The lecturer, for over two decades, has been involved in a legal battle against the University of Uyo for the unlawful termination of his teaching appointment in 2002.
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 23RDJANUARY, 2020 SUIT NO: NICN/UY/33/2017
BETWEEN:
DR. INIH A. EBONG ...............................CLAIMANT
AND
2. MR. PETER JEROME EFFIONG
(REGISTRAR & SECRETARY TO COUNCIL DEFENDANTS
UNIVERSITY OF UYO)
3. THE GOVERNING COUNCIL
(UNIVERSITY OF UYO:
REPRESENTATION
Nsikak Effiong with Imabong Ukanna and Iberitam Abasi Ofon for the Claimant.
Inibong Okon with A.C. Ohia For Defendants.
JUDGMENT
This case has a protracted history. It was originally instituted sometimes in 2002 at the Federal High Court, Calabar with Suit no. FHC/CA/CS/58/2002. Upon the creation of Uyo division of the Federal High Court, the case was transferred to the Federal High Court, Uyo and given Suit no. FHC/UY/CS/144/2003. At the end of trial, judgment was entered for the Claimant after which an appeal was entered at the Court of Appeal, Calabar in Appeal No. CA/C/164/2012.The appeal was allowed and the action was transferred from the Federal High Court, Uyo to this Court for trial de novo. The case was registered as Suit No. NICN/UY/12/2015and came up for mention on 13thOctober, 2015. On 26th September, 2017 with the leave of court, the suit was withdrawn. On 22nd November, 2017 the Claimant refiled the Suit as Suit No. NICN/UY/33/2017 praying for the following reliefs against the Defendants as follows:
(a) A declaration that the stoppage of the Claimant's salary, the indefinite suspension of him from duties, and the purported termination of his appointment, by the Defendants without due process were malicious, ultra vires; and unlawful, and therefore null, void and of no effect whatsoever.
(b) A declaration that the indefinite suspension of the Claimant from duties for taking his employer to court was a flagrant breach of the Claimant's right of access to court, and is therefore unlawful, null and void and of no effect whatsoever.
(c) A declaration that the purported termination of the Claimant's appointment by the Defendants was actuated by malice, improper motives and bad conscience.
(d) A mandatory order compelling the Defendants, their servants, agents, assigns, and privies, howsoever known or called to withdraw forthwith their letter with reference number UU/REG/76/Vol.1/52 dated 28th March, 2002 terminating the Claimant's appointment and reinstate the Claimant to his duty post with effect from 28th March, 2002 when they terminated his appointment and, further, to restore the Claimant's salary that was stopped; withdraw forthwith their indefinite suspension of the Claimant from duties, and pay to the Claimant all the salaries, allowances and non-pecuniary entitlements accruing to him since 1st August, 2001 when his salary was stopped and from 28th March, 2002 when his appointment was wrongfully and unlawfully terminated.
(e) An order that the Defendants pay in addition to the Claimant the equivalent of his full annual salaries and allowances for the 2001/2002, 2007/2008 and 2014/2015 academic years, being the academic years the Claimant should have proceeded on Sabbatical leave in accordance with the terms and conditions of his employment, had the Defendants not unlawfully suspended him indefinitely from duties and terminated his appointment.
(f) An order that the Defendants approve and allow the Claimant to take and enjoy his accumulated annual leave of 30 working days a year from May, 1995 when he joined the service of the 1st Defendant, and his research leave of 26 days a year from May, 1995 when he joined the service of the 1st Defendant.
(g) N50,000,000.00 (Fifty Million Naira) damages for violation of the Claimant's fundamental right to fair hearing and right of access to court.
(h) N50,000,000.00 (Fifty Million Naira) aggravated damages.
(i) N100,000,00.00 (One Hundred Million Naira) exemplary damages.
The Claimant opened his case on the 16thOctober, 2018 and tendered fifty four (54) (Exhibits CW1 - CW54) and was cross examined on the 24thJanuary, 2019 and 5th May, 2019. On the other hand, the Defendants opened their defence on the 3rdJuly, 2019 and tendered three (3) documents as Exhibits (DW1-DW3) through a lone witness, Otu Etukudo, Esq. who was cross examined on 4thJuly, 2019 and 5th July, 2019. The matter was adjourned to October 23, 2019 for adoption of Final Written Addresses. And the Defendants' Written Address was filed on the 23rdNovember, 2019 while that of the Claimant was filed only on 5thNovember, 2019. Parties adopted their Final Written Addresses on 18th November, 2019.
The Case of the Claimant
The Claimant was appointed as a Senior Lecturer by the 1st Defendant by a letter No. UU/REG/DPA/SE/8/VOL.6/280 dated 8/3/1995 under the terms and conditions applicable in Federal Universities in Nigeria. The Claimant accepted the appointment by a letter dated 30/3/1995 and reported on 2/5/1995. The Claimant worked assiduously for the1st Defendant and rose to the position of the Head of Department of Theatre Arts, from April 23, 1997 to October 11, 2000 when he voluntarily resigned. The Claimant was promoted to the rank of Associate Professor of Theatre Arts by the 1st Defendant on December 28, 2001. However, problems began to set in between the Defendants and the Claimant for his refusal to belong to a group of colleagues who bitterly wanted to oust the Vice Chancellor of the 1st Defendant, Prof. Fola Lasisi from office and to compromise academic standards.
The Claimant who had never gone on annual leave since employment on 3rdSeptember, 1999, applied for deferment of his leave pursuant to the 1st Defendant's policy directive but the requests was refused for being against the policy of the 1st Defendant with an advise that leave should be taken as and when due and when the academic session will be in progress. Based on the above, the Claimant timeously applied for his annual leave on 11thJune, 2001, through the Head of Department of Theatre Arts, who recommended on 12thJune, 2001 and it was approved by the 2nd Defendant on June 22, 2001. The leave was to run from 1stAugust, 2001 to 12thSeptember, 2001 and was issued with a Leave Certificate endorsed by the Head of Department and the Registrar thereon. No sooner had the Claimant embarked on leave than the Defendants to stop the Claimant's salary on 31stAugust, 2001 with retrospective effect from 1stAugust, 2001, the day the leave commenced. On 12thSeptember, 2001, the Claimant resumed for work and notified the Defendants accordingly. The Claimant had prior to resumption for duties, written to the Defendants on 7thSeptember, 2001 to protest the stoppage of his salary. On receipt of this letter, the Defendants wrote to the Claimant accusing him of abandonment of duty and threatening to take severe disciplinary action against him to which the Claimant promptly responded by explaining the circumstances that led to his going on the annual leave for 2001.
Thereafter, the Defendants, in a manner suggestive of a premeditated act, belatedly constituted a panel to investigate the allegation of abandonment of duty by the Claimant on 15thOctober, 2001. The Panel absolved the Claimant of wrongdoing on the issue and recommended the reversal of the directive stopping his salary. But the Defendants not only refused to implement the recommendation of their own panel but suspended the Claimant indefinitely for instituting the said suit against them without their consent or resigning. This was in flagrant breach of the Claimant's fundamental right of access to court and without affording the Claimant an opportunity to defend himself or be heard.
The Claimant was, thereupon, invited to appear before the Senior Staff Disciplinary Committee over an allegation of "Walking out on a Panel of Investigation". Even though the letter of invitation was dated 25th January, 2002, it was served on the Claimant at 8.20a.m for him to appear by 10:00a.m the same day. The Claimant promptly reacted to this late invitation by writing Exhibit DW2 and also appearing in person to raise objections on the composition of the panel and was never invited to the Panel again. The Claimant pointed out the double standard for suspending him and placing him on half salary for challenging the action in court while nothing was done to the 2nd Defendant (also member of the panel) and other staff who instituted a case (Suit No. HC/438/1999) against the 1st Defendant.
It was the case of the Claimant that even though the Senior Staff Disciplinary Committee was not properly constituted as mandatorily required by law, it produced, a report of sort, which recommended that "Panel of Prof. E. D. Qkon should be reconstituted" on the basis that, "it could not give fair hearing to the appellants."
It is against this background that the Defendants without any notice, proceeded to terminate the appointment of the Claimant for "serious misconduct", even when he was allegedly investigated for "gross misconduct". To the Claimant, the stoppage of salary, suspension and eventual termination of appointment, did not comply strictly with the terms and conditions of services of employment as provided in Exhibit CW4.The Claimant has suffered hugely by the acts of the Defendants in material, financial and emotional terms hence this action with all the attendant reliefs.
The Case of the Defendant
The Claimant was until 28th March, 2002, an Associate Professor in the Department of Theatre Arts of the 1st Defendant. The case of the Defendants is that following the allegations of misconduct levelled against the Claimant, two investigative panels were set up at various times to investigate the conduct of the Claimant regarding:
a) Allegations of abandonment of duty from 1st August 2001 to September 12, 2001.
b) Allegation of sexual harassment of a female student.
The 1st panel absolved the Claimant on the ground that though, it was wrong by virtue of the Conditions of Service of the 1st Defendant for the Claimant, a Senior Academic Staff to proceed on leave while School was in session without any arrangement as to his students' academic activities; the Claimant couldn't be totally condemned since he had not gone for long vacation for some times. On the date of sitting of the 2nd panel to investigate alleged sexual harassment of a female student, the Claimant appeared before the panel and walked out on the panel.
It is the case of the Defendants that in accordance with the Regulations Governing the Senior Staff Conditions of Service of the 1st Defendant particularly Chapter 2.22, Defendants duly constituted a Senior Staff Disciplinary Committee to review the Reports of the two panels. The Claimant was duly invited to appear before the Senior Staff Disciplinary Committee by a letter dated 25th January, 2002 which the Claimant received and replied by a letter dated 28thJanuary, 2002. It is the further case of the Defendants that the Claimant appeared before this Committee only at its first meeting and abandoned the proceedings. The Senior Staff Disciplinary Committee stayed action on the allegation of abandonment of duty as a result of the action instituted by the Claimant challenging stoppage of his salary. As for the allegation of sexual harassment in which the Claimant walked out on the panel, the Senior Staff Disciplinary Committee of the 1stDefendant stated in its report that was admitted in evidence as follows:
"A panel of investigation headed by Prof E. D. Okon had been directed by the Vice-Chancellor to look into a report of sexual harassment against Dr. Inih Ebong. Dr. Inih Ebong walked out on the panel. He was earlier condoned for a similar act. This action constituted gross misconduct."
It was on the basis of the Report of all the panels set up to investigate the Claimant's acts of misconduct particularly the one he walked out on and subsequently the Senior Staff Disciplinary Committee which he shunned their subsequent meetings, that the 3rd Defendant in its 32nd meeting held on 27th March, 2002 decided that the Services of the Claimant was no longer required by the Defendants. Hence the termination of the Claimant's appointment on 28thMarch, 2002.
Defendant's Submission:
The Defendant formulated four (4) issues for determination, to wit:
1. Whether by virtue of the unsigned writ & summons by which this present Suit was commenced as Suit No. FHC/OVCS/58/2002 at the Federal High Court, Calabar; all subsequent proceedings founded on that writ of summons including this present action is not incompetent which incompetence robs this Honourable Court of jurisdiction
2. If the answer to question one (1) above is resolved to the effect that the proceedings before this Honourable Court is an entirely new action; whether this present action is not statute barred regard being had to the Public Officers' Protection Act.
3. Whether the Claimant has established that his employment with the 1st Defendant was terminated in breach of the Conditions of Service of the 1st Defendant?
4. Whether or not the Claimant was granted fair hearing before his appointment was terminated?
The Defendants argued issues 1 and 2 together. It is the contention of the Defendants that the suit which this court inherited was not commenced and was neither signed by the Claimant or any Legal Practitioner thereby robbing this court the requisite jurisdiction to entertain it.
The Defendants submitted that the Claimants, having admitted in their pleadings particularly paragraph 24 that the instant Suit is a continuation of Suit No. FHC/CA/CS/58//2002, whatever defect is found to be inherent in the said suit would invariably affect the present suit like a virus.
The Defendants submitted that any such process not signed by a Legal Practitioner or the litigating party is invalid and the jurisdiction of the court is ousted. In support of this proposition of the law, the Defendants cited the case of Aaron Karma & 4ors v. Isaiah Samuel (2013) 7 NWLR (Pt 1352) pg. 19 6 43 paras. A-C, where it was held thus:
"Once an Originating Process, be it Writ of Summons or Notice of Appeal is not signed or authenticated either by the Litigating Party or the Legal Practitioner on his behalf, then the Process is invalid and the Jurisdiction of the Court is ousted. The defect is taken as incurable and the process signed in the name of the Legal Firm will not suffice...."
The Defendants further cited the cases of Alhaji Tajudeen Baba Tunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni (2015) 5 NWLR (PT. 1453) P. 486 505 paras F; 506 paras A-C;507 para D-F. and Dr. Tunji Braithwaite v. Skye Bank Plc (2013) 5 N.W.L.R (PT.1348) Pg.1@ p .15 paras. D-E.
It is therefore the submission of the Defendants that since the Claimant commenced this action by an invalid Writ of Summons, all other accompanying processes as well as evidence led in respect thereof cannot stand as the Claimant cannot put something on nothing and expect it to stand. The Defendants also placed reliance on the locus classicus case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to the effect that the Jurisdiction of a Court can only be exercised when the case comes before the court initiated by the due process of law and upon the fulfilment of any condition precedent to the exercise of Jurisdiction.
The Defendants further submitted that lack of signing an Originating Processes is not an issue of technicality and as such is incurable as strongly held by the Supreme Court in the case of First Bank Plc v. Maiwaida (supra) as follows:
"The Legal Practitioners Act seeks to make Legal Practitioners responsible and accountable more especially in modern times. There is nothing technical in insisting that a Legal Practitioner should abide by the dictates of the Law in signing Court Processes. The issue is not in the domain of public policy. The Convenience of Counsel should have no pre-eminence over the dictates of the Law. The law as enacted should be followed."
Similarly, the Defendants contended that the instant action is incompetent as the three months period prescribed by the Public Officers Protection Act, Cap. P41 within which the action can be commenced had long expired.
On the authority of the recent case of University of Jos v. Dr. M. C. Ikegwuoha (2013) 9 NWLR (P1.1360) p. 478 R. 1, the Defendants submitted that itis now firmly established that Federal Universities in Nigeria are Public Officers within the meaning of the Public Officers (Protection) Act.
The Defendants asked when did the cause of action in this suit arise and when did the Claimants approach this Court? For an answer, the Defendants proffered the definition of cause of action in the Supreme Court case of Union Bank of Nigeria Plc v. Romanus C. Umeoduagu (2004) 11 MJSC 127 :
"The combination of facts and circumstances giving rise to the right to file a claim in court for a remedy. It includes all things which are necessary to give a right of action - and every material fact which is to be proved to entitle the Plaintiff to succeed."
The Defendants therefore posited that a cause of action accrues on the date on which the incident giving rise to the cause of action arose and statute of limitation begins to run from the moment the cause of action arose, citing Okenwa v. Military Governor of Imo State (1997)6 NWLR (P1507) P.154 at 167.
Applying the above to the facts of the instant case, the Defendants noted that the grudge the Claimant is the termination of his appointment dated 28th March, 2002 and submitted that having waited for 14 years before approaching this Court, the Claimant has lost his right of action if any, relying on the case of Cross River University of Technology (Crutech) v. Obeten (2011) 15 NWLR PT. 1271.
Finally on the point, the Defendants submitted that under the circumstance, the proper order for the Court to make is that of dismissal as in Cross River University of Technology (Crutech) v. Obeten (supra).
On issue three, the Defendants submitted that in determining the appointment of the Claimant, the Defendants complied with the spirit and letters of the Regulations Governing the Senior Staff Conditions of Service of the University of Uyo 1998to the hilt. Quoting the Chapter 2, 21 of the Regulation 770111, the Defendants submitted that to terminate the appointment of an Academic Staff like the Claimant, the 1st Defendant must:
(i) Set up a joint Committee appointed by the Council and the Senate and at least one-third of its members must be appointed by the senate and,
(ii) The person concerned, has if he so request be permitted to appear to defend himself either in person or through his representative.
(iii) And the report of the Committee should be considered by senate and ultimately the Governing Council which shall take appropriate action.
It is the further contention of the Defendants that the 1st Defendant complied with the above provisions in terminating the appointment of the Claimant by the following actions:
1. Setting up investigative panels to investigate various acts of misconduct levelled against the Claimant.
2. The panels invited the Claimant, took evidence and submitted its reports to a Joint Committee appointed by the Senate which is also christened Senior Staff Disciplinary Committee.
3. The Joint Committee duly invited the Claimant who not only replied to the letter of invitation but attended the sitting of the Committee once.
4. A report of this Committee was eventually presented to the senate and ultimately the Governing Council being the highest decision making body in the University.
5. The Council considered all the Reports and came to a conclusion that the services of the Claimant was no longer required.
Having followed the above procedure, it is the submission of the Defendants that the termination of the Claimant employment was lawful and without reproach particularly given the position of the law that once an employer complies with the terms of its contract with its employee it can terminate the services of the Employee and the Court will have no business with the motive behind the termination of such contract relying on the case of Fakuade v. Obafemi Awolowo University Teaching Hospital Management Board (1993) 5 NWLR (Pt 291) 47.
The Defendants strongly maintained that the walking away from the panel set to investigate his alleged act of sexual misconduct constituted "gross misconduct" which is enough to earn the Claimant a dismissal as in the case of Teliat Sule v. Nigerian Cotton Board (1985) 6 5012, where Obaseki, J.S.C (as he then was) stated:
"When a Servant grows too big to obey his master, the Honourable course open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience both common law and statutes law brook no disobedience of lawful order from any servant, high or low, big or small such conduct normally or usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishments."
On the contention by the Claimant that the Senior Staff Disciplinary Committee was not properly constituted as "there being no representation of Senate on the Committee.", the Defendants advanced that nothing could be farther from the truth as this much was admitted by the Claimant himself when confronted with the names of the Representatives of the Senate as clearly spelt out on Exhibit C41.
The Defendants also argued that by- virtue of Section 4 (m) of Exhibit C4, misconduct by an employee of the 1st Defendant is construed to include, acts that embarrasses officers, Committees, Senate or Council of the 1st Defendant and that that if the Governing Council of the 1st Defendant comes to a conclusion that the act of walking out on a panel set up by the 1st Defendant by the Claimant is embarrassing enough to amount to misconduct warranting the disengagement of the Claimant from the services of the 1st Defendant; it does not lie in the mouth of the Claimant nor this Court with respect to state otherwise. The rationale for this, according to the Defendants is that the right to discipline any employee of the 1st Defendant including suspension is sacrosanct, once the rules, of engagement have been duly complied with. It is therefore the further submission of the Defendants that an employer can suspend his employee pending investigation of any allegation against him and such suspension will not give rise to an action by virtue of the cases of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) Pg 142 Para F-L; Amadiume v. Ibok (2006) 6 NWLR (P7975) P. 158 R. 4; Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (P7 1189) Pg. 1 060 Para E.
By way of conclusion, the Defendants reproduced extensively the report of the Governing Council on the Claimant on page 38 of Exhibit C 41 as follows:
"The Registrar thereafter presented a report on gross misconduct by Dr. Inih A. Ebong to the Council. The report catalogued Dr. Ebong's acts of gross misconduct since his employment by the University of Uyo in 1995. Council observed among other things that:
i. Dr. Ebong has caused lots of problems in the Department of theatre Arts;
ii. He was very rude to the constituted authorities of the University and consistently undermined the authority of Investigation Panels set up by Management to look into cases involving him. He either bluntly refused to appear before such panels or when he did, he would abuse the members and would walk out on them. The cases of Prof. E.D Okon and Prof. E.O. Ekpo's Panels were cited.
iii. He volunteered the information that he had faced thirteen (13) different panels in the University within his short stay.
Council considered the report of Prof. E. D Okon's panel in which Dr. Ebong was indicted for walking out on the panel. Prof. Okon's Panel was investigating a case of sexual harassment preferred against Dr. Ebong. The Panel had recommended his dismissal from service in line with Public Service Rules. Council expressed dismay at the consistent and flagrant acts of gross misconduct displayed Dr. Ebong and decided that Dr. Ebong's services were no longer required in the University. Council approved the termination of his appointment with immediate effect."
Finally on the point, the Defendants submitted that it ought not to keep an employee with these damning report in its employ and urged the court to hold that the 1stDefendant was justified in terminating the Appointment of the Claimant having complied with the spirit a letter of the Condition of Service that governed the Claimant's employment.
On issue four, which is whether the Claimant was granted fair hearing before his appointment was terminated, the Defendants contended that the Claimant was afforded all the opportunity to defend himself, some of which he utilized and others he spurned.
The Defendants thereafter recounted how two panels were constituted to 1ook into the allegations against the Claimant and how the Claimant attended the panel that looked into abandonment of duty made a short representation and left and how the Claimant attended the second panel on sexual harassment and walked out on the panel mid-way into the sitting. The Defendants also recalled the setting up of a third panel, the Senior Staff Disciplinary Committee (also called the joint Committee of the Council and Senate) as prescribed by the Regulations Governing Senior Staff of the 1st Defendant wherein a formal invitation letter was sent to the Claimant only for him to reply vide a letter dated 28th January, 2012, appear once before the Committee and no more.
To the Defendants, it is pertinent to ask the following questions:
a) If the Claimant was not given a hearing, how come he gave evidence before the panel on abandonment of duty? Did he deny appearing before that panel?
b) What happened to the reply written by the Claimant to the letter of invitation sent to him to appear before the Senior Staff disciplinary Committee? Did he deny writing the said letter or appearing before the Senior Staff Disciplinary Committee once?
c) Was it not only the panel set to investigate allegations of sexual harassment that he denied appearing before even in the face of the Report of the Senior Staff Disciplinary Committee before the Court?
Referring to the cases of S & D Construction Company Limited v. Chief Bayo Ayoku & Anor (2011) 13 NWLR (PE 1265) Pg. 487 Particularly at Page 509 Paragraph E-Fand Omo v. Judicial Service Commission Delta State (2000) 12 NWLR. (PE 682) 444, the Defendants submitted that the position of the law is that a party who had opportunity of being heard but failed to utilise same cannot complain of breach of fair hearing.
Having noted that the panels in the instant case were merely administrative panels, the Defendants submitted that where a body as a panel of inquiry acts in an administrative and not in a judicial or quasi-judicial capacity, the need for a hearing is satisfied by an opportunity to make representations, written or oral to the body. The essential thing is that the body gives a fair opportunity to the person to be affected to present his own side of the case. This is the case of Udo v. Cross Rover State Newspaper Corporation (2001) 14 NWLR (Pt. 732) P. 116 @ 153, 154.
By way of conclusion, the Defendants posited that the Claimant's appointment was lawfully terminated and accordingly this action deserves to fail.
Claimant's Submission
The Claimant formulated three (3) issues for determination as follows:
1. Whether the Suit, as it is presently constituted, is incompetent.
2. Whether in the circumstances of this case, the Defendants had complied strictly with the conditions of service before stopping the Claimant's salary, suspending him from duties and terminating his appointment.
3. Whether the Claimant is entitle to the reliefs sought.
On issue one (1) which is whether this Suit as it is presently constituted is incompetent, the Claimant noted that the Defendants challenged the competence of the suit on two prongs: The non-signing of the Writ of summons of the previous Suit transferred from the Court of Appeal, Calabar which led to the institution of Suit No. NICN/UY/12/2015 and the three months period prescribed by the Public Officers Protection Act, Cap. P41 within which the action can be commenced had expired.
The Claimant stressed the importance of jurisdiction as enunciated in the case of Madukolu v. Nkemdilim (1962) 1 SCNLR 341 and responded to the Defendants' position in turns. On the issue of non-signing of the writ, the Claimant asserted that jurisdiction is a question of law relying on Heritage Bank Ltd. v. Benthworth Finance Nig. Ltd (2019) All FWLR (Pt. 997)1 at 23, line G; Attorney General, Kwara State & Anor v. Adeyemo & Ors (2016) 7 SC (Pt. 11) 149and submitted that the law establishing and creating this Court is donated, both by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the National Industrial Court Act (Third Alteration) Act, 2011 (sic) as distinct from the law establishing the Federal High Court. It is the further submission of the Claimant that the jurisdiction of this court is as donated by section 254C of the National Industrial Court (Third Alteration) Act, 2011 (sic) which does not confer it with unlimited powers to determine claims or matters relating to the interpretation and application of the rules of any other Court, be it Federal or State. It is therefore the submission of the Claimant that the argument canvassed by the Defendants that the unsigned Writ of Summons issued as Suit No. FHC/CA/CS/58/2002 by the Federal High Court, Calabar on June 27, 2002 was incompetent is an attempt to invite this Court to interpret and apply the law and the rules of another Court which is not allowed in law. The Claimant cited the case of Onagoruwa v. IGP (1991) 5 NWLR (Pt.193) 593 at 636 ratio 12, where it was held thus:
"In law, a Court of law is basically and generally bound by the law establishing it and not that establishing some other Court. While a Court exercising an appellate jurisdiction can draw attention to a lower Court for act complying with a provision of a statute establishing it in the process of invoking its interpretative jurisdiction, it is not competent to make use of a section of that statute as if it is bound by it."
It is also submitted by the Claimant that the Writ of Summons dated June 27, 2002 issued in Suit No. FHC/CA/CS/58/2002 was validly issued as required by the provisions of Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules 2000 which provided thus:
"Issue of a Writ takes place upon its being signed by the Judge in Chambers."
On the cases cited by the Defendants is support of their position on this, the Claimant taking refuge in the cases of Emeka v. Okadigbo (2012) All FWLR (Pt. 651) 1426and Adedara v. Arowoio (2014) All FWLR (Pt. 761) 1536 at 1558, ratio 1 submitted that cases are only authority for what they decides and that for cases to be binding on Courts, it must relate to the facts of the case. The Claimant advanced that the modern approach adopted by the Supreme Court in the case of Akeredolu v. Abraham (2019) All FWLR (Pt. 998) 179, is that it is no longer opened to the Court to apply principles of law without scant reference to the facts of the case cited and the prevailing circumstance of the case under consideration. It was held at 221, lines B as follows:
"It is trite law that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. Secondly, each case remains authority for what it decided. Therefore, an earlier decision of this Court will only bind the Court and subordinate Courts in subsequent case if the facts and the law which informed the earlier decision are the same or similar to those in the subsequent case. Where the facts and/or legislation which are to inform the decision in the subsequent case lifter from those which informed the Court's earlier decision, the earlier decision cannot serve as a precedent to the subsequent one."
Applying the above principles to the facts of the instant case, the Claimant observed and argued as follows. First, unlike the issue before this Court, in all the cases cited, the issue was the interpretation and enforcement of the provisions of Section 2 (1) and 24 of the Legal Practitioners Act, 2004 from where the Rules of the Federal High Court on signing of the Writ of Summons derives its validity and force. Second, and most importantly, the principles of law enunciated in these cases are in relation to processes filed by a legal practitioner, without more. Third, the true intent and purpose of the principles in the earlier cases cited are only intended to protect the legal profession, not the ways of a litigant who seeks justice in the court. This is even so in the case of Ministry of Works & Transport, Adamawa State & Ors v. Yakubu pon) at 53 NSCQR (Pt. 11) 1 at 18-19cited by the Defendants, where the Supreme Court held thus:
"It is not in doubt that the provisions of the law cited above are meant to protect the legal profession. To ensure that no person other than a lawyer whose name is on the call roll sign legal documents and eliminate impersonators and fake lawyers from legal practice."
Four, none of the cases cited and relied upon by the Defendants had decided any issue concerning or arising from a case transferred from the Court of Appeal to this court for trial denovo or the validity or otherwise of a prior process in the subsequent trial or on the basis of a writ of summons issued under the Federal High Court (Civil Procedure) Rules, 2000 by a Plaintiff in person.
On the issue of this action being statute barred, the Claimant posited that this court having ruled previously that the suit was instituted within time and not statute barred per Exhibit CW49, the Defendants wanted another bite at the cherry, the implication of which amounted to inviting this Court to sit on appeal over its decision. Referring to paragraph 3 (c) of the Reply to Statement of Defence and the proceedings of September 26, 2017, the Claimant urged the court to be bound its record as constituting resjudicata as the Defendants cannot easily resurrect the ghost of an issue that was long buried in the labyrinth of the past. To the Claimant, the law is settled that, an issue that has been resolved and settled by the Court between the parties cannot be re-litigated again as it constituted issue estoppel in accordance with the case of Polyvalent (Mg.) Ltd. & Ors v. Akin Akinbote(2010) 8.NWLR pt. 1197) 506 at 519.
Not only that, the Claimant submitted that on the authorities of Addax Petroleum Development (Nig.) Ltd. v. Emef International Operations (2012) All FWLR (Pt. 621) 1585 at1596 ratio 3and Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd (2015) All FWLR (Pt. 803) 1857 at 1901,a suit that was filed within time and later struck out and re-filed is not caught up by the Public Officers Protection Act. It was held in Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd (supra) at 1901 ratio 8, thus:
"Where an aggrieved person commences an action within the period prescribed by statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such an action is still open to be recommenced at the instance of the Claimant and the limitation period shall not count during the pending of the earlier Suit. In other words, computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates."
It is also the contention of the Claimant that the argument of the Defendants on the issue can no longer be an issue for debate given the position of the law which has since navigated the ocean of rigidity has berthed at the shore of flexibility. To buttress this, the Claimant cited the case of Osun State Government v. D. N. Ltd (2007) 17 WRN 1 at 16, ratio 2, where the Supreme Court held thus:
"It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract."
This principle of law has been re-echoed by the Supreme Court in the recent case of N.R.M.A.F.C v. Johnson (2019) 2 NWLR (Pt. 1656) 246 at 269 270,1ines H-A, G, where the law was put in its proper perspective thus:
"Ordinarily, the purpose of the Public Officer Protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months after the act, default or neglect complained of.... The law is said to be designed to protect only officer, who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification.... There is no doubt, a careful reading of the respondents' claim will show clearly that it is on contract of service. It is now law settled that section 2 of the Public Officers Protection Act does not apply to cases of contract."
The Claimant's issue no. 2 is whether in the circumstances of this case, the Defendants had complied strictly with the conditions of service before stopping the Claimant's salary, suspending him from duties and terminating his appointment. The Claimant answered in the negative. Asserting that the law is settled that parties are bound by their pleadings as in the cases of Sapo & Anor v. Sunmonu (2010-2013) 6 SOL 78 at 85; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412 at 433-434 paras H-A; Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 141, the Claimant reeled out the pertinent paragraphs the Statement of Facts, Statement of Defence and Reply to the Statement of Defence which represented the substance of the claim against the Defendants. These were paragraphs 5, 6, 10, 11 and 12 of his Statement of Facts and paragraphs 4, 5, 7, 8 and 10 the Statement of Defence.
Noting that the law is settled that cases are decided on the facts before the Court as in Buhari v. INEC (2009) 7 WRN 1 at 122 ratio 20, the Claimant submitted that from the facts pleaded in this case, it is safe to assert, as proved and establish that, parties are agreed that, the contract of employment is governed by the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit CW4). To the Claimant the court is bound to accept the fact as proved because it is not the business of the Court to spend judicial time resolving matters not in dispute relying on the case of Ogundalu v. Macjob (2015) All FWLR (Pt. 784) 103 at 123 ratio 10.
It is the submission of the Claimant that by the nature of the contract employment which is one with statutory favour, the Defendant must strictly comply with all the terms and conditions of service. For this proposition of the law, the Claimant cited the cases of Shitta-Bey v. The Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos (1985) 2 NNLR (Pt. 9) 599; Ekpereokun v. University of Lagos (1986) 4 NINR (Pt. 34); Bakare v. L.S.C.S.C. (1992) 8 (Pt. 252) 641; CBN v. Igwillo (2007) 147 LRCN 913; SPDCN v. Olarenwaju (2009) 6 WRN 72.The Claimant further quoted the Court of Appeal in the recent case of University of Uyo v. Dr. E. P. Akpan (2014) All FWLR (Pt. 736) 472 at 515, thus:
"When an office or employment has a statutory flavour in the sense that, its conditions of service are provided for and protected by statute or regulations made thereunder, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right of reputation or tenure of office of that person may be declared null and void in an appropriate proceeding."
It is the contention of the Claimant in this case that, the Defendants did not comply with the terms and conditions of service of his employment before stopping his salary, suspending him from duties and terminating his appointment. Having noted that both the Claimant and Defendants relied on the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit CW4) as the centre-piece of all their arguments in this case, the Claimant set out the provisions of Paragraph 2.21 at Page 8 of the document thus:
"The appointment of any member of the academic staff who, holds an appointment until retiring age shall not be determined by the Council unless there has been an investigation relating to his case by a Joint Committee nominated by the Council and the Senate of which Joint Committee, at least one third of the members, have been appointed by Senate and the person concerned, has, if he so requests, been permitted to appear to defend himself in person or through his chosen representative before the Joint Committee, and the report of the Joint Committee considered by the Senate and by the Council which shall take an appropriate decision on the case."
To demonstrate that the above provisions were not followed, the Claimant submitted that his salary was wrongfully stopped vide Exhibit CW13after he validly obtained permission and approval to embark on his annual leave for 2001 vide Exhibit CW11 which was endorsed by the 3rd Defendant. Since the Defendants have in nowhere repudiated the validity and content of Exhibit CW11, the Claimant urged the court accept as credible calling in support the recent case of Solomon v. Monday (2015) All FWLR (Pt. 762) 1695-1720, where it was held thus:
"Documentary evidence if not challenged in any manner pejorative to its integrity and authenticity must be believed and accepted."
The Claimant also posited that the Report of the Investigation Panel of the Case of Abandonment of Duty (Exhibit CW17) not only supported the evidence of the Claimant but clearly vindicated the Claimant and absolved him of any blame as stated at page 3 thus:
"(1) Dr Ebong was authorized by the Registry on the recommendation of the Head of Department to proceed on leave within the period of 1st August to12 September, 2001."
The Claimant further singled out Exhibits CW11 and CW17 as documentary evidence to support the credibility of his evidence, the combined effect of which makes his oral evidence more credible referring to Jolasun v. Bamboye (2010) 18 NWLR (Pt. 1225) 285 at 318-319.Alluding to the principle that documentary evidence is the best evidence as held in the cases of AG, Bendel State & 2 Ors v. United Bank for Africa Ltd (1986) 4 NWLR (Pt. 337) 547 at 563; Egharevba v Osagie (2010) 180 LRCN 75 at 103, ratio 6, the Claimant asserted that these documents cannot be faulted or controverted as documentary evidence carry the heavy weight of a hanger upon which oral evidence is assessed: B. Stabilini & Co. Ltd v. Obasi (1997) 9 NWLR (Pt. 520) 293 at 305.
Thereafter, the Claimant attacked the position of the Defendants that they have followed the provisions of the Rules to the hilt in determining his appointment on three (3) grounds. First, Claimant strongly submitted that the composition of the Senior Staff Disciplinary Committee is unknown to the regulations of the 1st Defendant (Exhibit CW4). The committee envisaged under section 2.21 (a) of Exhibit CW4 is a "Joint Committee" to be "nominated by Council and the Senate", of which number, "at least one third of the members" should be nominated by the Senate and not the Senior Staff Disciplinary Committee. It is also the submission of the Claimant that, neither the pleadings of the Defendants and the evidence of DW1 have proved or established, in concrete terms, that, the composition of the members in Exhibit DW3was in strict compliance with the regulations. In fact, it is the argument of the Claimant that DW1 did not even know the members' of the panel, let alone the number of those that were appointed by the Council or nominated by the Senate to satisfy the mandatory number.
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The Claimant contended that general proposition of the law is that the burden of proof lies on that person who would fail if no evidence at all were given on either side referring to section 132 of the Evidence Act, 2011; Olaiya v. Olaiya & Ors (2000-2006) 6 SCE 560.But further contended that it is not static as provided for by section 136 (1) and (2) of the Evidence Act, 2011 thus:
"(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless....
(2) In considering the amount of evidence necessary to shift the burden of proof, regard shall be heard by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively."
Based on the above provision, the Claimant submitted that having denied and refuted the composition of the Joint Committee as provided in paragraph 2.21 (a) of Exhibit CW4, the burden has been shifted to the Defendants, who had "the opportunity of knowledge with respect to the fact" of the membership of the Committee. According to the Claimant this position has found judicial expression in the Supreme Court case of David Itauma v. Akpe-lme (2000-2006) 6 SOE 184 at 191 where it was held:
"In civil cases the burden of proof is not static. While the burden of proof initially lies on the Plaintiff, the proof or rebuttal of issues, which arise in the course of proceedings may shift from the plaintiff to the Defendant and vice versa."
Thereafter the Claimant quoted the answers elicited from DW1 under cross examination on 5th July, 2019 to demonstrate the ignorance of the DW1 on the composition of the committee as follows:
Q: Are you familiar with the composition of the Committee, the Senior Staff Disciplinary Committee?
A: As to the names, no. But is usually comprises members of the Senate and Governing Council with the Directorate of Counsel Affairs as the Secretary.
Q. Since you are not familiar with the names, what was the number of the people in the Committee?
A: I cannot recall the number, although there is usually a static number as specified by the law and extant regulation of the school.
Q: Since you do not know the number and the names of the people who constituted the Committee, I will also be correct to say that, you did not know the number of those that were nominated by the Senate?
A: I cannot recall the number.
Arising from the above, it is the submission of the Claimant that the inconsistencies and endless equivocation in the evidence of DW1 have, no doubt, proved that, the testimony of the witness is hearsay and therefore unreliable and that, evidence of a party that is not believed cannot possibly form the foundation of any defence, legal or equitable as in the cases of Kakih v. PDP (2014) 59 NSCQR 1 at 61 and Alade v. Alemuloke & 2 Ors (1988) (Pt. 1) (Reprint) 1 at 8, lines 25-30.
In the further argument of the Claimant that even if the composition of the Committee was faultless, the mere fact that the procedure for the consideration of the report failed to comply with the requirements of paragraph 2.21 (a) of Exhibit CW4render it void ab initio. The Claimant reiterated that under the said paragraph, the report of the joint committee must be "considered by the Senate and by Council". The Claimant also asserted that there is evidence which is uncontroverted, that, Exhibit DW3, which is the sole mantra of the Defendants or any other report, was never considered by the Senate of the 1st Defendant before relying upon it to terminate the appointment of the Claimant. The Claimant invited the court to note that even DW1 admitted this under cross examination on 5th July, 2019 thus:
Q: Was the report of the Senior Staff Disciplinary Committee considered by the Council?
A: Yes, My Lord, all the reports concerning the Claimant that were made by the Committee were considered at various times.
Q: The proceedings of the Senate of the 1st Defendant are usually recorded?
A: Yes, My Lord.
Q: And it is true that they are reproduced in the form of minutes?
A: Yes, that is correct.
Q: Was the report of the Senior Staff Disciplinary Committee considered by the Senate?
A: No, My Lord. The Senate considers only student matters. It is the Governing Council that considers staff matters.
It is therefore the submission of Claimant that unless the report is first considered by the Senate, as mandatorily required; it will be futile if the Council takes a decision there upon as the consideration of the report of the Joint Committee by the Senate is a sine qua non as envisaged by Exhibit CW4. In the case of U.N.T.H.M.B v. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 413, the Supreme Court held thus:
"Where a public body fails to comply with certain procedural safeguards in an enabling act or regulation, there is a breach of a duty imposed on it and its decision in such circumstance is ultra vires. To render the decision void, however, the procedural provision must be mandatory and not merely directory. Thus, where the procedural provision is mandatory, a breach of it by the public body renders its decision ultra vires and void."
The Claimant also submitted that since the evidence of DW1 above supported the case of the Claimant, the Court is entitled to rely upon it, without more as stated in the case of Akomolafe v. Guardian Press (2010) 3 NWLR (Pt. 1181) 338 at 351 where it was held:
"Evidence elicited from a party or his witness under cross examination, which goes to support the case of the party cross-examining; constitutes evidence in support of the case or defence of the party."
Third, and having regard to Exhibit DW3, the Claimant submitted that there was nothing incriminating or indicting in the report for the 3rd Defendant to have relied upon in terminating the appointment of the Claimant. In fact to the Claimant, the findings and recommendation of the Committee clearly supported the Claimant, in that at page.12, Recommendation No. 2 Exhibit DW3 recommended that the panel headed by Prof. E.D. Okon should be reconstituted because "its report misled the Senior Staff Disciplinary Committee and Council".
The Claimant also posited that even the content of Exhibits DW3 contradicted CW17. Whereas Exhibit CW 17 at page 2 contains record of proceedings where the Claimant appeared before the Panel and testified, Exhibit DW3, at page 4, (A) (2), it is stated "Dr. Inih Ebong was invited to appear before the Committee. He failed to do so."
To the Claimant this contradiction is too material to be ignored and the court is entitled to reject the entire evidence as unproven given the fact that it cannot pick and choose which one to believe relying on Olaiya v. The State (2018) 10 NWLR (Pt. 1626) 1 at 18, line C. and Zakirai v. Muhammed (2017) 70 NSCQR (Pt. 2) 833 at 898, where the Supreme Court held:
"The law insists that, where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow."
Similarly, the Claimant cited the case of Effiom v. C.R.S.I.E.C (2010) All FWLR (Pt. 552)1610 at 1631, ratio 1, in which the Supreme Court held:
"Itwill be extremely dangerous to uphold or sustain a claim in the face of glaring and unresolved conflicts in exhibits."
The Claimant accused the Defendants of prevarication or evasiveness and noted the copious reference by the Defendants to the "damning report" of the panel of investigation of Prof. E. D. Okon on the allegation of sexual harassment against the Claimant but made no effort to tender the report before this court. To the Claimant, the deliberate withholding of the report by the Defendants knowing that if produced, the report would have been unfavourable to them entitled the court invoke the provisions of section 167 (d) of the Evidence Act, 2011; Onwiyuba & Ors v. Obienu & Ors (1989-1992) 3 SCE 574 at 581. The attempt by DW1 to avoid the question by alleging that, some documents were burnt in an inferno according to the Claimant is lame and unassailable as even a Police Extract of the incident was not made.It is therefore the submission of the Claimant that in the absence of the report the Court cannot speculate, after all the Court is an adjudicator and not an investigator. On this, the Claimant referred to the cases of Ajanaku v. Osuma (2014) All FWLR (Pt. 727) 698 at 724and Ogundele v. Agiri (2010) 9 WRN 1 at 35-36, ratio 12.
The Claimant also took a swipe at the manner and procedure the report, Exhibit CW3, was presentedto the 3rd Defendant for being irregular and void. The Claimant also highlighted the disconnection between the report (Exhibit DW3) and the decision taken by the 3rd Defendant in Exhibit CW41.While it was recorded in paragraph 9, pages 16-22 of Exhibit 41 that, the 3rd Defendant received, considered and decided on the report of the Exhibit DW3, paragraph 9.2, pages 20-22 of Exhibit CW41 expressed no decision or comment on the alleged two cases investigated against the Claimant. It is therefore curious that at page 38 paragraph (c) of Exhibit CW41, the 2nd Defendant presented another strange and yet to be identified report on the basis of which the appointment of the Claimant was terminated. The Claimant went ahead to refer to page 38, paragraph (c) of Exhibit CW41 thus:
"The Registrar thereafter presented a report on gross misconduct by Dr. Inih A. Ebong to Council. The report catalogued Dr. Ebong's acts of gross misconduct since his employment by the University of Uyo in 1995."
Under the circumstances, the Claimant asked on which of the reports did the 3rd Defendant rely on to terminate the Claimant's appointment and submitted that if it is the latter report as presented by the 2nd Defendant, who was not a member of any panel or committee that investigated the Claimant, the purported termination was a nullity ab intio. The reason being that the Claimant cannot be suspended from duty on one allegation, while his appointment was terminated for a different allegation on which he was not heard. The Claimant alleged that there was no report of any panel or Committee set up by the 1st Defendant and headed by the 2nd Defendant to investigate the Claimant for gross misconduct against him and pointed out the laughable and spurious contradiction in which he was accused of "gross misconduct", while his appointment was terminated for "a case of serious misconduct" noting that they are not synonymous.
