➥ CASE SUMMARY OF:
Asigene Peter v. Ambrose Alli University Ekpoma & Ors. (NICN/BEN/26/2020, 25TH OF MARCH, 2021)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Dismissal from AAU;
Statutory flavour.
➥ CASE FACT/HISTORY
The claimant also deposed to a 10 paragraph further and better affidavit on the 4th of December, 2020 with two (2) exhibits attached, marked Exhibits A and B, and same was accompanied by a Reply on point of law. The Claimant’s deposed that he was employed as a non-academic staff of the 1st Defendant, and was attached to the Academic Planning Unit prior to his dismissal. He deposed further that before his suspension, demotion and subsequent dismissal from the 1st defendant, he was a dutiful and diligent staff of the 1st defendant. He alleged that on the 9th of March, 2020, he was demoted and consequently recalled from suspension with the approval of the 3rd defendant vide letter dated 17th March, 2020. The claimant continued that on the 20th July, 2020, he was again served with another letter dated 3rd April, 2020, dismissing him from the 1st defendant, whereupon he instituted this suit vide originating summons.
The defendants in response to the Originating Summons filed an eighteen paragraph counter- affidavit on the 6th of November, 2020, and same was deposed to by E Ehiakhamen, Male, Christian Nigerian, Deputy Registrar (Personnel) of the 1st Defendant. Also attached is one document marked Exhibit D1 and a written address in compliance with the Rules of this court. The defendants’ vide their counter affidavit deposed that the claimant was tried by an ad-hoc senior staff disciplinary committee and was found guilty of defrauding the institution of over N34,000,000.00k (Thirty Four Million Naira). The Committee eventually recommended that he should be dismissed to the 3rd defendant, who made the decision to demote him and same was communicated to the claimant. The 6th defendant who is also a member of council however intervened and the 3rd defendant’s decision was reviewed giving the fact that other people tried along with the claimant were dismissed, and the claimant was eventually dismissed in line with the University’s laws and regulations. The defendants maintained that the claimant is not entitled to any of the reliefs sought and urged the court to dismiss the claimant’s case.
➥ ISSUE(S) & RESOLUTION(S)
[CLAIM SUCCEEDS]
↪️ I. Whether the University’s governing council can review the claimant’s demotion to subsequently dismiss him?
RESOLUTION: IN CLAIMANT’S FAVOUR.
[THE DEFENDANT FAILED TO PROVE THAT THE CLAIMANT OUGHT TO BE DISMISSED
‘The defendants in their written address argued copiously that the intervention of the 6th defendant is supported by the Rules, Regulations and Laws guiding the employment. The defendants however failed to cite any provisions in these statutes to support their contention. It is a trite principle of law that he who asserts must prove. Hence the defendants having asserted the fact that the 6th defendant’s action is supported by the terms of employment bears the burden to proof same, see Section 131 & 132 of the Evidence Act, 2011. On this the defendants failed woefully and as such their assertions in this regard are unproven and discountenanced.’
UPON DEMOTING THE CLAIMANT, THE DEFENDANT BECAME FUNCTUS OFFICIO, AND THUS COULD NOT SUBSEQUENTLY DISMISS HIM
‘Further on this, I have carefully read and studied the provisions of the law and the rules guiding the claimant’s employment and found no provision supporting the defendants’ assertions, especially on the point that the council can review its decision to impose another punishment after the conclusion of a disciplinary process for the same offence. It is a fundamental principle of law that where the words of a statute are plain and unambiguous, the Courts will interpret them in their ordinary grammatical meaning unless such interpretation will lead to absurdity. See Federal Republic of Nigeria v Ikedinwa & Anor. (2013) LPELR-21120 (CA) Pp 12-13, where Bada JCA held; “It is settled law that it is both elementary and also a fundamental principle of interpretation of statutes that where the words of a statute are plain, clear and unambiguous, effect should be given to them, in their ordinary and natural meaning except where to do so will result in absurdity.” 37. Since the defendants in this instance have exercised the disciplinary powers over the claimant by demoting him for the alleged act of misconduct, they are precluded from imposing a subsequent punishment of dismissal. In this wise the intervention of any person or body not countenanced by the terms guiding the employment is unwelcome even if the initial punishment for the offence is not commensurate with the offence committed. This fact is reinforced by the position of the law that an employer has the right to invoke a lower punishment but not a higher punishment on an erring employee, see Udegbunam v FCDA (2003) 10 NWLR (Pt. 829) 487 SC.’
‘The simple and plain interpretation of this is that irrespective of the sanction recommended by the senior staff disciplinary committee (SSDC), the Council is still vested with the discretion to mitigate the sanction, and substitute it for any of those provided above. This in my view is what the Council did when it decided to demote the claimant instead of dismissing him. In the face of the finality of the claimant’s demotion, it is no longer open to the defendants to revisit this issue as there is no provision in the terms of employment to support such re-visitation under any guise.’]
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↪️ II. Whether or not the claimant is entitled to the reliefs sought?
RESOLUTION: IN CLAIMANT’S FAVOUR.
[THE CASE OF THE CLAIMANT IS NOT ACADEMIC
‘A scrutiny of the reliefs sought in this suit reveals that the claimant is seeking among other things, reinstatement to his position, should the questions for determination in this suit be resolved in his favour. It is to be noted that there is no dispute in the instant case, the claimant’s employment is statutory, and one of the hallmark of a statutory employment is that the discipline of an employee under same must be done in accordance with the statute or enactments, rules or regulations guiding the employment relationship. It follows therefore that any act done in contravention of the terms of a statutory employment will be declared ultra vires, null, void and of no effect whatsoever. A look at the reliefs and the questions set down for determination in this suit, reveals that if same are resolved against the defendants, the dismissal of the claimant is reversible and liable to be declared unlawful and invalid. The defendants’ contention in this regard is therefore clearly untenable, as this suit cannot in anyway be likened to an academic exercise.’
RELIEFS 1 & 2 ARE GRANTED
‘Having held above that the 3rd defendant is the final body vested with the power to discipline the claimant, I have no difficulty in finding that reliefs 1 and 2 succeeds. Consequently, it is hereby declared as follows: The Hon. Commissioner of Education, Edo state (6th Defendant) lacks the capacity, powers or vires to unilaterally alter and or change the decision of the 3rd Defendant in a matter which led to the dismissal of the Claimant from the employment of the 1st Defendant. The 3rd Defendant being the final organ as far as the employment and discipline of 1st Defendant’s staff is concerned, cannot be over ruled by the 6th Defendant in relation to the discipline of 1st Defendant’s staff.’
RELIEFS 3 & 4 SUCCEEDS
‘In his reliefs 3 and 4, the claimant sought an order setting aside the letter dated 3rd April, 2020 (Exhibit H) and reinstatement into the 1st defendant with all his due entitlements and emoluments paid. I have earlier noted in this judgment that though the defendants have the power to discipline the claimant, this must be done in accordance with the statute guiding the employment and not upon a review or intervention by any party as same is not provided in the terms guiding the employment. Flowing from the above position of the law, termination of a statutory employment in a manner contrary to the statute guiding the employment is unlawful and of no effect. See Tsemwan & Ors. v Governor of Plateau State &Anor (supra) per Ekpe JCA where he held as follows: “An employment which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect.” It is premised on the above that I find that reliefs 3 and 4 succeeds. The purported dismissal of the claimant is unlawful, void and of no effect and he is entitled to reinstatement. Whereupon his employment will be deemed to have continued from the date of the unlawful dismissal, see AlHassan v Ahmadu Bello University, Zaira & Ors. (2009) LPELR-8138(CA). 45. Also see CBN &ANOR v IGWILLO (2007) 14 NWLR (Pt.1054) 393, where Akintan JSC held that: “Where an employee’ service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition, damages representing his salaries during the period of the purported dismissal.”’]
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✓ DECISION:
‘Consequent upon the above, the defendants’ letter dated 3rd April, 2020 dismissing the claimant from the 1st defendants is hereby set aside, and, the defendants are hereby ordered to reinstate the claimant into his former position with the 1st Defendant before his dismissal, with all his due entitlements and emoluments paid from the date of his purported dismissal till he is finally reinstated.
In conclusion, I find that the claimant’s action succeeds in part and for the avoidance of doubt, it is hereby declared and ordered as follows:
(i) The Commissioner of Education, Edo state (6th Defendant) lacks the powers to alter and or change the decision of the 3rd Defendant in the matter which led to the dismissal of the Claimant from the 1st Defendant.
(ii) The 3rd Defendant as the final organ on the discipline of 1st Defendant’s staff, cannot be over ruled by the 6th Defendant.
(iii) The defendants’ letter dated 3rd April, 2020 is hereby set aside.
(iv) The defendants are hereby ordered to reinstate the claimant into his former position before his dismissal with all his due entitlements and emoluments paid from the date of his purported dismissal till the time he is finally reinstated by the defendants.
(v) The claim for general damages fails.
I make no order as to costs. Judgment is accordingly entered.’
➥ FURTHER DICTA:
⦿ WHAT ACADEMIC EXERCISE CONNOTES
The term academic exercise in litigation connotes anything theoretical and of no utilitarian value to a party even where judgment is given in his favour. On this see Odom & Ors. v PDP & Ors. (2015) LPELR-24351 (SC) per Ogunbiyi JSC where in his words: “where a particular point is said to be academic, it principally means that it has no real relevance or effect. In other words, the act has been spent and is no longer of any benefit or value and it is therefore not worth spending precious time or dissipating thereon.” Also see Bage JCA held in Ohwavborua & Ors v PDP (2013) LPELR-21026 (CA). — A.A. Adewemimo J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice A.A. Adewemimo
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
J.A. Musa Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 7 (1) of the Ambrose Alli University Law, 1999: “Subject to the provisions of the Edict relating to the Visitor, the Council shall be the governing body of the University and shall be charged with the general responsibility for the policy, finance, personnel and property as well as the public relations of the university.”
Section 19 (1) and (2) of the Ambrose Alli University Law 1999 reproduced as follows: “(1) If it appears to the council that there are reasons for believing that a person employed as a senior staff member of the academic, administrative, professional or technical staff of the University other than the Vice-Chancellor should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall…. (2) The Council, if after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, may so remove him by an instrument in writing signed on the direction of the Council.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
