IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABAKALIKI JUDICIAL DIVISION
HOLDEN AT ABAKALIKI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY AUGUST 12, 2022 SUIT NO.NICN/ABK/27/2019
VICTOR DORAWA KOREYO……………………………..CLAIMANT
1. AKANU IBIAM FEDERAL POLYTECHNIC,
2. RECTOR, AKANU IBIAM FEDERAL POLYTECHNIC, UNWANA DEFENDANTS
3. GOVERNING COUNCIL, AKANU IBIAM
FEDERAL POLYTECHNIC, UNWANA
1. NELSON O. CHUKWUEZI – FOR THE CLAIMANT.
2. P.A. EWA – FOR THE DEFENDANTS.
CLAIMANT commenced this suit by General Form of Complaint 30th August 2019. Claimant filed Amended Statement of Facts [ASF] 9th December 2021. At paragraph 42 of the ASF, the following reliefs were set out:
a) A DECLARATION that the claimant has not violated any provision of the Act that established the 1st Defendant and which regulates the appointment of the Claimant in the 1st Defendant for the 3rd Defendant and/or 2nd Defendant or any organ or officer of the 1st Defendant to threaten and/or to subject him to any disciplinary process.
b) A DECLARATION that the allegation of dissemination of false information for which the Claimant is being subjected to disciplinary action by the Defendants was not an act purported to be done by the Claimant in the course of his duties as staff of, and in his capacity as a lecturer in the 1st Defendant but an act allegedly done by a corporate body and for which neither the Claimant nor the corporate body has been given adequate time and facilities for their defence to wit, being confronted with copies of the so-called false information allegedly disseminated.
c) A DECLARATION that the Committee set up by the Management of the 1st Defendant to investigate the Claimant was set up in breach of the mandatory provisions of Section 17 of the Federal Polytechnics Act, Cap. F17 LFN, 2004 (as amended) especially Section 17(1) and therefore the activities of the Committee has no force of law, are ultra vires, null and void and of no effect whatsoever.
d) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, their officers, agents, representatives, successors and/or by whatsoever name called from continuing the disciplinary action in respect of the said allegation(s), or tampering with his, that is, the Claimant’s appointment and/or status in the 1st Defendant, in any manner or means or way whatsoever, including suspension, demotion, termination and dismissal.
In reaction to the above, the defendants filed a joint Statement of Defence [SD] 04-11-2019. Claimant filed Reply to Statement of Defence [RSD] on 21-11-2019. I move to proceedings before the Court.
SUMMARY OF THE PROCEEDINGS
The case first came up before me 24th October 2019. On 7th November 2019 the Court granted the motion to regularise the SD. Thereafter, on the same date, the erudite counsel to the defendants [E.A. EWA] undertook that the claimant would not be sacked while the case was pending, upon which assurance, the erudite counsel to the claimant [N.O. CHUKWUEZI] withdrew the Motion for Interlocutory Injunction to restrain the defendants from sacking the claimant during the pendency of the substantive suit. On 27th February 2020, the case was opened with the claimant testifying as CW1 but could not go far because of defect in the Additional Written Statement on Oath [AWSO] of CW1. It came up next on 22nd July 2021 and the motion to regularise the re-sworn WSO was granted unopposed. The erudite defence counsel also moved the motion to regularise the Counter Affidavit [CA] against the claimant’s motion to set aside the dismissal of the claimant at the pendency of this suit. The case was adjourned after some protracted arguments on the readiness of the claimant’s counsel to go.
The matter came up again on 14th October 2021 and the erudite claimant’s counsel effected corrections of typos on the motion filed 27th February 2020 without opposition and thereafter proceeded to adopt the Written Address [WA] and the Reply on Points of Law [RPL] in support. Thereafter, the defence erudite counsel adopted the WA filed against the motion and the case was adjourned for ruling and continuation. On 12th November 2021 ruling was delivered and the application granted. The dismissal was set aside and reinstatement ordered till dispensation of the substantive suit. Trial continued thereafter with CW1-in-chief. CW1 adopted the WSO made 30-08-2019 and AWSO made 23-03-2020. Exhibits C1-C13 were admitted and the case adjourned. It came up next on 14th January 2022 and the application of the claimant’s counsel to amend the list of document was granted while the application for leave to appeal filed by the defence counsel was struck out. The claimant was re-sworn and adopted his Amended WSO filed 09-12-2021. Exhibits C14-C21 were admitted and the evidence-in-chief closed.
The case came up for XX of the CW1 on 28-01-2022. CW1 replied that, he never wrote through the Ministry of Education but agreed it is the supervisory body for the 1st defendant. CW1 replied that he was issued two queries on the publications in the social media but was never given the contents of the publication till date. He replied further that while he was bound by all the applicable regulations the defendants too were equally bound by these regulations to give him the ingredients of the offence charged and to set up a committee. He admitted he appeared before the committee but that; the committee was not set up in accordance with the regnant laws. He said he only wrote and signed petition against the 2nd and 3rd defendant as executive director of Abraham Children Foundation [The Corporation]. CW1 said the corporation worked in collaboration with EFCC and ICPC in support of the anti-corruption crusade of the Federal Government [FG]. That is all about the relevant XX and it was closed without re-examination. The erudite claimant’s counsel thereafter closed the claimant’s case while the case was adjourned for defence.
Defence opened with Kelechi Franklin Ugwu as DW1. DW1 adopted the WSO made 04-11-2019 and tendered Exhibits D1&D4 and was handed over for XX. Under XX, DW1 admitted he was a member of the management committee set to investigate the claimant and that, he was non-academic staff and was there just to guide the Committee and because, , apart from the Deputy Registrar, others were Chief Lecturers [Academic Staff]. He explained that, the secretaries to all committees are always non-academic staff and not a member. DW1 replied that, he did not see the suit at the time of committee’s proceedings, but after three months. To the question that, the claimant told the Committee that there was a pending suit against it, the DW1 retorted that, if they were served they would have discontinued the proceedings. DW1 admitted he signed the report and that two separate queries were issued to the claimant the same day and that they treated them jointly. To the question whether the alleged publications were attached to the two queries, DW1 retorted that, he could not recall the caption of the query. And to the question that, copies of the alleged publications are not before the Court, he replied that, he was not in possession of it.
DW1 replied that the Committee did not treat the publication as that of the corporation but against the pilot of the corporation. DW1 replied that, the claimant’s name was on all the correspondences of the corporations to the 2nd defendant. DW1 replied that expanded management committee could perform the functions of the Council, in her absence, to promote and demote. DW1 admitted too that, there is nothing like the management committee in the FPA and that the reason is that in the absence of the Council, the affairs of the school could not be left and the management committee would get approval from the Minister to create the expanded committee and perform the functions of the Council. He admitted that, the Council was in place when the management committee was set up to investigate the claimant and that it was the Council that gave the Committee the go ahead and revert to the Council for further investigation by the Council. That is all about the pertinent issues addressed in the XX. It was closed without re-examination. The defence closed their case too. And the case was adjourned for adoption of Final Written Addresses [FWAs]
It came up on the 13th May 2022 for adoption. P. A. EWA, of counsel to the defendants, adopted their FWA and urged the Court to dismiss the suit with cost. Thereafter, erudite NELSON O. CHUKWUEZI, of counsel to the claimant, adopted the claimant’s FWA and urged the Court give judgment to the claimant. Thereafter, the Court ordered the defence counsel to pay default fee on the FWA within 7 days with evidence of the payment filed up in the case file. The defence did not file Reply on Points of Law against the claimant’s FWA. The case was subsequently adjourned to July 01, 2022 for judgment. As judgment was not ready on this date, it was adjourned off record sine die. At the readiness of judgment, date was communicated to the erudite counsel to the parties. I move to summary of the theories of the case as formulated by the erudite counsel to the parties in their respective FWAs.
SUMMARY OF THE THEORIES OF THE CASE
A: Defendants’ Counsel’s Theory of the Case
Erudite EWA AGHA EWA franked the defendants’ theory of the case and submitted three issues for its determination. Under issue 1, which is whether the defendants have the vires to investigate the allegations against the claimant, the erudite counsel argued the claimant was issued two queries and did not deny the allegations made against him in his pleadings but only said he made it as agent of a corporation. The erudite counsel cited Raji v. University of Ilorin (2014) 42 NLLR (Pt. 134) 9, r. 8. The erudite counsel argued that, since the claimant could not exculpate himself in the queries, disciplinary committee was set up to investigate him in line with S. 17(1) of the Federal Polytechnic Act [FPA] and urged the Court to so hold. The erudite counsel moved to issue 2.
Under issue 2, which is whether the claimant committed the misconducts and given adequate opportunity to defend himself, the erudite counsel argued that, the claimant never denied the authorship of the petition to the EFCC against the defendant but only demurred that he acted in his capacity as agent of a corporation. The erudite counsel cited Veepee Industries Ltd v. Cocoa Industries Ltd (2008) LPELR-3461 to the effect that, admitted facts need no proof. The erudite counsel argued that, in appropriate cases, the courts do lift the veil of incorporation and cited Oyebanji v. The State (2015) 14 NWLR (Pt. 1479) 270 at 292 to the effect that, the courts could lift the veil, where the corporate personality is abused or misused, to hold the directors personally liable. The erudite counsel also cited Nigergate Ltd v. Dalami (Nigeria) Ltd (1992) 7 NWLR (Pt. 252) 288 at 304 and Olawepo v. The Securities and Exchange Commission (2011) 16 NWLR (Pt. 1272) 122 to the effect that, the veil could be lifted to get at those who benefitted from wrongful acts in the name of the corporation. That ended issue 2. The erudite counsel moved to issue 3.
Under issue 3, which is the investigative committee was lawful, the erudite counsel cited S. 17 of the FPA to the effect that, the Council of the defendants could set up an investigative committee, once it appears to her that an employee of the defendants should be removed for misconduct and that, this is part of the conditions of service under which the claimant was employed thus, enabling the defendants to commence disciplinary proceedings against the claimant and punished accordingly. The erudite counsel cited Kwara Investment Co. Ltd & Anor v. Garuba & Anor (2000) 10 NWLR 25 [sic] and submitted that, the claimant, being the defendants’ employee, was liable to the disciplinary powers of the defendants in line with S. 17 of the FPA and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599.
The erudite counsel submitted that, an employer has an unfettered right to terminate any employment provided the spelt out procedure was followed and cited Longe v. FBN (2010) 6 NWLR 1 SC. The erudite counsel argued that, the defendants complied with all procedures in terminating the claimant’s appointment. He submitted that, queries were issued and the claimant afforded opportunities to answer them but he did not deny the allegations but shifted the responsibility to a corporation and so could not allege breach of fair hearing. The erudite counsel cited Emadago v. Wichidu (2014) ALL FWLR (Pt. 710) 1391 CA. The erudite counsel also cited Ogologo v. Uche (2005) 23 NSQR 344 at 346, r. 1 to the effect that, a court is precluded from interfering in disciplinary proceedings statutorily given to a body and only has jurisdiction to review the proceedings.
The erudite counsel argued that, the claimant admitted that, he was issued queries but rushed to court instead of answering them in order to truncate the disciplinary proceedings and the defendants rightly ignored the Court and went on with the proceedings and dismissed the claimant irrespective of the suit in Court and cited Essien v. University of Calabar (1990) 3 NWLR 605 CA. The erudite counsel cited Yusuf v. Union Bank Ltd (1996) 6 NWLR 633 SC to the effect that disobedience of lawful order attracts summary dismissal and that, the motive of terminating an employment could not be inquired into and cited Olaniyan v. University of Lagos [supra] and submitted that the contention that, the defendants did not like the claimant’s face is nonstarter. The erudite counsel rounded up the theory of the case by urging the Court to dismiss the case. I move to the claimant’s theory of the case.
B: Erudite Claimant’s Counsel’s Theory of the Case
Erudite NELSON O. CHUKWUEZI franked the claimant’s theory of the case and adopted the three issues formulated by the defendants’ erudite counsel. The erudite counsel preliminarily argued that, where a statute covers the field on an employment and there is another conflicting regulation on the same employment, the statute prevails and cited Olaniyan v. University of Lagos [supra]. The erudite counsel submitted that, it is agreed that the employment has statutory flavours and cited paragraphs 1-3 & 5 of the ASF and 1,3&5 of the SD. Erudite counsel submitted further that, the defendants failed to show to the claimant a copy of the information allegedly disseminated and thereby flouted the enabling statute. The erudite counsel referred to paragraphs 26, 29, & 30 of the ASF; 20-21 of the SD and the XX of 28-01-2022 and 25-3-2022. The erudite counsel thereafter moved to issue 1.
Under issue 1, the erudite counsel argued that, the issue has no relevance to the facts of the case, but just adopted to ensure harmony in his submissions. The erudite counsel argued that, the issue is not whether the defendants have powers to discipline the claimant but whether in doing so, they complied with the requisite laws; and posted full argument on it to issue 3.
Under issue 2, the erudite counsel referred to Exhibits C6 & D2 and submitted that the claimant was accused of disseminating false information against public officers but failed to state that the claimant did so in his capacity as lecturer in the 1st defendant, whereas, a corporation has independent legal personality in line with Salomon v. Salomon (1897) AC 22. On the basis of this, the erudite counsel submitted that, the claimant being a known agent of the corporation is not liable to be proceeded against. The erudite counsel cited FGN v. Shobu Nig. Ltd (2004) 3 WRN 150 at 166, lines 30-45. The erudite counsel referred to paragraph 26 the DW1’s WSO wherein DW1 claimed ignorance of the corporation but his falsehood was revealed in Exhibits C6, C13 & C21.
The erudite counsel argued further that, even if it could be assumed that, the veil could be lifted, the fact remains that the claimant had no fair hearing. The erudite counsel submitted that, failure to furnish the claimant with the alleged publications on the social media on which he was disciplined was fatal by virtue of S. 36(1) of the 1999 Constitution and Okoye v. COP (2015) 4-5 MJSC 34 at 60, B-F. The erudite counsel argued that the defendants relied heavily on the Public Service Rules [PSR] in paragraphs 5, 13, 17 & 27 of the SD but failed to obey Rule 030307(1) of the very PSR they relied upon, which mandates that, any accusation based on a document, the document must be furnished to the employee and cited Adedeji v. Police Service Commission (1968) NMLR 102.
The erudite counsel argued that, this must be so irrespective of whether the employee answered the query because, it is on the basis of the answer to the query that, a committee would then be set up wherein the employee would now be asked to defend his answer to the queries and that, the defendants neither made the publication available to the claimant nor tendered it in this court. Erudite counsel referred this Court to paragraph 4 of the RSD and urged this Court to hold that; this amounts to an infraction of the claimant’s right to fair hearing.
The erudite counsel submitted that, the response of the claimant to Exhibit C6 in Exhibit C7 showed that, he was neither investigated on EFFC problem at all nor admitted the commission of any offence. The erudite counsel urged the Court to find in favour of the claimant on issue 2 and signed off the issue.
Under issue 3, the erudite counsel argued that provisions of S. 17(1)(a)-17(1)(c)(iii) of the FPA were not complied with. Referring to paragraphs 25 & 33 of the WSO, the erudite counsel argued that neither the claimant nor any member of the 3rd defendant requested for the convocation of Investigation Committee [IC] while it took more than two months to set it up from the date of Exhibit C6, as provided by law. He submitted that, these pieces of evidence were not challenged under XX imputing them with admission in accordance with Yampa v. Babareke (2017) ALL FWLR (Pt. 901) 676 at 717-718, G-B. The erudite counsel argued too that, the defendants ignored the provisions of S. 17(1)(c) in setting up the Management Committee in that it was only made up of one lecturer, two members of the academic board and two management staff contrary to joint members of Council and Academic Board. Erudite counsel referred to paragraphs 22 & 24 of the ASF and 19 of the SD, which failed to give the status of the three chief lecturers. The erudite counsel submitted that, where the law provides for a special method of doing something, non-adherence leads to nullity of any result achieved and cited Wada v. Bello (2017) 3 WRN 36 at 99, lines 25-30; Olaniyan v. Unilag [supra].
The erudite counsel argued that, the Court of Appeal represented the correct position of law in Essien v. University of Calabar and that, the issue before the Supreme Court was whether the Court of Appeal could suo motu raise an issue and decide it without calling the parties for address. Erudite counsel submitted that, the three chief lecturers and the two non-academic staff, who were not management staff could not constitute the committee prescribed by S. 17(1)(c)(i) of the FPA. Erudite counsel submitted that the defendants just convoked their cronies to dismiss the claimant who had given evidence that; the committee told him that, no matter his defence, they were instructed to dismiss him and referred to paragraph 8 of the AWSO. Erudite counsel submitted too that, this evidence was not challenged under XX and thus remained unscathed.
The erudite counsel argued that, while he concedes to the authority of Raji’s case [supra], his grouse is that, the defendants failed to set up the Committee in line with the law and hence the Court has the vires to declare it illegal. In reaction to Ogologo’s case, the erudite counsel submitted that the ratio relied upon by the defence was obita but nonetheless, the defendants only had exclusive power to set up joint committee of Council and the Academic Board, which they failed to do and as such, the Committee lacked the power to do anything at all and that, had a joint committee prescribed by law been set up, only then would it have been premature for the claimant to rush to court but, since it was an illegal committee, the claimant had the right to immediately come to court to challenge the illegality and cited AG Anambra State v. Eboh (1992) 1 NWLR (Pt. 218) 495 at 509 and Izuchukwu v. Okonkwo (2002) FWLR (Pt. 92) 1708 at 1714 to the effect that, anyone who smells an injury need not wait for it to happen before rushing to court.
Erudite counsel submitted that, what the claimant did in the instant was in compliance with these authorities; more particularly so that, the Committee had said their mandate was to dismiss him at all cost. The erudite counsel submitted that, the defendants could not be said to have dismissed the claimant on the basis of illegal procedure they adopted and cited Okwuosa v. Gomwalk & Ors (2017) 2 MJSC (Pt. 1) 97 and Olaniyan’s case [supra] on the effect of fundamentally defective process. The erudite counsel submitted that, it is now clear that, the defendants failed to comply with the law contrary to their assertion.
The erudite counsel submitted that, it is amazing that, in spite of this Court’s holding on 12/11/2021 that the defendants’ conduct in dismissing the claimant during the pendency of this suit amounted to affront to the Court, the defendants still had the temerity to argue in paragraph 6.6 of the FWA that, they had the right to dismiss the claimant notwithstanding the pendency of this suit. The erudite counsel argued that, it was stated in paragraph 18 of the SD that, the defendants sought the advice of their counsel before they took the steps they took while DW1 stated under XX on 25-3-2022 that, had they had knowledge of this suit, they would have halted their proceedings but paragraphs 15, 16, 18, & 23(d)-(g) of the Counter Affidavit the DW1 filed on 17-7-202 in reaction to the Motion on Notice for interlocutory injunction showed the falsehood. The erudite counsel cited State Civil Service Commission & Anor v. Buzugbe (1984) 7 SC 19 at 40 on the effect of taking short-cut in matters of natural justice and that it leads to nullity of the process. There the erudite counsel signed off the FWA.
I must now proceed to my decision. But before then, I wish to state that I have carefully read all the pertinent processes and digested their contents. I am aware that, I did not summarise the pleadings and the WSOs. The WSOs are carbon copies of the pleadings while the issues involved in this case are very narrow to necessitate full summary of the pleadings that could be summarised in few sentences. I will however refer to them as occasions demand. I have also studied some of the focal authorities cited and also did further personal research on relevant authorities that would enable me give a well-reasoned decision. Off to my decision I go.
COURT’S DECISION AND THE RATIONES DECIDENDI
The erudite claimant’s counsel adopted the three issues formulated by the brilliant defence counsel, but I found that these three issues are tautologous. I therefore take the liberty to condense them into just a lone issue, to wit: Was the claimant lawfully dismissed?
The defendants conceded paragraphs 5-8 of the ASF that the claimant’s employment has statutory flavour. The only area of dispute is whether the proper procedures were followed. The claimant had complained that he was not served with copies of the documents containing the allegations against him and that, the committee that investigated his case was not properly constituted, thereby cumulatively denying him fair hearing and that, he acted as agent of a corporate body, he could not be made personally liable for the allegations against him, allegedly committed as officer of the corporation. Those were the gists of his pleadings and evidence-in-chief. He maintained this stance under XX.
The defence on the other hand pleaded that, proper procedures were followed, as the claimant was issued with queries, which he answered and a committee was set up under the auspices of the Council, while the Registrar issued the queries in question, on the directives of the Council and that, the claimant therefore, had fair hearing. But I observed that, the defendants did not say specifically that they gave the claimant copies of the documents containing the allegations against him. Those were the pitches of the pleadings of the defence and their evidence-in-chief. But in the address of both sides, I observed that, issue of dismissal during the pendency of this suit was raised, first by the defence and justified, and contested by the claimant.
But before going into the meat, I will like to address some preliminary points. First is the issue that this suit is premature and that, the Court cannot stop the defendants from carrying out the administrative functions bestowed on the defendants by law. The claimant has argued that, where issue of non-compliance with statutory procedure is involved, the he can come to court immediately instead of waiting till the injury of threatened dismissal is achieved. My take on this is that, while this is the general position of the law that courts do not normally stop administrative bodies from performing their functions, it is not without limitations or exceptions. It is definitely not absolute or licence for illegality. The Court still has the discretion to examine the merits or otherwise, if allowed to go on full trial and render its verdict. Each case must be examined on its merits. This instance must be distinguished from a situation where the Court lacks substantive jurisdiction on the subject matter of the case. It is the law that, any procedural issue, which does not affect the rules of fair hearing, could be waived and is waivable – see Nagogo v. CPC & Ors (2012) LPELR-15521 (SC) 26-27, E-C.
Therefore, where issues are joined on the pleadings and no objection is incorporated and set out by way of formal application to be heard in limine, on the basis that the action is inchoate and the case is contested on the merit of the validity of the procedure been challenged, the Court might be bound to give its decision on the merit of whether or not the procedure in issue was correct. This scenario is quite different from the situation whereby a statute directly provides for conditions precedent to the institution of an action, which was not complied with. The violation of any statutory conditions precedent was not cited here. The rule that, administrative decision making functions cannot be stopped by courts is a rule of procedure invented by the courts to protect administrative functions and does not affect the jurisdiction of the courts at all.
So, where no objection is raised timeously and issues were joined on the merit of the rightness or otherwise of the procedure in issue, it would be wrong to raise the issue at the final address stage after full plenary trial, in order to prevent the courts from looking into the merits of the procedure being challenged, where it was not shown that the proper procedure was followed, especially where there is allegations of abuse of office and bias. It should be noted that, a person has the right to insist on the proper procedure being followed in his discipline, and it would be wrong for the courts to fail to determine this after full plenary trial because the defendants raised the issue at address stage that, the courts do not fetter the hands of administrative organs from performing their duties.
It must be noted that, at this stage, the full evidence is before the Court and it would be wrong for the Court to fail to give its decision on the issue fully joined and tried. Hence, it behoves the party that has this type of objection to raise it before full trial to enjoy the benefit of having the case terminated in limine. That is the distinction between a situation where statute directly provides for conditions precedent, on which the courts generally have no discretions and the rule evolved in equity to protect administrative bodies, which is what is involved in the instant case. I therefore find and hold that the issue is too late to raise at this stage. It is accordingly dismissed. I move to the second preliminary issue. The second and third points deal with some misconceptions by both sides.
The second is the issue of the applicability of the Public Service Rules [PSR] and the Staff Manual. I make bold to say that, both are totally inapplicable to the discipline of an academic staff in the 1st defendant, by virtue of S. 17(1) & (6) of the FPA. S. 17(1) outlines the procedures to follow to discipline an academic staff and, it is totally self-sufficient in that, it covers the whole field without any vacuum, while S. 17(6) provides that:
“Nothing in the foregoing provisions of this section shall prevent the Council from making such regulations for the discipline of other categories of staff and workers of the polytechnic as it may think fit.”
The underlined portion of Sub-section 6 of S. 17 shows clearly that, the Council could only make regulations on the discipline of other staff than those specified in S. 17(1) of the FPA. Express mention of one thing excludes those not mentioned – FRN v. Osahon & Ors (2006) LPELR-3174 (SC) 80, B-D. S. 17(6) of the FPA clearly excluded academic staff from the ambit of any manual or other regulations that the Council might have made with regards to their discipline. I have combed the whole ambit of the FPA and could not find any other provisions that gave the Council powers to make any further rules than contained in S. 17(1) of the FPA on the discipline of an academic staff of the 1st defendant. It means S. 17(1) covers the field completely without rivalry of any other statute or, subsidiary legislations, even if only for duplicatory purposes, since a subsidiary legislation must derive its vigour and legitimacy from the principal statute, it follows that, where there is no statutory power to enact a subsidiary legislation, any such exercise of inexistent power is a nullity – see Odeneye v. Efunuga (1990) LPELR-2208 (SC) 21, A-C.
I am not unaware of the provisions of S. 13 of the FPA, which says the Council shall determine the conditions of service of the Council [mark it, not the 1st defendant] in consultation with the Federal Civil Service Commission. We do not know if the Council has its employees different from those of the 1st defendant [the institution]. But it is not likely. Let us therefore take it that the second mention of the Council referred to the 1st defendant. Under this assumption, it is taken that the Council might be empowered to make manual or subsidiary regulations on the conditions of service of which the procedure of discipline is part. But, the applicable rules of interpretation are: special provisions prevail over general provisions within the same statute and, in the case of inconsistent provisions of the same statute, the latter prevail – Iwuchukwu & Anor v. The AG Anambra State (2015) LPELR-24487 (CA) 62-64, E-A; Nobisi-Elendu v. INEC & Ors (2015) LPELR-25127 (SC) 40, A-D and Jack v. University of Agriculture, Makurdi (2004) LPELR-1587 (SC) 17, E-F.
Besides, there is a distinction between the civil service and public service in strict legal sense, but not much in loose language; and here, we are concerned with the strict legal sense of the terms. S. 318(1) at “civil service of the Federation” and “public service of the Federation” makes a clear distinction between both and this distinction, has far reaching legal implications – see Ehigie v. Edo State Judicial Service Commission (2017) LPELR-42022 (CA) 30-33, D-B. One of the legal implications is that, the PSR is made pursuant to S. 160(1) of the 1999 Constitution and has jurisdiction over only federal civil servants, by virtue of Paragraph 11(1) of the Third Schedule to the 1999 Constitution, whereas, by virtue of S. 318(1)(f) at “Public Service of the Federation”, the claimant is a staff of an educational institution established by the federal government and, the statute creating it made it an independent juristic personality with powers to sue and be sued in its juristic name – see S. 3(1) of the FPA. I therefore firmly find and hold that, only S. 17(1) of the FPA governs the procedure of removal of academic staff in the 1st defendant to the exclusion of both the PSR and Staff Manual. The PSR and Staff Manual could only be applicable if incorporated directly by the FPA. That settles that.
The third preliminary issue I need to tackle is the issue of taking canopy under the umbrage of corporate personality. I waste no time in coming to the conclusion that, the erudite defence counsel is correct that, this is an appropriate case whereby the veil of incorporation could be lifted because, the publication of false information to cause disaffection is defamation, which is both a crime and a serious civil wrong. I observed that, the erudite claimant’s counsel did not really answer this aspect of the case in his FWA. He merely cited Salomon v. Salomon to the effect that corporations have independent existences and that acts done on their behalves cannot be pinned down on the human agents. But there is rarely any principle of law without exception such that, what really makes lawyers experts in law is knowledge of these exceptions. The general public knows the general principles of law just like the lawyers or are imputed with the knowledge. That is the basis of the cliché that: “ignorance of the law is no defence.” But the laymen do not know the exceptions: that is the distinction between a lawyer and non-lawyer. The erudite defence counsel has spelt the exceptions, and I have found that, truly, when allegations of crimes or torts are made against a corporation, the veil could be lifted to get at the agents of the corporation that are directly involved in the criminal or tortious allegations. Hence, the claimant in the instant case cannot hide under the veil of incorporation. I hereby lift the veil.
I now come to the main issue. First, is the question of necessity of serving on the claimant, the copies of the documents containing the allegations on which, he was dismissed. The erudite claimant’s counsel has made heavy weather of this; while it does not seem that the defendants have good answer to this under both XX and the address. It is all furry without substance: an erroneous statement of the law. And incidentally, the erudite claimant’s counsel relied on the PSR and the Staff Manual for this purpose both of which I have said, are not applicable to the claimant [an academic staff] for the purposes of his discipline. The law as ensconced in S. 17(1) of the FPA does not require that the exact copies of the documents constituting the offence be served on the claimant, to fulfill the righteousness of fair hearing. It is sufficient if the salient contents are paraphrased in the charge or notice of invitation and served on the claimant. Once that is done, the righteousness of notifying him of the allegations and nature of the offence is fulfilled. I cite Afribank Nigeria Plc v. Osisanya (1999) LPELR-5206 (CA) 15-17, A-E:
“…If the right to be heard is to be real right, which is worth anything, it must carry with it, a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statement have been made affecting him and then he must be given a fair opportunity to correct or contradict them…A person so accused is entitled to be confronted with his crimes, be told the nature and content of the case against him…”
This is what UBA Plc v. Oranuba (2013) LPELR-20692 (CA) 42-44, C-B re-echoed by holding that:
“…But once the panel has concluded its inquiry and makes up its mind that any points had prima facie been made out which point to the fault of any person, the employer must first inform such employee of the points in the case against him and give him the opportunity to refute…”
The Supreme Court endorsed the above rationes in Oyeyemi v. Commissioner for Local Government, Kwara State & Ors (1992) LPELR-2882 (SC) 18-19, E-C. That being the law, the question now is: has the defendant complied with the procedure? I am afraid not. Why? Apart from the fact that, I had earlier held that, the PSR and the Staff Manual are inapplicable to the claimant on the issue of discipline, which first nullifies Exhibits C6&C9, which were the two queries issued the claimant, which placed reliance on the PSR, the further problem is that, both did not give the points or gists that constituted the misconduct in issue. They just cryptically said that the claimant disseminated false information about public officers to cause disaffection on social media and that, he also circulated on the social media a document titled “Underpayment In The Personnel Grant” with intents to cause public disaffection and nothing more.
Since when did it become offence or misconduct to circulate public documents that are not classified or, proved to be classified, in the public, when government officials are even under duty to issue them [Certified True Copy] to the public on demand – see S. 1 of the Freedom of Information Act [FIA]. Nothing was said about the contents that might cause public disaffection. As it would seem that the cause of public disaffection is the real offence, the claimant and the Court must know what is in the contents that could cause public disaffection. You cannot just arrive at the accusation of public disaffection from the blues. In the absence of the contents of these documents, it cannot be determined that, they come under any of the exceptions in the FIA, especially taking into consideration the ambit of S. 2(3)(d)(v)-(vi) of the FIA.
So, the claimant could not be censored for publishing public documents without showing the contents of the documents that made them offensive. Gone is the military era when all official acts, were by law, shrouded in secrecy: transparency is the litmus test of democracy. There is no basis to hide any public information without justification in law, which legal justification must be for the public good to stand. What this means is that, a public body resisting the publication of information concerning it must prove the public interest involved and the law infringed. The law positively grants access to public information.
It was not stated the gists of what actually were contained in these documents that made them an offence. The first one stated cryptically that, the claimant published false information about government officials: what the contents of the alleged false information were or the gists, were not stated. The same thing is applicable to Exhibits C15 [Also as First attachment to Exhibit D1], the 2nd document attached to Exhibit C20 dated 01-08-2019 [Also as Second attachment to Exhibit D1], Exhibit D1 and the Third attachment to it, dated 06-09-2019 are four different invitations to the committee. The gists constituting the offences were not stated. And each asked the claimant to come along with the materials to defend himself, when he could not be shown to have fair gists of what exactly are the facts constituting the offence. This procedure is clearly in contravention of the authorities cited earlier on the need to give the gists of misconducts to pass the test of fair hearing and natural justice and S. 17(1) of the FPA, which encapsulates the doctrines of natural justice and fair hearing in the instant case. S. 17(1)(a) of the FPA clearly says that:
“If it appears to the Council that there are reasons for believing that any person employed as member of academic…should be removed from office on the ground of misconduct… the Council shall –
(a) give notice of those reasons to the person in question…”
While it might be that the Council could get the information of the misconduct from any source or from personal knowledge or research or even dreams, since the operative phrase is “if it appears”, the sine-qua-non is that, there must be reasons for believing that a ground exists for believing that the employee has committed misconduct and, these reasons must be furnished the culprit. It follows that; you cannot have reasons for believing that a ground exists without stating the factual basis of the reasons for the belief. The reasons to justify the ground on which you believe that misconduct exists against the employee can only exist in the context of the factual situation involved, from which a rudimentary inference is drawn [prima facie] to give rise to the appearance that a ground of misconduct exists against an employee.
The Council cannot just wake up and say it appears to it that the claimant published false information against the defendants without stating the factual context from which the opinion was formed, even as it has great latitude in this. It must still state the factual situation of the belief. But, as the Council is a corporate body that must act through human agents and arrive at its decision by consensus, there must be concrete basis for arriving at the appearance that an employee is suspected of committing misconduct and this must be fully revealed to the employee to defend. The council must state in concise manner the facts from which the opinion of misconduct was formed and not simply an opinion formed from the blues that, someone published false information against the defendants without stating what exactly constituted the false information and why it is false. To concede to this would turn the Council into an ogre or leviathan riding roughshod over the principles of fair hearing and natural justice.
There are important ingredients or requirements introduced by the words: “appears” “ground” and “reasons” that surfeit S. 17(1) of the FPA. Parliaments do not use words in vain. Words are used for purposes in legislations and where different words are used they must have their effects. The scenario envisaged is this: The ground why it appears that an employee has committed misconduct is that, he published false information to cause public disaffection. The reasons for believing in the ground is that, these are the facts constituting the alleged false information and these are the true state of things and, from these, the Council knew the employee lied, and by publishing the lie to the public, the Council came to the conclusion that the employee intended to cause public disaffection. Anything devoid of these is inchoate. Misconduct can never be created in vacuum of the facts constituting the misconduct.
It must be possible for the reviewer of the administrative or domestic tribunal’s proceedings, which this Court is, to see for itself and form its opinion that, there truly exist reasons for believing that ground exists to attach the claimant with the misconduct charged. It is only after that, that the claimant is obliged to answer the charge of misconduct. He cannot be expected to grope in the dark about a charge he is to answer. If the Court could not fathom what exactly was published, how could the Court fathom that, there were actually reasons for believing that a ground to attach the claimant with misconduct exists. To merely say the claimant published false information against the defendants without telling us what those alleged false pieces of information were and why they were false, would, to my mind, not satisfy the requirements of S. 17(1)(a) of the FPA and the case laws cited abovein.
I therefore find and hold that, the procedures adopted in the trial of the claimant contravened S. 17(1)(a) of the FPA, the rules of natural justice and S. 36(1)&(2)(a) of the 1999 Constitution. A person could not be said to have reasonable opportunity to contest an allegation against him when the facts constituting the allegations are not made bare to him and therefore, S. 36(2)(a) of the 1999 Constitution could not be said, to have been complied with – see Afribank Nigeria Plc v. Osisanya; UBA Plc v. Oranuba; Oyeyemi v. Commissioner for Local Government, Kwara State & Ors and Owoyemi v. Commissioner of Local Government [supra]. The queries and committee investigations without affording the claimant facts upon which the defendants accused him of publication of false information and why the publications were false or that, he had no right to publish or what exactly were published, are therefore a nullity and are accordingly set aside together with any decision and actions based on it. In the impari materia case of University of Calabar Teaching Hospital & Anor v. Bassey (2008) LPELR-8553 (CA) 28-37, F-A, the Court of Appeal held that, it was fatal not to comply with the similar provisions of S. 9(1) of the University Teaching Hospital (Reconstitution of Boards, Etc) Act. The failure to state the ingredients of the misconducts committed is as good as not serving at all the notice of the misconducts. See also Adeniyi v. Governing Council of YABATECH (1993) LPELR-128 (SC) 40-42, C-D.
Even the question of admission cannot safe the situation here because, you cannot admit what is not before you or made known to you – see Eboade & Anor v. Atomesin & Anor (1997) LPELR-989 (SC) 32, B and Moussallati & Ors v. Knight Frank Estate Agency (2017) LPELR-42893 (CA) 23-26, E-B. Besides, this is where the law insists on strict compliance with due process. That is why it is not even necessary to examine the claimant’s defence. Once the Court comes to the conclusion that, there was no compliance with the strict procedure: that ends the case. The reason for insisting on the correct procedure is to ensure that, the employee understands the charges against him and if he is admitting, he admitted what he knew and which would be clear to all that he knew and understood. Where, as in the instant case, up till now, even the Court is put in the dark as to the ingredients of the misconducts or the facts grounding the misconducts in issue, there cannot be admission of what is not known or non-compliance with mandatory statutory and constitutional provisions or waival of same – Olufeagba v. Abdur-Raheem (2009) LPELR-2613 (SC) 37-38, 41, C-E.
At paragraphs 11&19 of the SD, the defence pleaded that; the Committee was made up of five members, with Dr. Ike Maduabuchi as the Chairman and that, there were three Chief Lecturers and two non-academic staff. The claimant had attacked the constitution of the Committee that, it did not have the requisite membership types. What does S. 17(1)(c) of the FPA say? It says for academic staff, a Joint Committee of the Council and Academic Board may investigate and report to the Council on request. It is clear that, the pleadings did not state that the memberships satisfy these requirements as the status and affiliations of the memberships were not stated. We have been told that three Chief Lecturers were members and two non-academic staff. We know a little about the status of the three academic staff that, they were Chief Lecturers, but nothing about their status: whether they were for the Council or the Academic Board. We know nothing absolutely about the status of the two non-academic members of the Committee: neither their grade level nor their status as either representing the Council or the Academic Board.
Construing the provisions of SS. 3(2) and 15(1) of the FPA, it is clear the two non-academic staff have no place at all in the Committee. We are left with the three lecturers. Now, since a lecturer could be members of both the Council and Academic Board and, there are three lecturers in the said committee, it could have been reasonable to give the Committee the benefit of presumption of regularity, but this seems to be negated by the evidence of DW1 under XX that, it was the 3rd defendant who ordered the setting up of the Committee and the issuance of the queries and, not that, three members of the Council or that, the claimant himself so requested. But the argument about the Committee being set up after one month is nonstarter because, the law did not say it must be set up within one month of the notice but that, the request to set it up be made within one month, obviously before the Council makes its decision on the query known, as setting up of the Committee is contingent on request. It would appear too that, since the Council is composed of many people that, when it is said that the Council ordered the setting up of the Committee, it is presumed that, the requisite of three members was complied with. So, in effect, the setting up of the Committee enjoys the presumption of regularity.
At the end, I hold that the setting up of the Committee enjoins the presumption of regularity, which has not been debunked by cogent and compelling evidence other than the ipse dixit of CW1. There is no concrete evidence of the members, constituting both the Council and the Board, which excludes the three lecturer-members of the Committee and that, the non-academic staff, being members of the Committee, had been explained to my satisfaction under XX that, one was the secretary, while the other was the legal adviser to the august body. Therefore, the setting up of the Committee was in order but, like I had found earlier on, the notices of invitation issued the claimant were fundamentally defective and thereby rendered the proceedings a nullity. I so find and hold. In effect, the lone issue is decided in favour of the claimant and against the defendants.
Before I go to the final aspect of the case, I have to touch on the ancillary [consequential] issue of the dismissal of the claimant during the pendency of this suit and after undertaken by the defence counsel that, the claimant would not be dismissed at the pendency of the suit. Application was brought to set aside the dismissal and, it was heard and granted on the merit whereby the Court ordered the reinstatement of the claimant pending the conclusion of the trial of this case – see the unreported ruling of this Court on this case delivered Friday 12th November 2021. The defence filed application for leave to appeal against the ruling at this Court. It was struck out on the ground that, this Court lacked jurisdiction to entertain it and that, it ought to have been filed straight at the Court of Appeal. Thereafter, the case continued and was heard to conclusion without any further mention of the issue, until the erudite defence counsel raised it in the defence FWA – see paragraphs 6.5-6.9 of the FWA. The erudite claimant’s counsel replied at paragraph 4.19-4.23 of the claimant’s FWA.
While the arguments of the erudite defence counsel had remained exactly the arguments he had earlier on canvassed on which I had ruled against him, the arguments of the erudite claimant’s counsel in rebuttal essentially echoed my decision on the application to set aside the dismissal. Now, I observed that, the claimant did not plead in his ASF to incorporate this standing issue in it and did not frame a final relief on it. But the law is that, an order of Court, which has not been appealed, remained binding until overruled by a higher court or, set aside by the court itself. Now, that the defendant brought the issue up, I could not close my eyes to it because, it is an ancillary [consequential] issue directly connected with the reliefs sought in this case and the processes relating thereto.
I have the burden duty to comment on it and make my decision known thereof. And being an issue that is intrinsically connected with the main issue and reliefs sought in this case, by virtue of SS. 14 and 19 of the National Industrial Court Act, which give this Court the vires to make appropriate orders justified by the facts of a case and, being an ancillary [consequential] issue on which I am by law bound to decide upon and make any appropriate order that is fit by law in the circumstance, I hereby hold that, the law is that, except in appropriate circumstances, a contemnor is not entitled to the benefits of the services of the same Court it has disobeyed – see Obeya v. FBN Plc (2010) LPELR-4666 (CA) 9-10, A. It is an assault verging on insolence on the part of the erudite defence counsel to abuse the process of the Court by indirectly asking it, to overrule itself on an issue on which the Court had given a well-considered ruling, which had neither been complied with nor appealed till date, by arguing all over again, the same arguments that had been dismissed in the considered ruling. I leave the conduct of the erudite defence counsel at that.
Just like in Obeya v. FBN Plc [supra], the defendants herein did not satisfy any of the exceptions to the rule that a contemnor cannot be heard. The defendants, having left the order of the Court hanging without compliance till the determination of the substantive suit, on which event the order was expected to lapse or fuse into the final determination of the case, the only fitting thing, is to make the order absolute, since the contemnors could not be heard at all and because, it is fitting to teach them a lesson that, the behaviour in civilized reckoning is that, you obey orders of courts or appeal, otherwise, had it been that, the case had not been decided in their favour on the first issue, it would have meant that, they got what they wanted by all means, if this issue were again decided in their favour. May God forbid that! It would have amounted to a court of law encouraging clear contemptuous insolence from both counsel and the defendants-clients. It would have meant they would continue to treat the courts of this land with contempt in future, knowing that, by simply ignoring the courts’ orders, the courts would ratify the disobediences later. Deprecating this and its implications, the Supreme Court came down heavily on the contemnors in similar circumstances in Garba v. FCSC & Anor (1988) LPELR-1304 (SC) 28-29, C-E. Here the oracular words of the deity of law on this:
“What remains now is an examination of the act of the Respondents in dismissing the Appellant from office during the pendency of the action. Such action, I think is contemptuous of the judiciary, which has been seised with determination of civil rights under the Constitution and which has been left unscathed by all military coups. For the Judiciary, a powerful arm of government to operate under the rule of law, full confidence, and this must be unadulterated, must exist in that institution. It must indeed be demonstrably shown especially if it is the other arms of government that are involved. In civil days both the Executive and the Legislature must show to the entire nation their demonstrable confidence in the Judiciary… ‘Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the state, it is the duty of government to allow the law to take its course or allow the legal and judicial process to run its full course.”
In this case, the Supreme Court set aside the dismissal for these reasons. The Court of Appeal towed this same line in similar situation in its very recent unreported decision in Suit No. CA/A/1089/2019 – The Nigeria Civil Service Union v. Comrade Benson Ekasa & Ors (delivered February 25, 2022], which facts are similar to the instant case, where it held thus:
“A Contemnor who does not obey or is in disobedience of a court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a court of law. A party in disobedient or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See:- Governor of Lagos State v. Ojukwu 1986 1 NWLR; where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein cannot be granted such judicial help.” [P. 22]
I therefore make the earlier order setting aside the dismissal at the pendency of this suit and directing reinstatement, pending the determination of this suit, a final and absolute order against the defendants-contemnors. In view of the above, I find and hold for the second time that, the proper procedure and due process of law were not followed in the claimant’s dismissal. In essence, the claimant doubly succeeds on the lone issue while the defendants lose it.
The claimant is therefore entitled to all the reliefs claimed, except relief c), granted only to the extent that, the Committee’s infringement of fair hearing nullified its decision and, the additional relief of reinstatement, being that, his appointment had been unlawfully dismissed during the cause of this action, as found and held earlier on. He is entitled to cost too. This is 2019 case. Considering the depreciation of the Naira, I assess the cost at N500,000 [Five Hundred Thousand Naira] only against the defendants and in favour of the claimant. I refuse to grant any moratorium being that; the defendants are contemnors, who had earlier been ordered to reinstate the claimant till determination of the substantive suit and granted moratorium of one month on the arrears of salaries, which they ignored with more contempt. The claimant is entitled to interest on the judgment debts. I grant 20% simple interest rate per annum till the judgment debts are fully liquidated. Following the reinstatement, the claimant’s arrears of salaries must be paid to him too. The case must drive to a close.
Flowing from the above, I reiterate the reliefs granted as follows:
1. Reliefs a) in full.
2. Relief b) in full.
3. Relief c) to the extent that, the dismissal of the claimant during the pendency of this suit is unlawful and, is hereby set aside, while the claimant is ordered to be reinstated to his position ante this suit with the payment of all the arrears of his salaries.
4. Cost of N500,000 (Five Hundred Thousand Naira] only against the defendants and in favour of the claimant.
5. The judgment takes immediate effect, being that, the defendants are double-time contemnors, and are therefore, not entitled to the discretion of the Court.
6. 20% simple interest rate per annum on the judgment debts until fully liquidated.
That is the judgment of this Court on this case. Judgment is accordingly entered today Friday the 12th day of August 2022, under my hand, being the presiding judge.
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA