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/09/2021
DR. GEOFREY NDUBUISI UDEFI……………………….CLAIMANT
1. ALEX EKWUEME FEDERAL UNIVERSITY
NDUFU ALIKE IKWO (AE-FUNAI)
2. VICE CHANCELLOR ALEX EKWUEME
FEDERAL UNIVERSITY NDUFU ALIKE IKWO DEFENDANTS
3. REGISTRAR, ALEX EKUWEME FEDERAL
UNIVERSITY NDUFU ALIKE IKWO
1. G.E. NWANTU WITH THE BRIEF OF CHIEF J.O. UZOR – FOR THE CLAIMANT.
2. MICHAEL OGWUGU ODO – FOR THE DEFENDANTS.
ORIGINATING SUMMONS [OS] commenced this suit 3rd December 2021. It framed the following reliefs:
(a) a declaration that the termination of the claimant’s appointment by the defendants vide letter of termination with reference number FUNAI/R/PER/SS/451/VOL.1 dated March 21, 2018 is null and void ab initio and of no effect whatsoever and flagrantly in breach of the service agreement between the claimant and the defendants;
(b) an order of injunction retraining [sic] the defendants by themselves, servants, agents, officers and privies from acting on the said letter of termination of appointment;
(c) an order reinstating the claimant unto his position of employment as per the status quo at the time of the purported termination of employment;
(d) an order compelling the defendants to pay the claimant the arrears of his annual salaries of N1,300,255.00 – N1,447,767.00 or otherwise any sum due to him as salaries from the month of May 2018 till the date of his reinstatement.
(e) An order of mandatory injunction compelling the defendants to issue to the claimant a letter of confirmation of his appointment with effect from November 8, 2016;
(f) N5,000,000.00 damages for breach of contract; and
(g) Such further or order orders as this Honourable Court may deem fit to make in the circumstances.
The claimant also submitted the following questions for the determination of the OS:
i. Whether the claimant’s appointment was lawfully and properly terminated by the defendants?
ii. Whether the claimant is not entitled to all the reliefs claimed in this suit?
The above has Affidavit in Support [AS] and Written Address [WA]. The defendants reacted to the above by Counter-Affidavit [CA] and WA filed 18th March 2022. The claimant replied by Further-Affidavit [FA] and Reply on Points of Law [RPL] filed 25th April 2022. Thus, issues were completely joined. I move to summary of proceedings.
SUMMARY OF PROCEEDINGS
The case first came up on 28th January 2022 before me. It came up next 18th March 2022. On this date, the defence application to regularise their CA was granted while the case was adjourned. It came up next the 29th April 2022. On this date, the claimant’s counsel regularised the FA. Thereafter, K.B. ONUZURUIGBO, of counsel to the claimant, adopted the Written Address [WA] in support of the OS and the RPL in support of the FA and urged the Court to grant the reliefs claimed. Thereafter, M.O. ODO, the erudite defence counsel, adopted the WA in support of the CA and urged the Court to dismiss the case.
Thereafter, under the guise of adumbration, the erudite claimant’s sought to make new address and the Court said it was not permitted and erudite counsel asked for adjournment to furnish the Court with authority on the right to make new address at adumbration. On this count, the case was adjourned to 3rd June 2022 for the authority but the Court did not sit on this date. It came up next on 10th June 2022 and the erudite counsel initially said he found an authority but decided to drop the issue and, on the prompting of the Court, cited Unowa Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 550, B-E. The erudite counsel on the other side did not reply. Thereafter, the case was adjourned to 15th July 2022 for judgment. As the judgment was not ready on this date, it was adjourned sine die. Having become ready, date for its delivery was ordered communicated to the erudite counsel to the parties.
Having got to this point, the next duty is summary of the WAs.
SUMMARY OF THE COUNSEL’S THEORIES OF THE CASE
A: Claimant’s Theory of the Case
Erudite HIGH CHIEF JOHN O. NSO franked the claimant’s theory of the case. The erudite counsel argued that, the claimant’s appointment was terminated because he failed to obtain Master’s degree within three years of appointment and that, the Federal University of Nudufu-Alike Ikwo (Establishment) Act 2015 [FUNAA] regulates the discipline of the claimant, which clothes the appointment with statutory flavour. On this, the erudite counsel cited Ofoelo v. NEP Plc (2006) 4 WRN 179 and others. The erudite counsel argued that, by Exhibits A&B, the claimant’s appointment is a permanent appointment and that; the regularisation took effect on 6th February 2015.
The erudite counsel argued that a statutory employment could only be terminated as provided by law and cited Olufeagba & Ors v. Abdulraheem & 3 Ors (2009) 12 SC (Pt. 11) 1 and another case. The erudite counsel submitted that SS. 16(1), 17(1) and 17(4)(a)-(d) of the FUNAA gives the three grounds of removal of the academic staff of the 1st defendant and that the Exhibit A [appointment letter] was issued in contemplation of these statutory provisions. Erudite counsel cited Idoniboye-Obu v. NNPC (2003) 2 SCM 103 and submitted that, there is nothing in the termination letter [Exhibit F] depicting that, the claimant was found guilty of any of the statutory grounds for termination. The erudite counsel argued that to make matters worse, the defendants failed to give a reason for the termination and was not afforded any opportunity to be heard before the termination and that, this was in flagrant disregard of the mandatory provisions of S. 17(1)(b) of the FUNAA, resulting in denial of fair hearing and thereby nullifying the termination. Erudite counsel cited Uka v. Irolo (2002) 14 NWLR (Pt. 786) 195.
The erudite counsel submitted that the reason for the termination could only be gleaned by inference from reference to 6th regular Council meeting of 21st December 2016, which mandated acquisition of master’s degree within three years of assumption of duty. Erudite counsel submitted that, as at the time of making the decision in 2016, the claimant was not heard whereas, as at the time the claimant assumed duty on 25th February 2015, there was nothing as such contained in the terms and conditions of appointment. The erudite counsel submitted that, this breached S. 17(1)(b) of the FUNAA and cited Citi Bank (Nig.) Ltd v. Ikediashi (2020) 13 NWLR (Pt. 1741) 337 at 366 that, parties are bound by the terms of their contracts. Erudite counsel cited Onwusukwu v. Civil Service Commission (2020) 10 NWLR (Pt. 1731) 179 that, since the defendants failed to comply with the laws in terminating the claimant’s statutory employment, the Court should come to the conclusion that, the employment was unlawfully terminated.
The erudite counsel argued that, the Court should also order the defendants to confirm the claimant’s appointment since he had been due and not confirmed since after two years in service. Erudite counsel cited S. 2.15 of the Staff Manual. The erudite counsel submitted that, this must be so because equity deems it, as done that, which ought to have been done. Erudite counsel also urged the Court to order reinstatement and cited Ifeta v. SPDC (2006) LPELR-32 WRN 1 (SC). Erudite counsel submitted that the defendants had no good reason to terminate the claimant appointment rather than being commended for starting the MSc even before the Council thought of making it a policy. Erudite counsel submitted that, this was communicated to the defendants who ignored it and that, the behaviour of the defendants in this instance was unfair and inequitable and repugnant to public policy. The erudite counsel submitted that, the circumstances of this case evokes good reasons for compensation and cited the unreported decision of this Court in Ogbonnaya v. Alex Ekwueme University delivered 19th May 2020 and rounded up by urging this Court to grant all the reliefs sought.
That ends the claimant’s theory of the case. I move to the defendants’ counter-theory.
B: The Defendants’ Counter-Theory of the Case
Erudite MICHAEL O. ODO franked the defendants’ theory of the case. The erudite counsel argued that in view of the undisputed facts of this case, three documents are germane: Exhibit A – Offer of Temporary Appointment [OTA]; Exhibit MO.1 [Staff Manual]; and S.178(4) of the FUNAA as identified by the erudite claimant’s counsel but the constructions placed on them defer. The erudite counsel pointed out that Exhibit provides that, the appointment would automatically lapse at the end of one year unless satisfactory report is received on the claimant and that; the claimant failed to meet qualifications and did not seek for renewal.
The erudite counsel argued that regularisation [Exhibit B] means only that, the claimant has assumed duty and does not supervene Exhibits A [OTA] and the MO.1 [Staff Manual] as it does not equate confirmation of appointment and referred to S. 2.14 of the Staff Manual. The erudite counsel submitted that, this is so because the instrument of regularisation still subjected the appointment to the Exhibit A making confirmation of appointment a distinctive milestone and that paragraph 6 of the AS actually supports this view. The erudite counsel submitted that, since the claimant resumed duty 06-02-2015, his temporary appointment lapsed 07-12-2015 and that, the issuance of termination letter to the claimant on 21-05-2018, was a mere surplusage since, the appointment had lapsed by failure to obtain the requisite qualifications.
The erudite counsel argued that, the deposition in paragraph 7 of the As that the regularisation is confirmation of satisfactory performance is false because, it is contrary to paragraph 6, which says that, the claimant resumed duty on 06-02-2015, which date was merely confirmed by the regularisation letter dated 15-12-2015. The erudite counsel argued that, this is because the regularisation could not have been based on satisfactory performance contrary to the conditions set out in Exhibit A and that, this is more particularly so because, as at 6/2/2014 when the regularisation took effect, the claimant had not even worked for a single day contrary to the deposition in paragraph 7 of the AS and that, as such, the Court is precluded from making a choice and cited Ashakacem v. AM Investment Ltd (2019) 5 NWLR (Pt. 1666) 447 at 460, A to the effect that oral evidence cannot supplant documentary evidence.
The erudite counsel submitted that since the claimant had not shown that another letter of appointment was issued him with different terms, the Court is bound to hold that, the employment ceased at the expiration of one year in accordance with the terms in Exhibit A, and that, the extra time he spent before issuance of the termination letter was by the benevolence of the defendants. The erudite counsel conceded the radicalization of labour laws in Nigeria by the interposition of international best practices but submitted that, international best practices support the manner of termination of the claimant’s employment, which had not been confirmed. The erudite counsel thereafter referred to paragraph 4(e) and Exhibits MO.2A&2B of the CA, which contained the evidence that, the claimant was originally not qualified because, he was on full time post-graduate studies at University of Nigeria [UNN], which he failed to disclose at the point of employment.
The erudite counsel submitted that, there is no international best practices that could overlook the fraudulent practice and that, the international best practices is either to suspend the programme or leave the job and that, once the concealed fraud is disclosed, the defendants have the right to terminate the temporary appointment without giving reason and even proceed to recover all monies erroneously paid the claimant, while he was in pursuit of the full-time post-graduate studies. The erudite counsel submitted further that, the implication of the scenario is that, there was no valid appointment obtained by concealment of pertinent information and the NICN could be used as instrument of perpetrating the fraud and unfair labour practice suffered by the defendants. The erudite counsel submitted that the terms the claimant’s temporary appointment with the defendants, being full time too were totally incompatible with the full-time postgraduate studies and thus, the full-time postgraduate studies was a gross misconduct and underperformance of his duties with the defendants.
The erudite counsel submitted that, by reason of this gross misconduct, the claimant did not receive good recommendation from his superiors. Erudite counsel referred to paragraphs 16-18 of the CA and submitted that, the claimant who wants the Court to exercise its equitable jurisdiction in his favour has soiled hands; and this Court cannot therefore grant his prayers. The erudite counsel argued that, though, the defendant’s reason given for the termination, is failure to obtain master’s within specified period, which the Court might want to investigate, it remains that, the defendants retained the power to terminate a temporary appointment summarily and relied on S. 2.20 of the Staff Manual because it does not oblige the defendants to give reason for terminating temporary appointment.
The erudite counsel argued that, the defendants decided to merely terminate without given reason instead of dismissing the claimant on fraudulent concealment of vital information which would have negative effects on his career and that, if the Court decides to foist the claimant on the defendants, on the ground that, the present reason is not justified, the defendants still retain the powers to dismiss the claimant on the fraudulent concealment later. The erudite counsel submitted that the stance of the defendants in terminating for a mild reason should rather be commended as international best practice. The erudite counsel argued that the position of the claimant in paragraph 18(b) of the AS that, failure to secure master’s is not part of the conditions of employment is not correct because Exhibits A & B stated clearly that the appointment was subject to all regulations and others to be made subsequently. The erudite counsel submitted that, the defendants lawfully terminated the appointment by paying one-month salary in lieu of notice. Erudite counsel argued that obtaining master’s within three years of resumption as Graduate Assistant [GA] is part of the conditions of service, referring to Exhibit MO.
The erudite counsel submitted that, contrary to the claimant assertion, the Council had the power to make rules as deposed in paragraphs 26-27 of the CA and made the three-year rule on 21-12-2016, which was in line with the National Universities Commission’s [NUC] Guidelines. The erudite counsel submitted that the claimant cannot pick and chose part of the initial agreement to rely on and that, the agreement was that temporary appointment terminates after a year. The erudite counsel submitted further that the disciplinary procedures contained in S. 3.3 of Chapter 3 of the Staff Manual and SS. 16(1)&17(1) of the FUNAA are for confirmed staff and as such, no procedure is spelt out for termination of temporary appointment and too, to termination by effluxion of time. Erudite counsel argued further that these provisions apply only to terminations based on misconduct or inability to perform. The erudite counsel submitted that, what is more, S. 3.3.6(i)-(iv) of the Staff Manual gives the University the powers to terminate all appointments by one-month notice or salaries in lieu, except that of a professor. Erudite counsel cited Dudusola v. Nigeria Gas Company Ltd (2014) FWLR (Pt. 713) 1902 at 1912, G on sanctity of contracts.
The erudite counsel stated that the termination letter indicated that salary in lieu of notice would be paid and thus complied with the contract between parties and the termination therefore proper and that, there was no denial of fair hearing. The erudite counsel argued that, the claimant’s erudite counsel’s argument that, he bagged the master’s degree 6 months after termination is mere appeal to sentiment because it was bagged in breach of contract and that failing to bag the master’s within three years was an indication of seriousness. Erudite counsel referred to paragraph 25 of the CA and finally signed off by urging the Court to dismiss the suit.
That being the end of the defendants’ counsel’s theory of the case, I move to the RPL filed in reply by the claimant’s erudite counsel.
C: The Claimant’s RPL
The erudite counsel argued that, the CA is filled with legal arguments and conclusions in violation of S. 115(1)&(2) of the Evidence Act [EA] and referred to paragraphs 4-7, 9-26 of the CA. On this erudite counsel cited Josien Holdings Ltd v. Lornamead Ltd (1995) 1 NWLR (Pt. 371). The erudite counsel replied after the one-year temporary period, there is thereafter implied contract between the parties and cited Campagne Generale De Geophysique Nig. Ltd v. Okparaveo Memorial Hospital Ltd (2011) LPELR-3995 (CA) 20—21 thereby creating permanent employment for allowing the claimant to spend extra three years before the waking up to terminate the appointment. The erudite counsel also replied that, the defendants are caught by estoppel and cited S. 169 of the EA and Aderonpe v. Eleran (2019) 4 NWLR (Pt. 1661) 141.
The erudite counsel replied that, the argument at paragraph 4.20 of the defendants’ WA misconstrued the phrase “during this period” to mean during the appointment, but that it actually meant during the one-year probation, and the claimant’s appointment was terminated after the one year that his appointment had become permanent. The erudite claimant’s counsel replied that, the claimant updated the defendants vide Exhibit D on his master’s/PhD programme and referred to paragraphs 8-10 of the AS and that, there is no conditions of service, which precludes the claimant from pursuing the postgraduate but only paid work or any other continuous work with a third party while being employed by the 1st defendant.
The erudite counsel submits that this therefore makes the issue of full-time postgraduate irrelevant. The erudite counsel submitted that, parties are bound by the terms of their contract and that no extrinsic evidence could override the terms of written contract and cited Larmie v. DPM & Service Ltd (2005) 18 NWLR (Pt. 958) 88 and submitted that, the accusation of non-disclosure lacks factual background because the defendants never complained during the duration of the employment that the claimant failed to perform because of the full-time programme and that was not the reason stated on the termination letter. The erudite counsel argued that, the public policy on this employment is that, the claimant pursued a master’s during the course of the employment and that, the defendants are not contending otherwise. The erudite counsel threw the argument of full-time study without defining the parameters to identify what is meant by full-time to warrant interference of the postgraduate full-time with the employment in issue. Erudite counsel submitted that, could online studies be counted as full-time studies.
The erudite counsel submitted that, it is possible to undertake full-time postgraduate studies while in full-time academic employment without stress and that the defendants are estopped from complain since they enjoyed the claimant’s services without complaint and cited Hydro-Quest (Nig) Ltd v. Bank of the North Ltd (1994) 1 NWLR (Pt. 318) 41 and signed off the RPL.
That being the end of the WAs, I come to my decision to settle the dispute in finality. I have carefully read all the processes in the file and digested their contents. I also carefully read the WAs and digested their contents as is evident in my summary above. I have taken full cognisance that this is a suit commenced by OS. I have therefore taken view of the laws relating to how to settle minor differences in evidence contained in affidavits and the facts that, in OS, affidavits are hybrids between evidence and pleadings. I have also read the pertinent authorities cited and did my further research to enable give my decision with conviction. I think, having fulfilled all righteousness, I am clean to undergo the sacred duty of rendering my decision on this case. Off I go.
COURT’S DECISION AND THE RATIONES DECIDENDI
The defendants’ answers to question 1 are two-pronged: that the appointment being a temporary appointment is terminable at will, only subject to one-month notice or payment in lieu; and that, the termination is justified because, the claimant concealed information from his employer. I will take the second aspect first, being pivotal and more complex.
The first point to take under this aspect is: whether the contract contained any clause that made full-time postgraduate studies an offence while an academic staff of the 1st defendant holds full-time appointment? The defendants relied heavily on paragraph 4 of the Exhibit A of the AS, which provides that:
“The appointment is a whole time appointment and no paid work or any other continuous work with parties outside the University may be undertaken without the consent of the University previously obtained in writing.”
The underlined phrases constitute the kernel of the issue. Now, is a student a worker? I think answering this question throws a lot of enlightenment on the resolution of this point. LinkedIn “A Comparison between a Student and a Worker” at https://www.linkedin.com [August 12, 22] offers the following illuminating assistance:
“A student is a person who is engaged in the activity of learning or acquiring skills to use in the future workplace. On the other hand, a worker is involved in producing something.”
It is clear from the foregoing that, a student is very much different from worker and what the pertinent paragraph 4 of the Exhibit A prohibited is taking paid work or any other continuous work with third parties while being an employee of the 1st defendant. The claimant did not take another employment with a third party while in employment with the 1st defendant. Hence, it follows that; full-time studentship was not an offence with the 1st defendant. No other provisions of the conditions of service and the FUNAA was cited to me as forbidden this. I have combed through them too and could not find one. That one is settled.
The 1st defendant did not make it an offence and, whether the University of Nigeria [UNN] made it misconduct is not the headache of the 1st defendant. I am therefore in agreement with the erudite claimant’s counsel that, full-time studentship for master’s is not incompatible with full time job of a lecturer in the university. This is more so, if one construes Exhibit F of the AS with Exhibit MO. 4 of the CA. The claimant had not been shown to absent himself from duty or to underperform. At paragraph 2 of Exhibit F of the AS, it was clearly stated that, the claimant was terminated for failure to obtain Master’s within three years of resumption at the 1st defendant, meaning that, he was to do the Master’s while working in full time with the 1st defendant. Exhibit MO.4 reinforced this view when it provides:
“The Governing Council at its 6th Regular meeting held on Wednesday, 21st December, 2016…resolved that henceforth any Graduate Assistant who fails to obtain additional qualification within a period of three (3) years of appointment shall have the appointment terminated.”
From the above, it is clear that, the 1st defendant expected that the Master’s be done while on full-time appointment, as GA and not otherwise. Both documents did not state that the Master’s must be obtained via part-time studies. They only insisted it must be obtained, by any means, I think! That issue is settled to finality that: the 1st defendant had no provision of the contract that forbids undergoing full-time studentship while on full-time employment with the 1st defendant, rather, it inferentially encouraged it by its insistence that, Graduate Assistants [GAs] obtained Master’s while in full-time employment. I so find and hold. They could only complain if the claimant was found wanting in his duties at the 1st defendant, and Exhibit B actually confirmed that he was doing very well in his duties and for that reason, he was regularised. Listen to Exhibit B in paragraph 1:
“Following your satisfactory performance at the interview held on 18th – 19th November, 2015, the Appointments and Promotions Committee (A & PC) at its 2nd Meeting held on 8th December, 2015, considered and approved the regularisation of your appointment as Graduate Assistant with effect from 6th February, 2015 when you assumed duty”
Be that as it may be, the next point under this issue of alleged misconduct in obtaining a master’s on full-time studentship is the connected issue of non-disclosure. The question is partly answered in the discussions above because, when an act is not regarded as contractual misconduct in the particular employment, it cannot amount to an issue, which must be disclosed and its non-disclosure cannot be misconduct. Or in the other way round, when it could not be said that something would have negative effect on the employment in issue, it could not be attached with the necessity of disclosure. Nevertheless, I noted that, in writing to the 1st defendant about undergoing a master’s degree, the claimant did not attach his admission letter for the programme and instead, attached a letter of confirmation from the UNN that he was actually undergoing the programme and the level of completion. This, the erudite defence counsel had posited is an indication that, he was hiding the fact of full-time postgraduate from the 1st defendant and the Court.
This might well be so but the important thing is that, he notified the 1st defendant of his postgraduate programme. At paragraph 12 of the CA, where the defendants reacted to paragraph 10 of the AS, that contained evidence of the notification, the defendants did not deny that they were so notified. Hence, this removes the need to prove receipt of the letter. The defendants received the letter and did not demand for the admission letter and after about three week, terminated the claimant’s appointment for failing to obtain Master’s within three years of assumption of duty and reaffirmed this reason in Exhibit H. Whether or not the claimant disclosed that his admission for the postgraduate was on full-time basis, apart from the reasons I have earlier given, is irrelevant. The relevant fact is that, the claimant notified them of the Master’s degree and, they claimed to know it was on full time before the termination, and when they terminated his appointment, they did not terminate for non-disclosure of full-time Master’s studentship, which they were aware of, but only for not obtaining this master’s within three years of assumption of duty. It simply means they waived the issue of non-disclosure – see paragraphs 4.17-4.18 of the defendants’ WA. Counsel’s admission binds his client – see Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822 (SC) 49-54, E-D.
The international best practices in this area of the law is encapsulated in two incisive articles by Addleshaw Goddard, “Employee’s Failure To Disclose Material Information To Their Employer Justified Summary Dismissal” at https://www.addleshawgoddard.com [August 11, 22] and Jacques van Wyk et el, “An employee’s duty to disclose information when applying for employment”, Werksmans Attorneys at https://.www.werksmans.com [August 11, 22]. The first relates to the British practice, while the other relates to the practice in Zimbabwe. Both examined topical cases in the two jurisdictions. A critical study of the cases in both articles suggest that, the duty to disclose is based on what is reasonably foreseeable as material factor that would help the employer to decide whether or not to employ and the lead, to investigate. They suggest that, an objective consideration of such non-disclosure must easily reveal that, it constitutes employment risk or cause for fear of potential injury to the employment immediately or in future. The second article posits that, the duty is essentially an ethical and equitable one, as distinct from contractual obligation.
It is noteworthy that, the erudite Goddard pointed out in respect of the Supreme Court’s case of Reilly v. Sandwell, reviewed in the first of the two articles, that:
“However, as Lady Hale noted, the case did not examine whether a dismissal for conduct that does not constitute contractual misconduct could be fair as “some substantial reason.” In order to avoid any ambiguity, on this subject, employers should be clear in their contracts and disciplinary policies where there is reporting obligation and the consequences of failure to give full and frank disclosure in such situation.”
In the second article the erudite authors revealed in the review of the Zimbabwean Labour Court’s decision in Ferreira Mainline (Pty) Ltd v. McWade & Ors that the issue of non-contractual nature of the duty to disclose was raised and the Zimbabwean Labour Court decided that, the duty was an ethical one and not contractual. Nevertheless, the facts of the case showed that, questions were twice directly asked on the circumstances of exiting the previous employment during the interview for the employment, on which the claimant dodged revealing the factual situation. This actually informed the decision therein and the issue of whether the duty was non-contractual was not really relevant and became obita. In the British case, the issue was not raised, but being the obiter dictum of the Supreme Court therein; it ought to carry more persuasive force.
But it is significant to note that, in both articles, the authors advised that, in order to avoid ambiguity, such issues should be made essential parts of the contract of employment. I think that is the correct view, supported by the British Supreme Court, which receives the benevolence of the National Industrial Court of Nigeria [NICN]. This I say because, it is a cardinal part of the law that, ambiguities in employment contracts are resolved in favour of the employees – Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [June 15, 22]. The first case, which examined the issue, though in obita, did not consider the contra proferentem rule. And in this particular case, there was no proof at all that, the claimant was ever asked any question about disclosure of information on the nature of the master’s programme during interview for the job, unlike in the Zimbabwean case, where at interview, the employee was directly asked twice the circumstances of his exit from the former job and he parried it.
The fact that the defendant knew before the termination that the claimant was doing a full-time master’s without disclosure and decided to terminate for another reason showed that, they have waived their right to come back to the issue – see Odua’A Investment Company Limited v. Talabi (1997) LPELR-2232 (SC) 88, A-D; Eze v. Okechukwu & Ors (2002) LPELR-1194 (SC) 15-16, B; Adeyemi v. Governing Council of Yaba College of Technology (1993) LPELR-128 (SC) 55, D-F and Nigerian Bank for Commerce and Industry v. Intergrated Gas (Nigeria) Limited & Anor (2008) LPELR-2016 (SC) 19-21, C-A. And the fact that, they terminated his employment for not having the same master’s within three years, apart from being somewhat a self-contradiction, is an implicit admission that, if he had had the master’s at that point, they would not have been bothered about whether it was full-time or part-time. The fact that, it took the promptings of the NUC to adopt the three-year post resumption at duty policy, showed that, it was originally foreign to the defendants. They sold out themselves as being interested in the master’s at all costs at that material time. They did not also prove any risk or injury the so-called non-disclosure constituted. When this is coupled with the absence of a contractual term forbidding it, absence of proof that such issue was raised at the interview and, the fact that, the master’s degree is even desirable for the benefits of the employment and the fact that, the claimant was not shown to derelict duty, the inference is that, there was no reasonable ground to justify the termination on ground of non-disclosure.
And what is more, the defendants have said they decided to lie about the real reason for the termination because, they did not want to dismiss the claimant, it follows that, apart from waiving the issue of non-disclosure, they must be tested on the reason given for the termination, and if it falters, the termination is liable to be set aside. This takes us to the second aspect of the 1st issue, which is: whether the defendants followed the proper procedures in terminating the claimant’s employment? Before disposing off the issue without much ado, let me touch on a preliminary point. The erudite defence counsel has argued that, the regularisation letter has no effect at all, other than acknowledgement of the claimant’s resumption of duty. The claimant’s counsel has contested this. This point looks tricky and complex because of the interposition of regularisation between the appointment and confirmation. Nonetheless, a document speaks for itself. Paragraph 2 of Exhibit B is pertinent:
“By this approval, your employment in the University is now a tenured and pensionable appointment in line with the extant laws and regulations of the University.”
Those are the words of the regularisation letter. Though, I agree, they must be construed in the context of other related documents by the law of incorporation by reference. But first, the words of the selfsame Exhibit B are paramount, where they are clear and unambiguous, and where they are ambiguous, by the doctrine of contra proferentem, they must be resolved in favour of the claimant-employee – see Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [supra]. Government of the Virgin Islands defined permanent and pensionable appointment in “What is a permanent and pensionable appointment?” at https://www.bvi.gov.vg [August 12, 22]:
“Permanent and pensionable appointments are appointments to an established position with a view of long –term employment and subject to pension benefits...”
With regard to the word “tenured” which preceded the phrase “pensionable appointment”, it has divergent definitions. It has been defined by Law Insider, “Tenured appointment Definition” at https://www.lawinsider.com [August 12, 22] as:
“…appointment of a person for a specified period, at the expiry of which the appointment shall automatically stand terminated, unless the appointment is renewed before expiry of the specified period.”
But in the context of a university, it has been stated in Raleigh News, “What is tenure and why do university professors get it?” at https://www.newsobserver.com [August 12, 22] that:
“Tenure is essentially lifetime job security at a university. It guarantees distinguished professors academic freedom and freedom of speech by protecting them from being fired no matter how controversial or nontraditional their researches, publications or ideas are.”
BestColleges, “Adjunct Professor vs. Tenured Professor” at https://www.bestcolleges.com [August 12, 22] says: “A tenured professor holds full-time position with job security at the college level.” From the foregoing, it is reasonable to conclude that, tenured and pensionable appointment in the sense of Exhibit B, which relates to a university system, could only mean a secured appointment. Tenured and pensionable appointment envisages a lifetime or long-term appointment, even if it would be subject to confirmation. Though, it would appear that, the idea of confirmation after an appointment had been made tenured and pensionable is, at the least, self-contradictory and superfluous.
A temporary appointment cannot be tenured or pensionable, except if the pension would take retroactive effects on confirmation, but such effect is not expressly stated herein. The implication is that, as it is in the instant case, if the appointment has become tenured and pensionable, and the essence of tenured and pensionable appointment in the university system, is to guarantee the freedom of speech needed for research and publications, it follows that, the tenured and pensionable appointment in this instance must enjoy the benefits of S. 17 of the FUNAA, dealing with the procedure of disciplining academic and senior staff of the university, which essence is security of appointment of lecturers and other senior staff of the university.
That the claimant’s appointment is no longer temporary is settled beyond disputation by paragraph 6 of Exhibit A [Offer Of Temporary Appointment], which provides clearly that: “As this is temporary appointment, it will not be pensionable unless and until it is regularized.” Having been regularised, it follows that: it is no longer temporary. You cannot be allowed to blow hot and cold in contracts. The contra proferentem rule takes this type of ambivalence in favour of the employee – see Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [supra]. The defendants are therefore estopped from relying on any clause to say the appointment is still temporary. Hence, the claimant’s appointment cannot be terminated without following due process of the law as laid down in S. 17 of the FUNAA. S. 17(1) of the FUNAA provides:
“If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University, other than the Vice Chancellor, should be removed from office or on grounds of misconduct or inability to perform the functions of his office Council shall –
(a) give notice of those reasons to the person in question;
(b) afford such person an opportunity of making representation in person on the matter to the Council; and
(c) take a decision to terminate or not to terminate the appointment….”
S. 17(8) now states that:
“Nothing in this section shall prevent the Council from making regulations for the discipline of staff and workers of the University as may be appropriate”
S. 17(8), when construed with S. 17(1) shows clearly that, the Council could only make regulations on the discipline of other staff than those specified in S. 17(1) of the FUNAA. The phrase, “as may be appropriate” shows that, the envisaged regulations, which Council could make on discipline are on the other staff not covered by S. 17(1) because it would be plainly inappropriate for the Council to make further regulations on an issue fully covered by a full-fledged statute. The plenary nature of the relationship between parent statute and subsidiary legislation, which the Council regulations would be, similar to the doctrine of covering the field, would not allow this.
Besides, an important cannon of interpretation is that, express mention of one thing excludes those not mentioned – FRN v. Osahon & Ors (2006) LPELR-3174 (SC) 80, B-D. S. 17(1) of the FUNAA 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 FUNAA 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 FUNAA on the discipline of 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.
The concomitance is that, the reference to other conditions of service on the issue of termination of the claimant’s appointment, which termination was clearly on ground of inability to perform the functions of his office, is otiose. S. 17(1) of the FUNAA fully covers inability to perform the functions of the claimant’s office. Inability to obtain master’s degree is painted as necessary to hold the office and is therefore, a form of inability to perform the functions of the claimant’s office. Besides, let me state clearly that an appointment cannot have statutory flavour and at the same time be common law appointment. The defendants conceded that the claimant’s appointment had statutory flavour. It is my view that, with the regularisation letter, the letter of Offer Of Temporary Appointment [Exhibit A] becomes spent, as per the power to terminate on notice [paragraph 10]. In fact, that is the tenure of paragraph 6 [supra] of Exhibit A itself, which says, upon regularisation, the appointment, in effect, becomes permanent. Once permanent, it is no longer subject to one-month notice or salary in lieu. I so find and hold.
Now, for the sake of completeness, the crux is: the effect of the right to terminate at will, the employment with notice or payment in lieu thereof, contained in Exhibit A [Offer of Temporary Appointment]. I have checked and truly found that, paragraph 10 therefore, provides such a clause, albeit as a form of punishment. But while it so provides, paragraph 3 of the same Exhibit A says, the appointment is subject to the Constitution of the University [which could only mean the FUNAA] and conditions of service. S. 17(c) of the FUNAA says termination is a form of punishment for misconduct just as paragraph 10 of Exhibit A. The FUNAA did not list any situation whereby termination could be made at the whims and caprices of the defendants with or without notice.
Thus, it means that, paragraph 10 of Exhibit A is inconsistent with S. 17(1) of the FUNAA, which provides that appointment could only be terminated by following due process as laid down therein. The specific mention of one thing negates the other thing[s] not mentioned – see FRN v. Osahon & Ors (2006) LPELR-3174 (SC) 80, B-D. It is certain that, the Exhibit A is a mere contractual document, while the FUNAA is a full-fledged statute of the National Assembly. The law is that, statutes can modify contracts [common law] and impose conditions between the parties – see Owner of the MV Arabella v. Nigeria Agricultural Insurance Corporation (2008) LPELR-2848 (SC) 33:
“It is now settled, that where statutory provision is in conflict with or differ from common law, the latter-common law, gives place to the statute…”
By incorporating the FUNAA into the offer of employment, the FUNAA becomes superior to any incongruous provisions of the Offer of Temporary Appointment [Exhibit A] and, such inconsistent provisions in Exhibit A must give way to the superior provisions of the FUNAA. They must become null and void. Hence, the provisions of paragraph 10 of the Offer of Temporary Appointment are therefore inoperative, null and void, especially after the regularisation. This is what is meant by employment with statutory flavour and, the law has been beautifully stated in PHCN Plc v. Offoelo (2012) LPELR-1971 (SC) 24, A-F:
“It is to be noted my lords, that in matters of termination of appointment of an employee whose employment is regulated by a statute directly or by Rules, Regulations, bye-laws etc, made pursuant to a statute, the service contract is said to enjoy statutory flavour which covers it with legal protection much more that [sic] that of ordinary master and servant relationship. In other words, the employee is invested with a status higher than the ordinary one of master and servant and his employment enjoys statutory flavour…”
It flows from the above that, an employment cannot at once and the same time be common law master-servant employment and also enjoy statutory flavour. By the direct incorporation of S. 17(1) of the FUNAA, which govern the conditions of service and discipline of the claimant in the category of the lecturers, the employment could not at the same time be a master-servant employment, after having been duly regularised, with the consequential effect of the regularisation, as earlier explained in this judgment. The doctrine of incorporation by reference, which makes the FUNAA part of the contract, nullifies any inconsistent provisions of the Offer of Temporary Appointment – see Iwuoha v. NRC (1997) LPELR-1570 (SC) 16, A-C on the effect of incorporation by reference. In a nutshell, an employment could not at the same time be master-servant and, summersault to have statutory flavour. Both streams of employment are mutually inconsistent and cannot cohabit. Once the defendants conceded that the employment has statutory flavour, and I have found it to be true, they could not turn round to say it is common-law employment.
Where such happens, as in the instant case, the contra proferentem rule resolves it in favour of the employee, who is considered the weaker party in the contract, by picking the clause that is favourable to the employee over the one pernicious to him in a situation of mutual exclusivity – see Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [supra]. I am aware of the law in Idoniboye-Obu [supra] and Fakuade v. OAUTH Management Board [supra] that, termination on notice is a signal to common law employment.
The decision is correct for what it decided, but the facts are not the same with this case. In this case, the claimant’s letter of appointment directly incorporated the FUNAA into the employment contract and made it applicable to the claimant’s employment. Hence, the defendants cannot blow hot and cold on the same issue of the status of the claimant’s employment – see SCOA Nigeria Plc v. TAAN & Ors (2018) LPELR-44545 (CA) 56, A-E. This is quite different from the situation where the letter of employment did not incorporate any statute or subsidiary legislation. Statutes override common law employment [contracts] – Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) LPELR-2848 (SC) 33, B-C. And what is even more, terminations after the expiry of probationary periods have even been declared null and void in Nigeria – see Taylex Drugs Company Limited v. Onankpa (2018) LPELR-45882 (CA) 38-39, A-B and, The Council of Federal Polytechnic, Ede & Ors v. Olowookere (2012) LPELR-7935 (CA) 22-23, D-B:
“…By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of ‘estoppel by conduct’ would operate to prevent the appellant from alleging and treating him as if he was still on probation. ‘Delay defeats Equity.”
The second authority is in relation to tertiary educational institution as the 1st defendant herein. In fact, the decision therein was based squarely on another decision of the Court of Appeal on similar issue in the Obafemi Awolowo University v Onabanjo. Having come across this authority, I have no option than to kowtow. The defendants are therefore estopped from contesting the status of the claimant as staff entitled to the benefits of the FUNAA. Let me touch on another preliminary point. The defendants did not even comply with the law relating to payment in lieu of notice, which is that, such payments must be contemporaneous with the terminations – see Chukwumah v. SPDC (Nig.) Ltd (1993) LPELR-864 (SC) 83, A-C. The effect in statutory employment, assuming it is a valid term therein, would be tantamount to non-compliance with mandatory procedure and, must be fatal to the termination – see Olufeagba case [supra] 37-38, C-E, on the effect of termination of statutory appointment without following procedure. S. 11(8) of the Labour Act supports the view that, payment in lieu of notice must be contemporaneous with the termination. That settles the preliminary points. I move to the issue of whether the reason for the termination is justified or rather: whether the three-year benchmark for obtaining master’s has retroactive effects?
I think I need not waste time on this. All the facts and arguments herein are exactly the same as those in the unreported decision of this Court in Suit No. NICN/ABK/02/2021 – Elekwa Amah Elizabeth v. Alex Ekwueme Federal University [delivered December 15, 2021] wherein this Court relied on the doctrines of international best practices and unfair labour practices, to hold that, a midterm-alteration of fundamental terms of employment, to have retroactive effect, was unlawful.
There is nothing to add here, which had not been treated in that suit. I adopt my reasoning and decision therein as applicable to this one. Based on this authority, I hold that the Council’s policy dated 17th January, 2017, which introduced the three-year-policy of compulsory obtainment of master’s within three years of resumption cannot have retrospective effect. The three-year deadline must coalesce at its anniversary on 17th January 2020. The claimant’s appointment, which was terminated March 30, 2018, was unlawfully terminated because, the claimant had up to 2020 to comply with the new policy. And what is more, the claimant earned his PhD in 2018 – see Exhibit G, which is well within time. I hold therefore, placing reliance on the said authority, that, the termination in this circumstance is a classical instance of unfair labour practices. Having got to this juncture, the fitting conclusion is that, the claimant succeeds on issue 1, while the defendants lose it. Unlawful termination was proved. I move to issue 2.
Issue 2 deals with the reliefs claimed. Declaration of unlawful termination and reinstatement are the two orders that are corollary to finding of unlawful termination of statutory employment – see Olufeagba & Ors v. Abdur-Raheem & Ors (2009) LPELR-2613 (SC) 40-41, E-B. I set aside the termination letter and consequently grant reliefs (a), (b) & (c) in full. I grant relief (d) to the tune N1,300,255.00 [One Million, Three Hundred Thousand, Two Hundred and Fifty-Five Naira] only per annum, which is the smaller of the two figures contained in the letter of appointment as annual salaries, being that, no explanation was offered to explain the N1,300,255.00-N1,447,767.00. This gives N108,354.58 [One Hundred and Eight Thousand, Three Hundred and Fifty-Four Naira, Fifty-Eight Kobo] only per month.
In line with the authorities of Taylex Drugs Company Limited v. Onankpa and The Council of Federal Polytechnic, Ede & Ors v. Olowookere [supra], which were not at my disposal as at the time I decided Elekwa Amah Elizabeth’s case [supra], more particularly so that, the Court of Appeal is the last court on labour matters, its decisions are the voice of the oracle on this issue. I grant relief (e). On the authority of Sahara Energy Resources Ltd v. Oyebola, unreported Court of Appeal decision in Suit No. CA/L/1091/2016 [delivered December 3, 2020], I grant relief (g) to the tune of one-year salary of N1,300,255.00 [One Million, Three Hundred Thousand, Two Hundred and Fifty-Five Naira]. Unfair labour practice is a constitutional issue.
The Constitution, as the most sacred law of the land cannot be treated like other statutes: it must be able to bark and bite to induce obedience in line with the ILO standard that, breach of fundamental labour standards must attract punitive and deterrent remedies. S. 254C-(1)(f) of the 1999 Constitution [as altered] creates a fundamental labour standard. Nonetheless, issue of reinstatement with arrears of salaries had been taken into consideration in reducing the two-year salary approved by the Court of Appeal in Sahara Energy Resources Ltd v. Oyebola [supra]. Since cost follows events, I grant cost of N150,000 [One Hundred and Fifty Thousand Naira] only, taking into consideration that, this is OS and that the case was just filed 2021 and that, part of the delay in hearing it to conclusion was occasioned by the claimant’s counsel. I equally grant one-month grace to comply with the Court’s judgment, failing which the judgment debts begin to attract 20% interest rate per annum in view of the inflationary trends in the country and the fact that the breach involved constitutional infraction of S. 254C-(1)(f) of the 1999 Constitution [as altered].
I have treated all germane issues and reliefs claimed. It is fitting therefore that the case must drive home to final rest unless appealed.
I reiterate the reliefs granted as follows:
(1) Relief (a) in full.
(2) Relief (b) in full.
(3) Relief (c) in full.
(4) Relief (d) to the tune of N1,300,255 [One Million, Three Hundred Thousand, Two Hundred and Fifty-Five Naira] only per annum, which equals N108,354.58 [One Hundred and Eight Thousand, Three Hundred and Fifty-Four Naira, Fifty-Eight Kobo] only per month.
(5) Relief (e) in full.
(6) Relief (f) to the tune of one-year salary of N1,300,255.00 [One Million, Three Hundred Thousand, Two Hundred and Fifty-Five Naira].
(7) Cost of N150,000 (One Hundred and Fifty Thousand Naira] only.
(8) Grace period of one month from the judgment, failing, which the judgment debts begin to attract 20% simple interest rate per annum.
The above is the Court’s judgment on this suit and it is entered accordingly today Friday the 12th day of August 2022 under the hand of the presiding judge.
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA