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            IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

OLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 17th December 2024                             

SUIT NO: NICN/ABJ/366/2018

 

Between:

 

Dr. Zorte Nbogana Maamaa                                                       -                       Claimant

 

And

1.        Bingham University

2.     The Vice Chancellor, Bingham University                                                    

3.     Professor Dul Johnson                                                                                  Defendants

4.     The Registrar, Bingham University

                                                                                               

Representation:

Paul Atayi, with him, Matthew Israel for the Claimant

J. B. Danboyi, with him, L. A. Albert and P. P. Shanding

 

    JUDGMENT

The Claimant instituted this action through a Complaint filed on 20th December 2018 and his claims against the Defendants are as follows:

1.         A Declaration that the termination of the Claimant's appointment is mischievous, malicious, unwarranted, unjust, unlawful, null and void ab initio.

2.         A Declaration that the Claimant is entitled to be restored back to his position as a Senior Lecturer and also be assessed, after due process, and promoted to the position of Associate Professor in accordance with the 1st Defendant's Conditions of Service for Senior Staff, 2007, and approved guidelines.

3.         An Order directing all the Defendants to reverse the purported termination of the Claimant's appointment and immediately restore him to his rightful place at the University.

4.         An Order directing the 1st Defendant to pay to the Claimant all his outstanding arrears of salaries, emoluments and other entitlements.

5.         An Order directing the 1st Defendant to pay the sum of N25,000,000 as compensation or general, punitive and/or exemplary damages for breach of contract of service and the attendant trauma caused to the Claimant and his entire family.

6.         The cost of this action, including Solicitor's professional fees, assessed at N5,000,000.

 

The Compliant was accompanied with a statement of facts, list of witnesses, witness statement on oath of the claimant, list and copies of documents. The defendants filed their joint statement of defence on 8th March 2019. Filed along with the statement of defence is a list of documents. No list of witnesses and witness statement on oath were filed with the statement of defence. Also, copies of the listed documents were not frontloaded. On 26th October 2023, leave was granted to the defendants to file witness statements on oath of two witnesses which were filed on 10th March 2020.

 

This matter was initially being heard by my Lord, Hon. Justice O.O. Oyewumi, who is now a Justice of the Court of Appeal. On 26th October 2023, learned counsel for the claimant applied for the matter to be argued on record pursuant to Order 38 Rule 33 of the Rules of this court and the learned counsel for the defendants conceded to the procedure. Based on the consent of counsel for the parties, the Court ordered that the suit be argued on record and directed counsels to file their final written addresses. The written addresses of the parties were filed subsequently but before the date fixed for adoption, Hon. Justice O.O. Oyewumi was elevated to the Court of Appeal. That was when the suit was re-assigned to me. When the suit came before me on 18th October 2024, learned counsel for the claimant applied that the suit proceed as earlier scheduled to be argued on record pursuant to Order 38 Rule 33 of the Rules of this court. I granted the application and on 3rd December 2024, the final written addresses of the parties, as earlier filed, were adopted.

 

CLAIMANT’S CASE

The facts pleaded by the claimant in the statement of facts are as follows: The Claimant was offered a temporary appointment by the 1st Defendant as an Assistant Lecturer in the Department of Mass Communication on 23rd July 2009. The claimant’s appointment was confirmed by the 1st Defendant and it was later on converted from temporary appointment to permanent and pensionable appointment with effect from 27th July 2009 in a letter dated 9th February 2011. The claimant was also promoted by the 1st defendant, his last promotion being to the position of a Senior Lecturer with effect from the 1st October 2015 vide a letter dated 23rd September 2015. The Claimant was appointed as Acting Head of Department of Mass Communication in 2012 and he served in that capacity for over 2 years. The claimant was again appointed as the Acting Head, Department of Mass Communication in 2016 and he served in that capacity until his tenure ended in 2017. During his time as Acting Head of Department, the claimant made substantial contributions and achievements for the Department of Mass Communication.

 

On 1st October 2018, the claimant had completed the 3 years requirement in rank as a Senior Lecturer and he complied with all the requirements for his promotion to the next rank of Associate Professor. The Claimant was surprised when he received a letter of termination of his appointment on the 8th October 2018 from the 1st Defendant. Upon receipt of the letter of termination of his appointment, the claimant wrote a letter of complaint to the 2nd Defendant against the termination of his appointment but the 2nd Defendant refused to act on the Claimant's letter of complaint and by his conduct, the 2nd defendant showed that he has adopted or condoned the actions complained of in the letter. The letter of termination of the claimant’s appointment was predicated on a directive given by the 1st Defendant's Governing Council which considered a report against the Claimant. The report against the claimant was made by the 3rd Defendant who is the Dean, Faculty of Humanities, Social and Management Sciences, as a result of an incident at an interaction with academic staff. The report was given to the claimant at an interactive session held by an ad-hoc committee on the 18th August 2017 after the Claimant made a request for it and the claimant thereafter made his response to the report made against him, which he addressed to the Chairman Ad-hoc Committee.

 

The Claimant averred further that he was not given any query and no disciplinary measure was taken against him as provided in paragraphs 5.1 and 5.2 of the 1st Defendant's condition of service 2007. In the 10 years of service with the 1st Defendant, the claimant had never received any letter of warning or indictment whatsoever and he was not found wanting in any respect. The letter of termination of his employment is inconsistent with the provisions of paragraph 15.1.5 (ii) of the 1st Defendant's Condition of Service 2007. It is only the Senior Staff Disciplinary Committee that is vested with the power to make recommendation for the termination of the appointment of a senior staff after which the appointment of the senior staff may be terminated by the 2nd defendant on behalf of the Governing Council of the 1st Defendant and such senior staff may be paid his/her entitlements. The recommendation of the 1st Defendant's Governing Council for the termination of the claimant’s appointment is a misnomer and illegal.

 

The provisions of the 1st Defendant's Conditions of Service for Senior Staff 2007 was not complied with in the process resulting to the issuance of the letter of termination of appointment to the claimant. As at the time of the termination of his appointment, the claimant was already qualified to be assessed and be promoted to the position of Associate Professor but the 1st Defendant suddenly terminated his appointment without any just cause. Since the receipt of the letter of the termination of his appointment, the claimant has suffered societal ridicule, shame and embarrassment which is causing him emotional and psychological trauma. The purported termination of the claimant’s appointment was in bad faith, malicious and abuse of power by some principal officers of the 1st Defendant who view other courageous senior officers, like the Claimant, as obstacles and threats to their ambition. The Claimant is entitled to be restored to his position as a Senior Lecturer and also to be assessed and promoted to the position of Associate Professor in accordance with the 1st Defendant's Conditions of Service for Senior Staff 2007 and approved guidelines. The Claimant’s monthly net salary is the sum of N267,403.18 and he is owed salary arrears for the months of November and December 2017 by the 1st Defendant totaling the sum of N534,806.36.

 

The claimant frontloaded he following documents:

1.         The Claimant's letter of offer of temporary appointment dated 23rd July 2009.

2.         Letter of confirmation of the Claimant's appointment dated 26th March 2012.

3.         Letter of offer of permanent and pensionable appointment dated 9th February 2011.

4.         Letter of notification of promotion dated 23rd September 2015.

5.         Letter of special assignment dated 13th September 2012.

6.         Letter of appointment as Acting Head, Department of Mass Communication dated 10th February 2016.

7.         Letter of notification of the Claimant's end of tenure as Head of Department dated 20th February 2018.

8.         Letter of termination of the Claimant's appointment dated 28th September 2018.

9.         Claimant’s letter dated 10th October 2018 and addressed to the 2nd Defendant.

10.       Prof. Dul Johnson’s report against the Claimant to the 2nd defendant.

11.       Internal memo dated 21st August 2017 from HOD, Department of Mass Communication to Chairman, Adhoc Committee.

12.       Copies of the Claimant's pay slips for the months of September 2017 and June 2018.

 

DEFENCE

In the joint statement of defence of the defendants, they admitted the averments in paragraphs l, 2, 3, 4, 5, 6, 7, 8, 9, 10, I l, 12, 13 and 14 of the statement of facts but denied the averments in paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 to 38 of the statement of facts. The response of the defendants to the allegations of the claimant is as follows: The office of the 2nd Defendant received a complaint from the 3rd Defendant wherein allegations of insubordination and other allegations were made against the Claimant who was the Head of Mass Communication Department of the 1st Defendant at the time. Following the complaint, the 2nd Defendant set up an Ad-hoc Committee of the Senior staff Disciplinary Matters to investigate the case and proffer solutions in line with the 1st Defendant's conditions of service. The Committee is to investigate the allegation of alteration of results of one Miss Chimezie Grace Ngozi without observance of due process by the Claimant as well as incidence of insubordination by the Claimant during an interview with a resource person on the 21st June 2017. The Claimant was invited to appear and indeed appeared before the Committee on Friday 18th August 2017 and he interacted with the Committee. The Claimant was given opportunity to defend himself and while doing so, he submitted written submission to the committee dated 21st August 2017. The Committee also interacted with all stakeholders as well as the Claimant in respect to the allegation of changes in the academic transcript of Miss Chimezie Ngozi Grace. During the interactions, it was found that the Claimant had subverted due process when he altered the academic transcript of Miss Chimezie Ngozi Grace without approval of the Dean and Senate as required by the 1st Defendant's laws and guidelines. All academic transcripts of the 1st Defendant are required to be considered and approved by the Senate and Academic Office before they can be issued to any student but that was not done in the case of Miss Chimezie Ngozi Grace. The Claimant did not offer any reasonable explanation to the alterations and why due process was not followed in altering the transcript of Miss Chimezie Ngozi Grace.

 

The committee also considered and investigated the allegation of act of insubordination by the Claimant and the Claimant was found to have failed to obey the directive given to him while his superior was being interviewed but rather chose to sit with the 3rd Defendant who was the Chairman of the interview session. The claimant did give reasonable explanation to the allegation of insubordination but only pleaded with the committee to temper justice with mercy in the event the committee finds him wanting. The Committee, in the course of its assignment, observed that the Claimant by his conduct while under the employment of the 1st Defendant is killing the 1st Defendant's Mass Communication Department as he tries to block the employment of anyone that wants to come into the department. The Committee found the claimant guilty of gross misconduct and insubordination and recommended the termination of the claimant’s employment to the Senior Staff Disciplinary Committee of the 1st Defendant.

 

Upon the receipt of the Ad-hoc Committee's report, the Senior Staff Disciplinary Committee in its meeting held on 25th September 2018 considered the report of the Ad-hoc Committee concerning the allegation and findings against the Claimant and other staffs. The SSDC also invited the Claimant and gave the claimant opportunity to defend himself. The Claimant presented documents and made oral submissions before the SSDC and pleaded with the SSDC to tempers justice with mercy in the event he is found wanting. The SSDC upheld the findings of the Ad-hoc Committee and recommended the termination of the Claimant's employment. The 1st Defendant acted on the recommendation of the Committees and terminated the employment of the claimant vide a letter dated 28th September 2018. The Claimant was fully aware of the circumstances leading to the termination of his employment. The claimant was invited by both the Ad-hoc committee and the SSDC, he appeared before the committees and he was given opportunity to respond to all allegations levied against him. The termination of the Claimant's appointment with the 1st Defendant was done in full compliance with the 1st Defendant's laws and conditions of service.

 

DOCUMENTS

Although the defendants filed a list of documents, none of the documents was frontloaded. Counsels for the parties subsequently forwarded some documents to the court. While counsel for the claimant forwarded the 1st defendant’s University Law 2003 [as amended September 2015], counsel for the defendants forwarded the report of the Ad-hoc committee on Senior Staff Disciplinary matters and the report of the Senior Staff Disciplinary Committee.

 

WRITTEN ADDRESSES

The Claimant’s Final Written Address was filed on the 16th day of February 2024. Four issues were submitted for the Court’s determination. I have considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Claimant. I do not see the need to rehash the contents herein. However necessary reference will be made to them in the course of this judgment.

 

The Defendants’ Final Written Address was filed on the 20th day of March 2024. Two issues were submitted for the court’s determination. I have considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Defendants. I do not see any need to rehash the contents herein. However necessary reference will be made to them in the course of this judgment.

 

DECISION

Order 38 Rule 33 of the Rules of this Court permits trial on records where parties, at the close of pleadings, agree or consent to adopt the procedure. The procedure in trial on record is that the parties do not call witnesses or evidence but the parties rely only on the pleadings and the frontloaded documents or exhibits and thereafter file written addresses on the basis of the documents on record. The parties in this suit having consented to the procedure, this suit will accordingly be determined on the basis of the pleaded facts and frontloaded documents only.

 

The claimant was appointed by the 1st defendant on 23rd July 2009 as a Lecturer in the Department of Mass Communication and he worked with the 1st defendant until he was informed in a letter dated 28th September 2018 that his appointment has been terminated. In the letter of termination of the claimant’s appointment, the claimant was informed that the Council of the 1st defendant, at its 48th regular meeting held on 27th September 2018 considered a report against the claimant and directed that the claimant’s appointment be terminated. The claimant was further informed that his appointed was terminated with effect from 2nd October 2018. The main complaint of the claimant in this suit is the termination of his employment and it was the reason he sought the 1st claim on the Complaint wherein he sought the court to declare the termination of his appointment unjust, unlawful, null and void.

 

A careful reading of the averments of the claimant in his statement of facts show that the complaints of the claimant against the termination of his appointment are basically that the provisions of the 1st Defendant's Conditions of Service for Senior Staff 2007 was not complied with in the process resulting to the issuance of the letter of termination of his appointment. The claimant’s specific complaints of non-compliance with the 1st Defendant's Conditions of Service for Senior Staff 2007 are these:

i.                    That he was not given any query.

ii.                 That the disciplinary measure was not taken against him as provided in paragraphs 5.1 and 5.2 of the 1st Defendant's condition of service 2007.

iii.               That the letter of termination of his employment is inconsistent with the provisions of paragraph 15.1.5 (ii) of the 1st Defendant's Condition of Service 2007.

iv.               That it is only the Senior Staff Disciplinary Committee that is vested with the power to make recommendation for the termination of the appointment of a senior staff after which the appointment of the senior staff may be terminated by the 2nd defendant on behalf of the Governing Council of the 1st Defendant.

 

See paragraphs 27, 29, 30, 31 and 32 of the statement of facts. It is clear that all the allegations the claimant made against the termination of his appointment are founded on the terms of the 1st Defendant's condition of service 2007. In such a case where a claimant premised his allegation of wrongful termination of employment on breach of terms of the condition of service, producing the condition of service before the Court is a foremost condition which the claimant must satisfy to enable the court to effectively determine the case. Although the claimant pleaded the 1st Defendant's condition of service 2007 and listed it as one of the documents he will rely on in this suit, he failed to frontload a copy of the document. The defendants too pleaded the 1st Defendant's condition of service but did not frontload a copy of it. I have mentioned earlier that the claimant’s counsel forwarded the 1st defendant’s University Law 2003 to the Court. This document was not pleaded by the claimant nor did he found his case on it. The document is not the 1st Defendant's condition of service 2007 which the claimant pleaded and relied upon.

 

The 1st Defendant's condition of service 2007 upon which the claimant based his complaint of wrongful termination of his appointment is not produced before the Court and in the absence of the condition of service 2007, there is nothing placed before the court with which to determine the claimant’s allegations of non-compliance with the condition of service 2007 in the termination of his appointment. The court is left without the working tools with which it can consider the case advanced by the claimant as to whether or not there was breach of the condition of service by the 1st defendant in the termination of the claimant’s appointment. This Court cannot speculate on the content of a document not produced before it. In addition, the 1st Defendant's condition of service 2007 is not one of the documents which this court is entitled to take judicial notice of in Section 122 [2] of the Evidence Act 2011.

 

It is trite that where a party fails to produce a document he pleaded, the presumption is that there is no such document or that the pleading concerning the document has been abandoned. See ANSA vs. ISHIE [2005] 15 NWLR [Pt. 948] 210 at 225; REGISTERED TRUSTEES, R.C.C.G. vs. BANKOLE [2011] 1 NWLR [Pt. 1227] 40 at 58-59. Accordingly, by his failure to produce or frontload the document, the claimant is deemed to have abandoned his reliance on the 1st defendant’s condition of service 2007. Without the condition of service, the court cannot assume that the allegations made by the claimant, upon which he wants the termination of his appointment declared wrongful, are founded on provisions of the condition of service. Consequently, there is a total failure by the claimant to show that the termination of his appointment was done in breach of any provision of the 1st Defendant's condition of service 2007. The implication is that the claimant’s claim that the termination of his appointment was wrongful or unlawful, null and void is not sustainable.

 

The claimant also appears to say that the termination of his appointment was done without any just cause and it was done in bad faith. See paragraphs 34, 36 and 37 of the statement of facts. It is trite that the condition of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms of the condition of service. See OVIVIE vs. DELTA STEEL CO. LTD. [2023] 14 NWLR [Pt. 1904] 203 at 226; AJI vs. CHAD BASIN DEVELOPMENT AUTHORITY [2016] All FWLR [Pt. 824] 175 at 190. Since the claimant failed to establish any breach of the 1st defendant’s condition of service 2007 in the termination of his appointment, the question whether or not there was just cause for the termination of his appointment becomes immaterial. 

 

Reliefs 2, 3 and 5 sought by the claimant are ancillary claims and they can be considered only when the declaration sought by the claimant in relief 1 succeeds. The obvious consequence of the claimant’s failure to establish the claim in relief 1 is that reliefs 2, 3 and 5 have also not been established.

 

In relief 4, the claimant sought an order directing the 1st Defendant to pay him all his outstanding arrears of salaries, emoluments and other entitlements. This claim appears to cover the period from the time the claimant’s employment was terminated by the 1st defendant up to date. Having failed to establish that his employment was wrongfully terminated, the claimant is not entitled to any salary from the date of termination of his employment.

 

In paragraph 39 and 40 of the statement of facts, the claimant pleaded that he is owed salary arrears for the months of November and December 2017 by the 1st Defendant and that his monthly net salary is the sum of N267,403.18. The amount owed to him for the two months is the sum of N534,806.36. The claimant’s appointment was terminated in September 2018. That is to say the unpaid salary being claimed by the claimant was owed to him before his appointment was terminated. The response of the defendants to these averments of the claimant is contained in paragraph 25 of the statement of defence where the defendants merely averred that the claimant’s claim is frivolous, lacking in merit and should be dismissed. The defendants did not deny the fact that the claimant’s monthly salary was the sum of N267,403.18 and also did not deny the fact that the claimant was owed salary for the months of November and December 2017. When the claimant alleged that his salary for the months of November and December 2017 were not paid by the 1st Defendant, it is the duty of the defendants, if they had paid, to categorically say so and produce evidence of payment to the claimant. In the absence of such averment and evidence of payment, the defendants are unable to refute the claim of the claimant. I find that the claimant was not paid his salary for the months of November and December 2017, and he is entitled to be paid.

 

In the result of the foregoing, the claimant failed to make out a case for the grant of reliefs 1, 2, 3, 5 and 6. These claims are accordingly dismissed. Relief 4 is granted only to the extent that the defendants are ordered to pay the claimant the sum of N534,806.36, being his unpaid salary for the months of November and December 2017. Cost of N200,000.00 is awarded in favour of the Claimant.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge