IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON MONDAY 6TH DAY OF MARCH, 2023

BEFORE HIS LORDSHIP: HON. JUSTICE S. OLUYINKA ADENIYI

SUIT NO: NICN/KD/09/2022

BETWEEN:

PROF. MOHAMMED SANI YAHAYA………………………………...CLAIMANT

AND

1.      THE REGISTRAR, KADUNA POLYTECHNIC

2.      THE SELECTION COMMITTEE, KADPOLY

3.      THE CHAIRMAN, GOVERNING COUNCIL,

KADPOLY

4.      THE EXECUTIVE SECRETARY,

NATIONAL BOARD FOR TECHNICAL

EDUCATION                                                                      

5.      THE PERMANENT SECRETARY,                                                       DEFENDANTS

FEDERAL MINISTRY OF EDUCATION

6.      THE HONOURABLE MINISTER,

FEDERAL MINISTRY OF EDUCATION

7.      KADUNA POLYTECHNIC

8.      THE HON. MINSTER/ATTORNEY GENERAL,

FEDERAL MINSTRY OF JUSTICE

 

J U D G E M E N T

The Claimant, at all material times, is a lecturer and the Head of Department of Crop Science at the Kaduna State University. The summary of his claim, as gleaned from the processes filed on 08/03/2022, to commence the instant Originating Summons, is praying the Court to interpret Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act, 2019. The Claimant contends that the Respondents’ interpretation of the said Act is wrongful and unreasonable. The Claimant contends further that his exclusion from the selection process of the Rector of Kaduna Polytechnic, the 7th Defendant, is unlawful.

2. On the basis of these essential facts, the Claimant prayed the Court for the determination of the questions set out as follows:

1.         Whether in view of the Provisions of Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, the Defendants have the powers to interpret and exclude the Claimant from attending the interview to the position of the Rector of Kaduna Polytechnic, given his qualification and teaching interaction in the Polytechnic System.

2.         Whether in view of the combined provisions of the said Section 8 of the Federal Polytechnics Act and the requirement set out in the Daily Trust advertorial of September 3rd 2021, the Defendant have the powers to dismiss the Claimant from attending the interview into the office of the Rector of Kaduna Polytechnic with a wave of hand.

3. Upon determination of these questions, the Claimant prays the Court for the reliefs set out as follows:

1.         A Declaration that in view of the provisions of Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, the Defendants have no powers to exclude the Claimant from attending the interview into the office of the Rector of Kaduna Polytechnic, having fulfilled the requirement enunciated in the said section.

2.         A Declaration that in view of the combined provisions of Section 8(2) (a) (i) of the Federal Polytechnics Amendment Act 2019, and the Daily Trust Newspaper advertorial of September, 3rd 2021, the Defendants have no powers to exclude the Claimant from attending the interview into the office of the Rector of Kaduna Polytechnic, having fulfilled the requirement enunciated in the said section.

3.         An Order of perpetual injunction restraining the Defendants from violating and contravening the provisions of Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, and must now call the Claimant to attend the said interview for the office of the Rector of Kaduna Polytechnic, same having not been published yet.

4.         An Order of perpetual injunction restraining the Defendant from violating and contravening the provisions of Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, and the Daily Trust Newspaper advertorial of September, 3rd 2021 and must not exclude the Claimant, having fulfilled all the conditions and requirements set out by the Defendants.

5.         An Order of mandatory injunction compelling the Defendants to comply with the provisions of Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, and the Daily Trust Newspaper advertorial of September, 3rd 2021 and must always act or do any official duty and conduct in accordance with the said section and requirements.

6.         An Order of mandatory Injunction reversing and setting aside all decisions of the Defendants relating to the interview or selection into the office of the Rector of the Kaduna Polytechnic having been done in the exclusion and deprivation of the right of the Claimant who had fulfilled all conditions set out on Section 8 (2) (a) (i) of the Federal Polytechnics Amendment Act 2019, and the Daily Trust Newspaper advertorial of September, 3rd 2021.  

To support the Originating Summons, the Claimant deposed to an Affidavit of twenty-nine (29) paragraphs, to which documents labelled as Exhibit A – Exhibit J5 respectively, were annexed; as well as his learned counsel’s written address containing legal arguments in support of the Originating Summons.

4. Upon being served with the Originating processes in this suit, the 1st, 2nd, 3rd and 7th Defendants, filed a Counter-Affidavit, deemed filed on 10/05/2022, containing thirty-one (31) paragraphs, to which several documents were annexed as exhibits, to oppose the Originating Summons. The Counter-Affidavit was also subjoined with learned counsel’s written address to oppose the Originating Summons. The 4th Defendant in turn caused a Counter-Affidavit to be filed to the Originating Summons, also deemed filed on 10/05/2022, to which is subjoined with her learned counsel’s written address in opposing the Originating Summons. The Counter-Affidavit of the 5th and 6th Defendants, deemed filed on 29/09/2022, was also subjoined with learned counsel’s written address.

The Claimant also filed separate Further-Affidavits on 25/10/2022, in response to the Counter-Affidavits filed by the respective Defendants.

I should note that learned counsel for the Claimant had informed the Court that the appointment letter had been issued to the Rector of the 7th Defendant. On 08/12/2022, the Court, heard the substantive suit, in lieu of hearing of the Claimant’s motion on notice for interlocutory injunction against the Defendants.

5. I have proceeded to appraise the facts deposed by the Claimant as well as those deposed in opposition by the respective Defendants. According to the Claimant, he was appointed as a lecturer in the Department of Agricultural Engineering of the 7th Defendant, in 1994 and he rose through the ranks to the position of a Chief Lecturer. The Claimant deposed further that sometimes in 2017, he was released on secondment from Kaduna Polytechnic, the 7th Defendant, to Kaduna State University for two terms and that after the expiration of the term of secondment in 2021, his services were retained by Kaduna State University.

6. The Claimant further deposed that he saw the advertisement for the post of a Rector of Kaduna Polytechnic in the Daily Trust Newspaper of 03/09/2022, and he applied for the said post on 12/10/2022; that he was not informed by the Defendants of the date scheduled for the interview but that he got the information that the interview had been scheduled for 11th and 12th January, 2022, when he visited the 1st Defendant; that upon further inquiries, he was informed by the 1st Defendant, who was also the Secretary of the Selection Committee, for the post, that he (the Claimant) did not fulfil the requirements of the provision of Section 8 (2) (a) (i) of the Federal Polytechnic Act, 2019 and that in spite of his interface with the 1st Defendant, he was excluded from participating in the interview.

7. The Claimant further deposed that he wrote a petition for a review of the wrongful process adopted by the Selection Committee to other Defendants where he alleged that the members of the Committee were discriminatory in the selection process. The Claimant alleged that the Defendants have vested interest in the selection of a Rector of the 7th Defendant and urged the Court to stop the Defendants from interpreting the said section of the 2019 Amendment Act based on their vested interest.

8. To further support his case, the Claimant annexed to his Affidavit, the following documents: (i) Letter of offer of appointment dated 26/09/1994 – Exhibit A; (ii) Letter of promotion to the post of Chief Lecturer dated 23/09/2011– Exhibit B; (iii) Correspondences relating to his tenure as Dean and secondment with the 7th Defendant dated 18/08/2014, 19/01/2018, 19/11/2019, 28/04/2021 – Exhibits C, D, E; (iv) Application for post of Rector, Kaduna Polytechnic dated 06/10/2021 – Exhibit F; (v) Copy of the Daily Trust Advert of 03/09/2021 – Exhibit G, (vi) Extract of The Federal Polytechnics (Amendment) Act 2019– Exhibits H and I; Copies of petition for reconsideration and request for stay of Council’s decision dated 20/01/2022 – Exhibits J1 – J6.

9. In the Counter-Affidavit deposed by Dr. Muhammed Sani Musa, the Registrar and Secretary of the Governing Council of the 7th Defendant, on behalf of the 1st, 2nd, 3rd and 7th Defendants, to oppose the Originating Summons, he denied the totality of the Claimant’s claim. It is deposed, inter alia, that the criteria for the post of the Rector as clearly stated in the advertisement in the Daily Trust and the Nation newspapers of Friday 3rd September, 2021 included that the applicant must be a Chief Lecturer in the Polytechnic sector, with at least five (5) years’ experience in that position and a proof of medical fitness from a recognized hospital.

10. It was further deposed that the Claimant did not provide evidence of medical fitness as required; that he did not possess the mandatory minimum five years’ experience in the position of Chief Lecturer in the Polytechnic sector as he had only four years and four months experience in the Polytechnic sector and that he had transferred his service to Kaduna State University as a Professor of Kaduna State University. It was denied that the Defendants were irrational, unreasonable or had vested sinister antics in the selection process or that the Defendants were discriminatory towards the Claimant or any of the applicants.

11. The 1st, 2nd, 3rd and 7th Defendants equally annexed the following documents as exhibits in support of the defence namely: (i) Analysis of the applications for the post of Rector in line with the Federal Polytechnics Act as Exhibit KPT1, (ii) Correspondences relating to Claimant’s secondment with the 7th Defendant as Exhibits KPT2 – KPT6, (iii) Correspondences relating to Claimant’s application for transfer of service and appointment  

as professor at Kaduna State University as Exhibits KPT7, KPT7A and KPT8

respectively.

12. By the deposition made in paragraph 3 (c) of the 4th Defendant’s Counter-Affidavit, the powers vested in the National Board for Technical Education include accreditation and supervision of academic programmes in all Technical and Vocational Education and recommendation of the establishment of Polytechnics and Monotechnic. It was deposed further in paragraphs 3 (u), (v) and (w) of the Counter-Affidavit that it is not the responsibility of the 4th Defendant to screen applications of applicants and to conduct interviews; that the 4th Defendant did not participate in the screening and interview of the applicants. It was also deposed that the extension of the tenure of the Acting Rector, one Suleiman Umar, by the Council of the 7th Defendant, was contrary to the express provision of Federal Polytechnics Act 2019 and thereby in violation of the said Act. It was further deposed that the 4th Defendant had taken reasonable steps to ensure that the interview process is not marred in controversy and therefore not liable for the actions of the 1st, 2nd, 3rd and 7th Defendants.

The correspondences of the 4th Defendant and one Barka Bitrus A. Esq., with the Permanent Secretary, Federal Ministry of Education (5th Defendant) were respectively annexed to the 4th Defendant’s Counter-Affidavit as Exhibits NBTEA, NBTEB and NBTEC.

13. The 5th and 6th Defendants equally denied the entirety of the allegations of the Claimant and deposed, particularly in paragraphs 10, 11, 21 and 24 of Counter Affidavit that as at the time the Claimant applied for the post of Rector, the Claimant was not in the Polytechnic sector as provided by the Federal Polytechnic (Amendment) Act 2019. The 5th and 6th Defendants contend that the Claimant had transferred his services from the 7th Defendant to Kaduna State University and thereby did not satisfy the requirement of the Federal Polytechnic Act as the Claimant was not in the Polytechnic sector when he applied for the post of Rector of the 7th Defendant. Also annexed to the Counter-Affidavit are Exhibits FME1, FME2, FME3, FME4, FME5-FME5B, FME6, FME7, FME8 – FME8A and FME9, that is: The Daily Trust Advertisement of 03/09/2021; Analysis of the application for the post of Rector; Correspondences of the Claimant’s secondment and transfer of service with the 7th Defendant.

14. In the address filed to support the Originating Summons, the Claimant’s learned counsel, A. Abubakar, Esq., adopted the questions posed for determination in the Originating Summons as the issues for determination.

Learned counsel for the 1st, 2nd, 3rd and 7th Defendants, A. Ishaq Esq., distilled a sole issue for determination, that is:

“Whether in view of the provisions of Section 8 (1) and (2) (a) (i) of the Federal Polytechnics (amendment) Act 2019 and the advertorial made in the Daily Trust Newspaper of 3rd September, 2021, the Claimant has met the mandatory requirements for invitation to attend interview for the post of Rector of the 7th Defendant (Kaduna Polytechnic)?”  

In the opinion of the 4th Defendant’s learned counsel, Al-Ameen Abubakar Esq., the only issue that arises for determination in this suit is:

“Whether the Applicant is entitled to the grant of the relief sought, having regards to the circumstance of the case.”

Learned counsel for the 5th and 6th Defendants’, M. N. Mohamed Esq.,

adopted the issues formulated by the Claimant as issues for determination.

In determining the questions set down for determination by the Claimant in this suit, I should state that I have taken due cognizance and benefits of the totality of the written and oral arguments canvassed by learned counsel to support the issues they have respectively formulated and canvassed; and as I proceed with the judgment, I shall endeavour to make specific reference to their submissions as I deem needful.

15. In in his submission, learned Claimant’s counsel restated the trite position of law that in interpreting statutes, Courts are enjoined to apply ordinary meaning of the words used in the statute and that a Court is not allowed to read into an enactment words or sections which the legislature did not state as part of the statute. Learned counsel for the Claimant submitted further that the content and substance of Section 8 (2) (a) (i) of the Federal Polytechnic Amendment Act 2019 and the requirement for the post of a Rector as set out in the advertisement in the Daily Trust newspaper are plain and unambiguous and requires simple, literal and ordinary rule of interpretation.

16. Learned counsel further submitted that the word, “shall” connotes mandatory discharge of duty or obligation and contends that the Claimant was denied audience by the Selection Committee constituted by the Defendants for the applicants of the post of the Rector of Kaduna Polytechnic. It is learned counsel’s further contention that by excluding the Claimant from being interviewed for the said post, the Defendants contravened the provisions of Section 8 of the Federal Polytechnic Act.

I have also taken cognizance of the authorities of Buhari Vs Yabo [2018]

9 NWLR (Pt 1624) 197; INEC Vs Asuquo [2018] 9 NWLR (Pt 1624) 317;

Tabik Investment Ltd & Anor Vs GTB Ltd [2011] LPELR 313; Ugba & Ors

Vs Suswam & Ors [2012] LPELR 9726 cited by the Claimant’s learned

counsel in support of his submissions.     

17. Learned counsel for the 1st, 2nd, 3rd and 7th Defendants, in response, submitted that the provision of Section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019, is clear with regards to the qualification and requirement for appointment of Rector of the 7th Defendant and contends that the Claimant was not invited for the interview because he did not fulfil the requirements.

For the 4th Defendant, her learned counsel also submitted that the provision of Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019 on the prerequisites for qualification and appointment of Rectors in Polytechnics is clear, unambiguous and straightforward. Learned counsel further submitted that it is not the responsibility of the 4th Defendant to publish advertorial in National newspapers for vacancy of the post of a Rector as required by Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019 or the responsibility of the 4th Defendant to determine who participates in the interview or not.

18. Learned counsel for the 5th and 6th Defendants also restated the settled position of law that the Courts are enjoined to give literal interpretation where the statute is clear and unambiguous. Learned counsel submitted further that the requirements and qualification for appointment as Rector of Federal Polytechnics is clearly provided in the Federal Polytechnic (Amendment) Act 2019 and argued that the literal interpretation of Section 8 (2) (a) (i) of the said Act suggests that any applicant aspiring to be appointed as Rector of the Federal Polytechnic must be a Chief Lecturer within the Polytechnic sector. Learned counsel contends that the Claimant did not satisfy the mandatory requirement as he was not within the Polytechnic sector when he applied for the post.

19. In response to the Counter-Affidavits filed by the respective Defendants, the Claimant, on 25/10/2022, filed Further-Affidavits in reply to the Counter-Affidavits except for the Counter-Affidavit of the 4th Defendant. He maintained that the Defendants were discriminatory in the process of shortlisting the applicants for interview for the post of the Rector and that one Dr. Yahaya Ibrahim Saleh, who appeared on serial number 16 of the Table of Analysis for the post of Rector, Exhibit KPT1, was a staff of the 7th Defendant on leave absence at the Kaduna State University but was invited for interview. The Claimant alleged that the medical certificate mysteriously disappeared from the documents he submitted with his application. Learned counsel for the Claimant further argued that there are material contradictions by the Defendants in their Counter-Affidavits and urged the Court to evaluate and reject the contradictions in the depositions.

20. I should state from the onset that the issue at hand in this case is specifically on the interpretation of Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019), on the qualification of the person who may apply for the post of a Rector and not on the process of nominating suitable candidates for consideration for the post. Therefore, the depositions in paragraphs 3 (g) – (t) of the 4th Defendant’s Counter-Affidavit and exhibits attached thereto are irrelevant to the issue at hand. I waste no time to discountenance the entirety of the submissions of the 4th Defendant’s learned counsel relating to the process of appointing the Rector. In the same vein the entirety of the Claimant’s Reply and learned Claimant’s counsel on this issue is hereby discountenanced.

21. Now, the grouse of the Claimant’s case is basically that he was excluded from attending the interview for the position of the Rector of Kaduna State Polytechnic. According to him, having fulfilled the requirements as stipulated by the provisions of Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019, the Defendants have no powers to exclude him from attending the interview. The contention of the respective Defendants except the 4th Defendant is that the Claimant had transferred his service to Kaduna State University and did not fulfil the requirement of the said Federal Polytechnic Act, not being in the Polytechnic sector.

22. At this juncture, I consider it needful to state the distinction between secondment and transfer of service. Secondment is the temporary release of an officer to the service of another Government, approved body or any recognised international organisation or body for a specified period. Whilst transfer of service is the permanent release of an officer from one scheduled service to another or from one class to another. In public service, it is the movement of appointment of a pensionable employee from one public service organisation to another, which has reciprocal pension arrangements and has been declared a “Public Service” for purposes of preserving the employee’s previous pensionable service. 

23. I have taken liberty to reproduce Section 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019 for proper appreciation of the said provision. It states:

Section 8 (2)

“Where a vacancy occurs in the post of a Rector, the Council shall:

(a)            advertise the vacancy not later than six months to the expiration of the term of the seating Rector in at least two national newspapers in Nigeria, specifying the –

(i)                           qualifications of the persons who may apply for the post, which shall be a Chief Lecturer in the Polytechnic sector with at least five years’ experience on that position among other criteria,

(ii)                        terms and conditions of service applicable to the post, and thereafter, draw up a shortlist of suitable candidates for consideration…” (Underlining for emphasis).

24. It is well settled and as correctly submitted by respective learned counsel, the cardinal rule of interpretation of statutes is that, where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari-materia in order to resolve the ambiguity or avoid doing injustice. See Ogbuayinya Vs Okudo [1976] 6-9 SC 32; Abegunde Vs Ondo State House of Assembly & Ors [2015] LPELR-24588.

25. I will use the literal rule as my beacon of interpretation as the above reproduced provision is clear and unambiguous. By my understanding, to qualify for the post of a Rector, the person shall be (a) a Chief Lecturer; (b) must be in the Polytechnic sector; (c) must have at least five (5) years’ experience on that position.

Some of the documents tendered in evidence by the parties are similar. As clearly seen from the facts and evidence on record, the Claimant’s application for extension of his secondment to Kaduna State University (KASU) was not approved by the 7th Defendant and was advised to either resume duty on 02/05/2021 or transfer his services to KASU in line with the regulation. See Exhibits KPT5, KPT6, KPT7, attached to 1st, 2nd, 3rd and 7th Defendants Counter-Affidavit. The Claimant took the latter option and applied for a transfer of his service to KASU for an appointment as Professor in the Department of Crop Science. The 7th Defendant approval of the transfer of his service took effect from 02/05/2021. Exhibit KPT7A is the Claimant’s appointment letter at Kaduna State University dated 10/09/2020 whilst Exhibit KPT8 dated 20th May, 2021, is the 7th Defendant’s approval of the Claimant’s transfer of his service.

26. Now, what is the effect or implication of the transfer of the Claimant’s service to KASU? To put it differently, is the Claimant still in the Polytechnic sector having transferred his service to KASU and thereby qualified to apply for the post of a Rector as stipulated by Section8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019?

My answer to this poser is in the negative. By Exhibit KPT7A, a letter of appointment, the Claimant was offered appointment as Professor, Department of Crop Science, with KASU on terms and conditions that is distinct and separate from his appointment with the 7th Defendant.

27. On that premise, it is glaring that the Claimant was not ‘in the Polytechnic sector” as stipulated in the Federal Polytechnic Act, at the time he applied for the post of a Rector with the 7th Defendant. As it stands, the Claimant did not satisfy the conditions to apply for the post of a Rector. And I so hold.

Based on the foregoing therefore, the Claimant has failed woefully to place any evidence whatsoever before the Court to establish that he was wrongfully excluded by the Defendants from the interview by the Defendants. I so further hold.

In totality, my judgment is that the Claimant’s case is lacking in merit and in substance. It shall be and it is hereby accordingly dismissed. Parties shall bear their respective costs of this action.

SINMISOLA O. ADENIYI

(Hon. Judge)

06/03/2023

 

Legal representation

A. Abubakar Esq., for Claimant

A. Is’haq Esq., for 1st, 2nd, 3rd and 7th Defendants

Al-Ameen Abubakar for 4th Defendant

M. N. Mohammed Esq., for 5th and 6th Defendants