IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT OWERRI 

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA 

DATE:  AUGUST 14 2024                                 

SUIT NO: NICN/PHC/107/2013

BETWEEN:

MR. GEORGE C.KAIZER                                                             - CLAIMANT  

          

AND 

1.   IGNATIUS AJURU UNIVERSITY OF EDUCATION         - DEFENDANTS                                                                                                                                                                                                                                                                        

2.   THE GOVERNING COUNCIL, IGNATIUS AJURU

UNIVERSITY OF EDUCATION                                                                                           

3.   DR. ROSEMOND GREEN OSAH-OGULU

(ACTING VC IGNATIUS AJURU UNIVERSITY OF EDUCATION,

 RIVERS STATE) 

 

REPRESENTATION:

V. N Ihua-Maduenyi, Esq (with E, E Chioma, Esq.; C.W Amachree, Esq.)

–for the Claimant;

Isah Seidu, Esq. (with B.Sunday, Esq.) -for the Claimant;

 

JUDGMENT

 

1.             By a General Form of Complaint, with the accompanied frontloaded processes, dated and issued on 10^th July 2013, the Claimant, an Academic Staff of the 1^st Defendant University, and served last as Lecturer1 in the Dept., of Physics, instituted this suit against the Defendants, basically to challenge and seek redress for various alleged oppressive conducts meted against him at workplace, culminating in his interdiction and subsequent dismissal from service. The Claimant seeks against the Defendants, jointly and severally, the following reliefs: “

1.      A Declaration that the Claimant’s interdiction from office vide letter dated 26^th March, 2009 is unwarranted, unlawful and null and void.

 

2.      A Declaration that the recommendations of the Disciplinary Committee of the Defendants which received and considered the report of fact finding committee set up to investigate the Claimant, without affording the Claimant an opportunity to appear before it, is illegal, unconstitutional and amounts to a denial of the Claimant’s right to natural justice and fair hearing.

 

 

3.      A Declaration that the Claimant’s dismissal from office vide letter reference No. CE/PS/170/122, dated 29^th April 2009, is unjustified, unlawful, irregular and null and void.

4.      An Order directing the Defendants to immediately  reinstate the Claimant to his employment with the 1^st Defendant and to pay to the Claimant all his salaries, emoluments, and all employment benefits accruing and due to him from 1^st May 2009 until judgment and subsequently until he attains his mandatory retirement age or length of service.  

5.      An Order of perpetual Injunction restraining the Defendants whether by themselves, their servants, agents and privies from howsoever interfering with or curtailing any benefit derivable from the Claimant’s employment including his right to occupy the staff quarters (presently flat 18b Senior Staff Quarters, Rumuolumeni) allocated to him except in accordance with his conditions of service”.

 

2.             Upon service of the processes, the Defendants reacted with their defence processes, opposing the suit, viz- Counsel’s Memorandum of Appearance, State of Defence with other frontloaded defence processes, all dated and filed on 24^th October 2013. The suit suffered several adjournments and traversed various judicial Divisions of the Court. It first came up before His Lordship F.I Kola-Olalere J, then at the Calabar Division, later before His Lordship J.T Agbadu-Fishim J then at Yenogoa Division and was later re-assigned to this Court, then at Port-Harcourt Division, and finally concluded at Owerri Division before this Court.

 

3.             The matter was set down for denovo Hearing, wherein the Claimant who testified for himself as sole Claimant’s Witness (CW), adopted his two sets of Witness Statement on Oath; one of 10^th July 2013 and the Additional one of 3^rd July 2014, and tendered 14 sets of exhibits, admitted in evidence and marked as Exhs, C1-C14. CW was cross-examined and discharged. The Defendants testified through one Tamunoopu Minainyo (Director Council Matters  of the 1^st Defendant University), as sole Defendants’ Witness (DW), adopted his Witness Statement on Oath of 24^th October 2014, and tendered 19 sets of exhibits, admitted in evidence  and marked as Exhs. D1-D19. DW was cross-examined and discharged. Unfortunately, the Claimant died before the delivery of the Judgment after conclusion of trial.

 

CASE OF THE PARTIES

4.             Going by the pleadings of the parties and evidence led at the trial, the case of the Claimant is that he was employed by the 1^st Defendant University  in July 1989 as an Assistant Lecturer in the Department of Physics, and rose through the rank and later was promoted  to Lecturer 1 vide letter of Promotion 30^th October 2000(exh.C1), and  sometime in 2004 deployed to serve as Acting Head of Department of Computer Science, and in 2006 appointed Director of the newly created Directorate of Information and Communication Technology, but was recalled back to the Department of Physics to continue his teaching in July 2008. Claimant alleged that his recall was manipulated by the 3^rd Defendant, who had personal issues with him, and upon assuming office as the Provost facilitated the appointment of her husband to take over the said post of Director, Information and Communication Technology (ICT).

 

5.             It is also the Claimant’s case that when he was redeployed back to  teaching in his Physics Dept.,  the distribution list of  lecturers assigned various courses did not correctly reflect his name , as it was written as: George K.C,  instead of his  correct name: George C. Kaizer, and that he was also barred from teaching in the Dept. And that contrary to the allegation in a query issued to him, he actually delivered lectures and was diligent in performance of his teaching duties. That despite his innocence, he was interdicted (exh.C7), and was subjected to disciplinary hearing and later dismissed vide a dismissal letter dated 29^th April 2009 (exh.C8). Claimant concluded and prayed the court for reversal of the dismissal and payment of his entitlements among other injunctive reliefs.   

 

6.             On the part of the Defendants, the case of the 1^st Defendant University tallies with that of the Claimant on his employment history but differs markedly on the incidents culminating in his interdiction and dismissal from the services of the 1^st Defendant University. It is the case of the Defendants that the Claimant was dismissed from the employment with the 1^st Defendant for failure to carry out his primary duty of teaching in the Dept of Physics, despite repeated directives and warnings of consequence of failure to carry out such primary official duty of teaching assigned course for students in the Physics Dept after his redeployment from the ICT unit. That when the Claimant raised the issue that his name was not correctly written, it was corrected in the relevant correspondences, and also when he claimed that he was barred from teaching, it was officially clarified and confirmed to him that there was nothing like that, and he did not provide any evidence to back up such assertion. That due to the persistent failure/refusal to teach the assigned course, another lecturer was assigned to take over the subject so as not to leave a lacuna in the system (exh.C4). It is also the case of the Defendants that the Claimant has been a bad staff who had received several queries and reprimands on account of dereliction of duty (exhs.D3-D8, D11-13 and D15). That when his misconduct could not be tolerated, disciplinary process was invoked against him, starting with interdiction, and after being subjected to disciplinary hearing by the disciplinary panel whose findings and report indicted him,  the 1^st Defendant validly dismissed him. The Defendants concluded and urged the Court to uphold the dismissal.

 

COUNSEL SUBMISSIONS

7.             Upon conclusion of Trial, filing and exchange of Final Written Addresses was ordered, of which both counsel complied with. Learned Defendant’s lead counsel, Isah Seidu,Esq., in his Final Written Address (settled with Burabari Sunday, Esq.) filed on 7^th August 2023,raised a sole legal issue for determination in the Preliminary issue of law regarding Application for substitution of the deceased Claimant, who died in the course of the proceedings: Whether or not the deceased Claimant can be substituted and/or whether or not having regards to the reliefs sought per the Originating Complaint filed on 10-07-2013, the cause of action survived the deceased? Counsel also raised a sole issue for determination of the substantive dispute: Whether by the facts of the case and evidence led (pleadings& body of evidence; oral and documentary), the Claimant is entitled to reliefs sought? Also filed is the Defendants’ Reply Address, dated and filed on 25^th  August 2023, wherein counsel further expounded legal submissions on point of law in respect of the earlier issue raised in his Final Written Address.

 

8.             On the side of the Claimant, learned lead counsel for the Claimant, V.N Ihua-Maduenyi, Esq., in his Final Written Address, dated and filed on 18^th August 2023, raised a sole legal issue for determination, encompassing submissions on the preliminary issue regarding substitution of the deceased Claimant, viz:  Whether or not the Claimant/Applicant is entitled to the relief sought in the application?

 

9.             At the Adoption proceedings of 15^th May 2024, both counsel adopted their respective Final Written Addresses and adumbrated on the legal issues raised therein, while urging the court to uphold their respective standpoints on the disputed contentions of the parties. The matter was thereafter reserved for Judgment.

 

COURT’S DECISION

10.        I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged in their respective Final Written Addresses and Reply on point of law. I have also duly evaluated evidence tendered at the proceedings and observed the demeanour of witnesses who testified for their respective parties. The Claimant unfortunately had died after concussion of trial but before adoption of final Written Addresses and Judgment. May his soul find eternal rest, Amen! The Claimant’s legal representative had filed an Application for leave of the Court to substitute the deceased Claimant. Learned Defendants’ counsel however, objected on point of law, arguing that there is no cause of action or relief in the suit which survived the deceased Claimant, and thus, it is inappropriate to let-in the legal representative of the deceased Claimant’s estate in the suit.

11.        Both counsel had joined issues on the Application for the Substitution of the deceased Claimant, of which was reserved as Issue(1) in the Final Written Addresses, filed by both counsel, and additional submissions presented by both counsel, for and against the grant of the said Application for substitution of the deceased Claimant. Although this pending Application for substitution of the deceased Claimant, is reserved as issue (1), being presented as a preliminary issue, I would differ its Ruling until the outcome of the substantive suit between the deceased Claimant and the Defendants, so as to situate the Application for the substitution within the context of any pecuniary remedy that may accrue to the deceased Claimant in the event he succeeded in his claims, given the principle guiding substitution of deceased party, as to whether the suit could survive the deceased Claimant or not. On that note, I would proceed with the substantive suit.

 

12.        From the record, I find that the crux of the Claimant’s suit borders on unlawful dismissal arising from alleged failure/refusal to carry out official primary duty as a lecturer in the Dept of Physics of the 1^st Defendant University. The Claimant had based his case on three contested areas - that he was teaching students contrary to the allegation in the query issued to him; that his name was not properly written and not the person that was assigned the course; and that he was barred from teaching in the Dept of Physics, and therefore is not expected to disobey such order, as expressed in his response to the query. The Claimant asserted that his dismissal was faulty and not in accordance with due process, a he could not have been indicted by the disciplinary panel, upon which report his dismissal was anchored.

 

13.        On the other hand, the 1^st Defendant pointed that the Claimant was directed to teach a course in the Dept of Physics after his redeployment back to the teaching class from the ICT unit where he was earlier deployed to serve as a Director. And that the Claimant refused to teach the assigned course, hence he was issued with a query, also because when the Claimant stated that he was barred from teaching, the 1^st Defendant made effort to clarify such issue, which indicated that there was no such instruction.  Again, the Defendants’ evidence points to the fact that the Claimant did not teach assigned course in the Physics Dept, which made the HOD to make emergency ad hoc arrangement for another Lecturer to come and teach the students within the academic session (exh.C4).

 

 

 

14.        Angered by the development as reported by the HOD, the 1^st Defendant invoked disciplinary proceedings by first interdicting the Claimant (exh.C7), and subsequently set up a disciplinary hearing, which involved the Claimant among other interested parties. The disciplinary panel members performed their function and produced the report with their findings which indicted the Claimant and recommendations made for his punishment (exh.D18 and D19). The 1^st Defendant proceeded to dismiss the Claimant from its services (exh.C8).

 

15.        Setting the tone of the discourse, it is imperative to state that an over- arching position of the employer in employer-employee relationship is the power of the employer to discipline erring employee, and administer punishment ranging from suspension to dismissal- a ‘capital punishment’ in employment parlance. Once carried out within due process and rules of engagement, the disciplinary action stands, and it is immaterial that the employment is laced with statutory flavour. Importantly, there is no distinction between private employment governed by common law and that of employment with statutory flavour, when it comes to applying disciplinary measure at workplace, such that there is no privileged distinction, as in both employment status, validity of any disciplinary process is tested along the criteria of compliance with due process within the prevailing rules of engagement in the employment relationship and adherence to the fair hearing rule of natural justice. Failure to adhere to these precepts would taint the process, and be adjudged to amount to unfair labour practice and contrary to the provisions of S.254C (1) (f) of the extant Constitution (as Amended).

 

16.        The core contention of the Claimant is not just that fair hearing was not observed but that he is not the person involved in the alleged infraction of not teaching the course assigned, as a different name was indicated in the released course distribution list for lecturers, where the Claimant was addressed as K.C George as against George C. Kaizer, which is his correct name. But, from the record, the 1^st Defendant quickly clarified this issue, confirming that he is the person. As there is no other lecturer with such similar name, so as to cause confusion, in my view, such could even fall within the realm of the concept of misnomer, which is a wrong description of name of a known legal person. In misnomer, the person is known but merely giving wrong name, which can be corrected, and such misnomer does not relieve the known legal person of its arising legal responsibility associated with the person provided the wrong name is corrected as a mistake.  This is even a case of mis-arrangement of name.

 

17.        I have checked various correspondences tendered as exhibits in the casefile involving the name of the Claimant, and find that it is only in the said Lecturers’ teaching course distribution list (exh.C3), where his name was wrongly written as per arrangement of name, as all the names and initials therein belong to him. To that end, the submissions of the learned Claimant’s counsel, citing and relying on Esenowo v. Ukpo Ukpong [1996]6NWLR (Pt.608)611; Titilayo Plastic Industries Ltd v. Fagbola [2019]4NWLR (Pt.1691)88, on legal effect of arrangement of name, is not apt in the circumstance of this suit. I so hold.

 

18.        On the aspect of alleged dereliction of duty by refusing to teach assigned course in the Dept of Physics, it is contended for the Claimant that this is not true as he presented evidence of the teaching he did, and that he has been diligently teaching students. Both parties seem to be saying same thing without a common ground. It is the duty of the court to so resolve the contention of the parties. I have checked the subject which he said he taught the students and the one in the distribution list assigned to him, which is PHY411D in exh.C3, and find that he did not teach the course assigned to him, as another lecturer was co-opted to teach same, as shown in exhs. C2 and C4, tendered by the Claimant himself at the trial.

 

19.        The Claimant had also relied heavily on his purported ban from teaching physics upon his redeployment and directive to resume his primary duty of teaching in the physics department, after a stint in administrative duty at the ICT unit of the 1^st Defendant University. The 1^st Defendant joined issue with the Claimant on this his assertion providing a defence of why he did not resume his teaching duty at the school.  From the outset, the 1^st Defendant maintained that there was no such instruction (exh.C5), and the Claimant was also confronted with this position at both the disciplinary/investigative hearing and during cross-examination at the trial in court.

 

20.        Despite being a very relieving defence if it succeeds, as an employer who bars an employee from performing primary duty cannot turn around to indict the employee for dereliction of duty, surprisingly, the Claimant, beyond the bare assertion in his pleadings, did not present any evidence to buttress the veracity and reliability of such potent assertion as required in the court of law. Having not done so, leaves the only standing fact to be that of the Defendant who had evidently adduced that the Claimant unjustifiably refused/failed to perform assigned primary duty by the 1^st Defendant, his employer, as shown in express denial of the alleged restriction by the 1^st Defendant in exh.C5, also tendered by the Claimant  himself at the trial.

The exh.C5 reads:

21.        It is settled incidence of the employer’s duty to provide work to employee at workplace and the rule of employer-control of work schedule, that where an employee is assigned primary duty for which he/she was employed, and fails or refuses to perform same, such an employee cannot be heard that he/she had performed another duty which was not so assigned, unless the employer so wishes to condone same or the employee had defended same with justifiable reason when queried. From the record, I find that the various reasons offered by the Claimant, to justify his failure to teach the assigned course in the Physics Dept, based on the mis-description of his name, teaching another course in the university, and his being barred from teaching in the Dept, turned out not acceptable and justifiable.

22.        In the circumstance, I find that the Claimant failed to perform the responsibility of his primary duty as a Lecturer in the Physics Dept, and without offering justifiable reason when queried. That alone, calls for disciplinary measure against the Claimant, unless condoned. But it was not condoned, as query was issued to invoke disciplinary process (exh.C2) followed by interdiction (exh.C7) and setting up of investigative/ disciplinary panel hearings with adverse report recommending punishment based on findings made, which indicted the Claimant (exhs. D17, D18 and D19), and culminated in his dismissal (exh. C8).

The Dismissal Letter (exh.C8) reads:

 

23.        I find also that the disciplinary process hinted also in the exh.C8, could not be faulted as it followed due process and observed rules of fair hearing, in that the Claimant was queried, and he had also oral representation before an investigation committee as shown also in exh.D19, and he also received invitation from the disciplinary panel which he confirmed during trial. The outcome of the disciplinary process resulted in his dismissal, of which he challenges in this suit. I find nothing wrong or wrongly done or any breach of fair hearing or due process in the disciplinary process embarked on by the 1^st Defendant against its erring employee, the Claimant.

 

24.        I also find that even the Claimant’s alleged victimization by the 2^nd and 3^rd Defendants remains unproven, as no iota of credible evidence was laid by the Claimant as required by S.131 of the Evidence Act, to discharge the onerous burden of proof placed by law on him, in respect of what he asserted happened against him, orchestrated by the 3rd Defendant.

 

25.        In civil trial, cases are won and lost on the basis of preponderance of evidence and proved on balance of probability. Thus, where the weight of evidence put by a party in the proverbial scale of justice is too low, it cannot tilt the balance of the scale to the side of such a party, particularly the Claimant who approached the Court praying for reliefs. The case of the Claimant herein would therefore rise or fall on his ability or failure to establish that his dismissal is unlawful, which ties the consideration of the reliefs sought. It is also settled principle of adversary adjudication, that pleadings are not evidence, and any pleading not backed by evidence at trial goes to no issue, and is regarded as abandoned. This position was maintained by the Court in Olusanya v. Osinleye [2013] 7NWLR (Pt.1367)SC148@para.B-C, 171 para.D-E, wherein the Supreme Court held thus: 

Any pleading not backed by evidence goes to no issue and should be disregarded by the Court. Pleadings do not constitute evidence, and therefore where such pleadings is not supported by evidence oral or documentary, it is deemed by the Court as having been abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned.

 

26.         On the whole, the Claimant having failed to lay credible evidence in support of the averments of facts upon which his case anchors weakens its base foundation, which is fatal to the success of his case. In the circumstance, the Claimant’s case fails, and is hereby dismissed, and all the reliefs, having not been proved, are accordingly dismissed. I so hold.

 

27.        Back to the determination of the pending Application for Substitution of the deceased Claimant. Following the sad news of the demise of the Claimant, learned counsel filed an Application, vide a Motion on Notice dated and filed on 24^th July 2023 brought pursuant to Or.13 Rule 13(2) of the Rules of this Court, praying for “An Order of this Honourable Court substituting the Claimant, in the person of Dr. (Mrs.) Victoria Ewoh and granting the Applicant leave to prosecute this suit as Next of Kin of the late George C. Kaizer for the benefit of his Estate”. The learned Defendants’ counsel, however, opposed the Application on point of law, contending that the suit is not such as could survive the deceased Claimant. Both counsel were directed to raise the issue as a preliminary point in their Final Written Addresses, and the Application would be considered and determined in the Judgment, since hearing has been concluded at the point of demise of the Claimant. Ruling on the Application has also been earlier deferred to be delivered after the determination of the substantive suit, so as to determine whether there is any part of the reliefs sought which would succeed and could survive the deceased Claimant, so as to form the basis of the proposed substitution of the deceased Claimant by the legal representative of his estate. Having concluded the substantive suit, it is time to resolve the pending Application for Substitution of the deceased Claimant.  

 

28.        I note that substitution is the way forward in such circumstance of demise of a party in the course of litigation. In Shodeinde v. Lawal [2012] 9NWLR (Pt. 1304) CA 38@43, Paras.G-A,  it was held that “…If the action survives the deceased, the only proper order of joinder is that of his estate and any identifiable personal or legal representative will then be substituted for the deceased”. And it is common ground, as submitted by both counsel, and rightly so, that a substitution can only be premised on a suit having reliefs that could survive a deceased Claimant. See: Iroeche v. Izuogu [2020] 4 NWLR (Pt.1714)211@240, para. G, cited and relied on by the learned Defendants’ counsel, and Osasuna v. Osasuna v. Military Governor of Ekiti State (2001)18WRN 1 SC, cited and relied on by the learned Claimant’s counsel.

 

29.        I agree also with the submissions of the learned Claimant’s counsel, citing and relying on United Bank for Africa v. Ali Fadlallah (2021) LPELR-55184(CA), to the effect that “it is settled law that each case must be determined on its particular or peculiar facts and circumstances”.  On that note, the peculiar factual circumstance of this suit is that the Claimant already concluded his case before his demise and the reliefs he sought for, even if some or any could survive him, is also predicated on the success of the relief(s) in the suit.

 

30.        The Claimant’s case having failed entirely with the reliefs sought, left nothing to be inherited by his estate other than at any appellate review of this Judgment wherein the Claimant’s suit has been dismissed. In the circumstance, this Application having nothing to anchor on, also fails, and is hereby dismissed. I so hold.

 

31.        On issue of cost, although this suit has lasted long traversing from Calabar to Bayelsa, to PortHarcourt and to Owerri Divisions of this Court, with both parties expending costs, the basic principle guiding award of cost, is that ‘cost follows event’, such that the losing party compensates the successful party including the court, unless there are factors so considered to relieve the application of the general principle of ‘cost follows event’. 

 

32.        In my considered view, the peculiarity of the circumstances of this suit calls for departure from the general principle of award of cost, as the Claimant who approached the court to litigate his claims had diligently prosecuted his suit across various jurisdictions of this court spanning over 10 years, but died in the course of the proceedings, almost at the end towards the Judgment stage, and could not also be substituted by legal representative of his estate as he lost the entire suit, but which Judgment is based on the trial the Claimant personally participated in as the sole Claimant’s Witness (CW).  In the circumstance, I make no order as to Cost. I so hold.

 

33.        Judgment is entered accordingly.

 

 

 

HON. JUSTICE N.C.S OGBUANYA

PRESIDING JUDGE

14/08/24