➥ CASE SUMMARY OF:
Professor Adeniji Adedayo Abiodun v. University of Abuja & Ors. (NICN/ABJ/78/2020)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Employment;
Termination from employment;
Statutory flavour.
➥ CASE FACT/HISTORY
The Claimant is a Professor in the Department of Animal Science, Faculty of Agriculture, and an employee of the Defendant. The events leading to the the termination of his employments were in connections with unfounded allegations of sex for mark against him by one Miss Chioma Deborah Duru (the Complainant), a student of the Department of Animal Science, University of Abuja, the Claimant received an invitation via a letter dated 20/08/19, for an interaction session slated for 27/08/20 19 with the Investigation Panel. He was also not giving proper notice to defend himself against the allegation neither was given fair hearing at the Investigative Panel. The Investigation Panel made their findings and terminated his appointment. He received a letter dated 13/12/19 signed by the 3rd Defendant purportedly terminating his Appointment.
The Defendants on the other hand maintained that Claimant was an employee of the 1st Defendant. The Claimant was accused of Sexual Harassment and Falsification of Results. The Claimant’s appointment was terminated after the recommendation and findings of the Investigation Panel set up by the 1 Defendant. The Investigation Panel was constituted by the Vice Chancellor of the University of Abuja pursuant to the powers conferred on him by the Act setting up the University of Abuja.
The Defendant further maintained that fair hearing was given to the Claimant by the University of Abuja in a query issued against the Claimant, invitation to the Investigation Panel on the Allegation of Falsification of Academic Records and Sexual Harassment. Based on the Findings and Recommendation of the Investigative Panel his letter of termination of appointment dated 13 December 2019 was issued to him by the 4th Defendant.
The Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process also dated and filed 17 March 2020 commenced this suit against the Defendants seeking the Honorable Court for the following reliefs, inter alia: ‘A DECLARATION that the purported termination of the appointment of the Claimant in the service of the 1 Defendant vide a letter dated 13th December, 2019 is wrongful, unlawful, illegal, null and void and of no effect whatsoever for contravening Section 16 (1) (a), (b) and (c), Section 17 (1) (a) & (b), (2) (a) & (b), (3) & (4) of the University of Abuja Act (1992 No. 106) Cap. U2 Laws of the Federation of Nigeria 2004; as well as Section 2 (16), Section 7(1) (a), (2), (3) (g), & (5) and Section 16 (1) (g) & (8) of the Regulations Governing Conditions of Service for Senior Staff of the University of Abuja; and all known rules of natural justice.’
➥ ISSUE(S) & RESOLUTION(S)
[CASE DISMISSED]
↪️ I. Whether Exhibit D12, as well as Exhibit D30, should be expunged from the evidence to be considered in this case, and Whether Exhibits D26 (1), (2), (3) & (4) are inadmissible and ought to be expunged?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE MANNER OF TENDERING WILL BE OVERLOOKED BY THIS COURT
‘Now, it must be noted that the claimants are not contesting the authenticity of Exhibits C12 and C26, only that they are computer printouts and were not tendered in accordance with the Evidence Act. The crux of the claimants’ objection is the manner of tendering Exhibits C12 and C26, not its evidential value (the informality enjoined on this Court by section 12 of the NIC Act 2006 and as explained in KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED does not permit the approach of the claimants). The interest of justice does not warrant this kind of technicality that the claimants are introducing here. Accordingly, it is my finding and holding that in the interest of justice, the relevant provisions of the Evidence Act cited by the claimants shall be departed from for the purposes of this judgment. The argument of the claimants in that regard accordingly fails and is hereby discountenanced. Exhibits C12 and C26 shall accordingly remain admitted; the only issue left is their evidential value as far as this suit is concerned. I find no merit to the objection of the claimant. I resolve this issue against the claimant.’]
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↪️ II. Whether from the pleadings and evidence adduced in this matter, the Claimant has made out a case that entitles him to judgement by this Honourable Court for various Claims as stated and claimed herein?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE EMPLOYMENT OF THE CLAIMANT IS REGULATED BY STATUTE
‘I find that the above together with Exhibits C13-C14, C16-C18 as well as Exhibit C21 –C28 and Exhibit C59 satisfy this courts that the claimants employment is statutorily flavoured; Considering that Section 17 of the enabling Act, University of Abuja Act, gave power to the Governing Council to discipline the Claimant.’
‘It is not in dispute between the parties that the Claimant’s employment was governed by the University of Abuja Civil Act and Service Rules 2008. In other words, his employment enjoyed statutory flavour. The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See: BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR CPT. 622) 290; OLATUNBOSUN V. N.I.S.E.R. COUNCIL (1988) 3 NWLR (PT.80) 25; LONGE V. F.B.N. (SUPRA). See also the case of OMAGBEMI v. FBN (2021) LPELR-54155(CA) Relying on “the case of KWARA STATE JUDICIAL SERVICE COMMISSION V TOLANI (2019)7 NWLR (Pt. 1671) 382, where the Supreme Court has held that there are two vital elements that must coexist before a contract of employment can be said to have statutory flavour and these are: (a) The employer must be a body set up by the Constitution or statute, and (b) The statute or regulations made pursuant to the Constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.”’
THE RESPONDENT WERE RIGHT WITH RESPECT TO SEXUAL HARASSMENT
‘What all that means is that the conduct of the Claimant complained of by the Defendants fails squarely with the definition of sexual harassment (Morley Citation 2011). In other words the Defendants were correct with regard to the first office amounting to sexual harassment. I so hold.’
THE CLAIMANT WAS NOT DENIED FAIR HEARING; EVEN, IT WAS NOT RAISED EARLY
‘It is not in doubt that the Claimant attended the Senior Staff Disciplinary Committee Panel, the Claimant raised the issue of not being accorded fair hearing in that he had informed the Committee after testifying that he required more time to prepare his evidence and asked for more time to which he was informed that the Panel would get back to him if they needed to hear from him further. To ground a claim of a denial of fair hearing the Claimant is required to raise that complaint at the first possible opportunity that avails itself. See the case of (UNREPORTED, SUIT NO. NICN/LA/359/2012) MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD. Looking at the Claimants letters of Appeal following his termination the Claimant did not raise this issue of the Senior Staff Disciplinary Committee Panel denying him additional time as a lack of fair hearing, so as to satisfy the legal requirement to raise a plea of denial of fair hearing in this Court. I resolve this issue against the Claimant.’]
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✓ DECISION:
‘As mentioned earlier the law requires that the claimant be treated in strict reliance with the rules and law governing his appointment. From the state of the pleadings and the evaluation of the evidence I am satisfied that the claimant termination followed the laid procedure. I am satisfied that the claimant termination followed the laid procedure, and as such the Claimants termination in the circumstances is good and proper in law. I find and hold … Case fails and is dismissed.’
➥ FURTHER DICTA:
⦿ THE INFORMALITY EXPECTED OF THE NATIONAL INDUSTRIAL COURT
In KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED [2012] 27 NLLR (PT. 78) 374 AT 454, this Court clarified the informality and flexibility expected of it when adjudicating; and citing the instructive and incisive holding of the Supreme Court of India in NTF MILLS LTD V. THE 2 PUNJAB TRIBUNAL, AIR 1957 SC 329, explained that the task of this Court is to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. — E.N. Agbakoba J.
⦿ WHAT MAKES AN EMPLOYMENT THAT OF STATUTORY FLAVOUR
In the case of the latter, for a contract of employment to be said to import statutory flavour, two vital elements must co-exist, to wit. (1) The employer must be a body set up by the constitution or statute and (2) The statute or regulation made pursuant to the constitution or the principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially, in the matters of discipline. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (Supra) at 20 D G. Per Kekere Ekun JSC. In other words, in addition to the requirement that the employer must be a body set up by statute, the stabilizing statute must make express provisions relating to the employment of the staff of the category of its employees in matters of discipline including termination & dismissal of the employee.— E.N. Agbakoba J.
⦿ BECAUSE EMPLOYER IS CREATED BY STATUTE DOES NOT EMPLOYMENT REGULATED BY STATUTE
Agreed as submitted by the counsel for the Appellants the fact that the employer is a Government or its Parastatal does not automatically cloth the employment with statutory flavour. Indeed the law is that the fact that an employer is a creation of statute does not mean that the appointment of its employees are those with statutory flavour. In other words, being an employee of an employer created by statute does not automatically elevate the status of the employee to that with statutory flavour nor exclude the existence of a master and servant employment. FAKAUDE V. OAUTH (1993) 5 NWLR (Pt 291) 47 @ 63, U.N.T.M.B V. NNOLI (1994) 5 NWLR (Pt 363) 376. See also CBN V. IGWILLO (Supra). — E.N. Agbakoba J.
⦿ WHAT IS SEXUAL HARASSMENT?
The Learned Author Alok Bhasin in his book Sexual Harassment at Work 2 Edition East Book Company 2015 dealt in details with this concept. It would be beneficial to look at this body of work at this time . To the question What is sexual Harassment? The Leaned authour posited the followings. “Sexual harassment” may take diverse and varied forms. Sexual harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting sexual harassment encompasses both the physical and the psychological. Normal sexual or social activity may become sexual harassment where a power differential exists between the parties. In most cases of sexual harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually. ” Taken from Dutton V British Columbia Human Rights Tribunal 2001 etc.“Quid Pro Quo” and “Hostile Environment” Sexual Harassment -The development of jurisprudence in the area of “sexual harassment at work” has made it possible to identify two main forms of sexual harassment: sexual blackmail (quid pro quo harassment) and hostile environment harassment. Quid pro quo harassment is characterized by the denial of an economic benefit to punish the victim In other words, sexual harassment is part of a continuum of different forms of actual and potential forms of gender-based violence residing in higher education systems, ranging from bullying and sexist jargon to sexual abuse and rape. In studies on sexual harassment in higher education from regions other than north/west, different issues are in the foreground, such as demands from male teachers for sexual services from female students in order for them to receive a valid examination certificate from their studies Morley, L. 2011. “Sex, Grades and Power in Higher Education in Ghana and Tanzania.” Cambridge Journal of Education 41 (1): 101–115. The prevalence of sexual assault on students (primarily women) at universities in USA is actually well-documented. See (Voth Schrag Citation2017; also cf. Fedina, Holmes, and Backes Citation2018). Fedina, L., J. L. Holmes, and B. L. Backes. 2018. “Campus Sexual Assault: A Systematic Review of Prevalence Research From 2000 to 2015.” Trauma Violence & Abuse 19: 76–93. — E.N. Agbakoba J.
➥ LEAD JUDGEMENT DELIVERED BY:
Honorable Jsutice E.N. Agbakoba
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ THREE FORMS OF EMPLOYMENT
See the case of SHUAIBU & ORS v. NBC PLC (COCA-COLA) (2020) LPELR-52110(CA) Where the Court of Appeal held that “..there are mainly 3 categories of contracts of employment namely; (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated by statute often referred to as employment with statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt 9) 599, KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (2019) LPELR 4739 (SC) CBN V. IGWILLO (2007) 14 NWLR (Pt 1054) 393.
➥ REFERENCED (OTHERS)