to the fore the failure of the Defendant to comply with the terms and conditions especially as relate to determination of his employment.
22. The case as made out by the Claimant is far from meeting any of the criteria for a declaration to be made in his favor as sought. In paragraph 2.22 page 9 of his final written address, learned Counsel to the Claimant had submitted thus –
“From the facts and evidence before this Honourable Court, we submit that the appointment of the Claimant with the Defendants enjoys statutory flavor. We urge this Honourable Court to so hold”.
23. Unfortunately, the statute allegedly regulating the appointment of the Claimant or the regulation made under such legislation protecting his employment was not brought to the attention of the Court. Nothing of such was pleaded by the Claimant and neither was any cited by Counsel. The question thus arises as to how and what qualifies the appointment of the Claimant as one with statutory flavor? The bottom line is that the declaration sought which, if granted, would have been the basis for considering all other reliefs is not proved. It is possible that the Defendants or the 2nd Defendant is a creation of the statute. It may also be that the statute creating the 2nd Defendant made specific reference to the protection of the employment of the Claimant. However it must never be assumed that the Court will go out in search of that statute and fish out the appropriate or relevant sections which offer protection to the appointment of the Claimant. To do so would amount to the Court doing advocacy rather than adjudication. The duty of the Court is adjudication while that of the Counsel is advocacy. Accordingly I find and hold that the declaratory relief sought is not proved.
24. Still on the second issue for determination, aside from the point already noted, can it be said that the Claimant is entitled to the reliefs sought or any of them? The appointment of the Claimant with the Defendants is a full time one as an academic staff of the institution. It is safe to state that by now judicial notice is taken of the role and duties of academic staff of any academic institution worldwide. Thus as an academic staff the Claimant was expected to teach and mentor students as well as conduct research. He was also expected to provide some guidance and leadership to the students under him. By this it implies that the Claimant was expected to be fully on ground at his duty post except when on vacation or on official engagement sanctioned by the Defendants and could not and was not expected to take up any other full time appointment while he remains a staff and on the pay roll of the Defendants.
25. Now the testimonies of the Claimant while under cross examination are germane and critical. It was his evidence on 26/4/22 while being cross examined that in 2013 he requested the Defendants to give him a reference to the South African Embassy; that he could not remember if it was after that he asked for sick leave (evidence led however showed that it was after that he applied for sick leave to go for treatment in South Africa); that he was given 3 weeks sick leave; that he did not return after the expiration of the 3 weeks; that he spent about 6 months after; that he is now working at the University of Lagos; that his appointment was not confirmed by the Defendants; that he did not apply for confirmation of his appointment; that he did not do any confirmation examination; that in 2013 he was absent for 6 months; that in 2014 he was absent for about 8 months; that he did apply for study leave but was not granted; that the ASUP strike was from April to July, 2013; that he started his Ph. D program in 2014; that he got the Certificate in 2018 from the University of Pretoria, South Africa; that the program lasted for 4 years; that he was a full time student (emphasis added); that he appeared before a Committee made up of Medical Doctors; that Leadway Pensure is his Pension Manager; that contributory pension is paid to the Pension Manager; that his elder sister who was his next of kin and his younger sister both studied in South Africa; that the letter of termination of appointment dated 5/1/15 was served on him on 8/1/15; that he obtained his Ph. D in September, 2018 and that he did not make his passionate appeal until he obtained his Ph. D.
26. The totality of the evidence led by the Claimant showed him to be deceitful in the whole episode. He deceived the Defendants to introduce him to the Embassy of South Africa for the purpose of obtaining travel visa to the country. (See Exh. D1). That was on 17/1/13. He did not disclose his intention to the Defendants only for him to apply for a sick leave to travel to South Africa for medicals. That was on 15/4/13 and 3 weeks was approved for the purpose on 17/4/13. (See Exh. D2). Was there a referral from a medical institution or medical practitioner in Nigeria to South Africa? Were there no requisite medical facilities to attend to his medical condition in Nigeria? The medical facility he went to in South Africa (according to the Claimant was attached to the University of Pretoria). It was in that same institution he enrolled, according to him, for a full time 4-year Ph. D program in 2014 which program he successfully completed in 2018. Thus, by his own evidence and admission, he was not at his duty post from 2014 to 2018 during which time he was on a full time study program in South Africa for which there was no approval by his employer. Again in paragraph 2.24 of his final written address, learned Counsel to the Claimant had submitted that “the Claimant obtained a sick leave from the Defendants. He sought and obtained an extension of the sick leave”. There is no evidence before the Court to support the assertion that Claimant obtained an extension of the sick leave. Extension was sought. But extension was not granted. It is the duty of the Bar to properly and sincerely guide the Bench in the dispensation of justice and certainly not otherwise. The Claimant was never at his duty post during the duration of his 4-year full time Ph. D Program. There is no evidence before me to the effect that he rendered services to the institution that employed him during the period he was away. Indeed, by Exh. D5, “Engr. S.A. Odunlami & Engr. A. Dada were the lecturers that covered the schedule of duties of Engr. H. O. Omoregbee in his absence”.
27. I find the conduct of the Claimant which culminated in the termination of his appointment both reprehensible and condemnable. His present employer the University of Lagos will have to be wary and pay some attention to him so that the saying that a Leopard cannot change its colour does not become trite. Going by the facts and the whole gamut of this case I find and hold that the Claimant has failed to prove entitlement to the reliefs sought. To hold otherwise will amount to giving a judicial backing to truancy and irresponsibility in the Nigerian institutions of higher learning. This Court, the National Industrial Court of Nigeria, will not offer such backing. Not in this case. Certainly not in any other such cases. Accordingly, I dismiss the case of the Claimant in its entirety.
28. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety. The Claimant shall pay the cost of this proceedings assessed in the sum of Two Hundred Thousand Naira (=N=200,000.00) only to the 2nd Defendant immediately.
29. Judgment is entered accordingly.
Hon. Justice J. D. Peters