Court orders reinstatement of Ekiti University workers sacked by Fayemi’s govt …Read Full Text of Judgement

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One year after they were sacked by the management of the Ekiti State University, Ado Ekiti (EKSU) over what was termed as irregular employment, Justice K.D. Damulak of the Akure Division of the National Industrial Court has directed that 32 Technologists in the University be reinstated immediately.

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The judge also ruled that EKSU should pay the salary of the Technologists from the date of disengagement till date.

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N50, 000 was also awarded against the university as damages.

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The 32 technologists were among the over 1,000 staff of EKSU that were disengaged in December 2019.

Some of the disengaged staff of the Ekiti State University, Ado Ekiti have threatened to drag the institution to court, if it failed to reinstate them within the next 30-days

It should be recalled that in January 2020, the workers, in a letter entitled “Letter on notice and pre-action notice” dated January 22, 2020, written by their lawyer, Olabanjo Ayenakin of Banjo Ayenakin & Co to EKSU Registrar, Olusola Arogundade,threatened to drag the institution to court, if it failed to reinstate them within the next 30-days.

The workers had alleged that they were unlawfully disengaged from the institution.

Ayenakin stated, “We the solicitors to Mrs Oyinlola Omowumi Yinka, Mr Oke Sanmi and Mr Idowu Lawrence Tosin (for themselves and on behalf of the 299 technologists, non-teaching senior staff and junior staff of your institution, who were employed in 2016, but who were unlawfully disengaged on 5th December 2019 of EKSU who are herein referred to as our client and on whose behalf this letter is caused to be written to you.”

The lawyer claimed that the appointments of the sacked workers were regular and proper; contrary to the insinuation that the appointments were irregular.

The lawyers are also seeking “payment of all our clients’ salaries from the time of disengagement till now and thereafter; and promotion of our clients to the deserved position without prejudice to the disengagement”.

Judgement on other suits filed by the other sacked workers will be delivered on January 20, 2021.

TEXT OF THE JUDGEMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D DAMULAK

DATED THIS 8TH DAY OF DECEMBER, 2020

NICN/AD/03/2020

BETWEEN

1. OGUNDIPE JOSHUA OLUWAFEMI

2. OLUBUNMI YETUNDE ABIOYE

3. AYITI AYODEJI AUGUSTINE

4. FAGBEMIRO TENI PATRICIA

5. FABULOUS-FOBOWALE EBENEZER ADEYEMI

6. ADENIYI GRACE FUNMI

7. ADEUYI ADEBOYEJO GLORIA

8. AGBOOLA OKE

9. AINA JAMES OLUWATOSIN

10. AJAYI ADEKUNLE JAMES

11. AKERELE AYODEJI USMAN

12. AKINLEYE IYABODE ABOSEDE

13. ALADESUYI OLUWAFUNMILAYO RUKAYAT

14. ARULOGUN AYOBAMI SUNDAY

15. BELLO OLAYIWOLA RASHEED CLAIMANTS

16. BABATUNDE TOLULOPE PEACE

17. JAIYEOLA RASHEED OGUNNIYI

18. JIMOH ARUNA MICHAEL

19. KOLAWOLE OYEYEMI AYODEJI

20. MORAKINYO TAIWO OLUWAFEYIKEMI

21. ABEJIDE SAMUEL OLADEJI

22. OGUNJOBI OLUWAMAJOWA TITUS

23. OLALUYI OLAWALE JOSHUA

24. OLLA MOSES OLUWAMUYIWA

25. OLORUNLAGBA ADEJOKE OLUYEMI

26. OLUBUNMI OLUWASEUN ADEWALE

27. OLUGBENGA ADEFUNKE BOLANLE

28. OSO OLAWALE ANTHONY

29. OTOIDE TITILAYO FOLAYEMI

30. OWOLABI BOSEDE MAJOMINOH

31. OGUNNIYI AINA JUMOKE

32. OKEBULE OLUWAGBENGA

AND

1. EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE

2. THE GOVERNING COUNCIL,

EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE DEFENDANTS

2. THE VICE CHANCELLOR,

EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE

REPRESENTATION:

P.P Monde with J.S Balogun for the Claimants

Dayo Akinlaja SAN with Genevieve Okoye, Oluwatosin Olanipekun and Adesola Edungola for the Defendants .

JUDGMENT

INTRODUCTION:

1. This judgment borders on the lawfulness of the disengagement of the claimants. The Claimants vide a General form of Complaint filed on the 3rd March, 2020 claims against the Defendants the following reliefs:

i. A Declaration that the disengagement of the claimants as staff of the 1st defendant in the manner it was done was unlawful, irregular, illegal and therefore null and void and of no effect.

ii. An Order for the immediate restoration and reinstatement of the claimants to their offices without loss of salaries, promotions, emoluments and other allowances due to them as staff of the 1st defendant.

iii. Payment of the claimants’ three (3) month salaries, emoluments and other allowances owed them before the purported and unlawful disengagement.

iv. Payment of the claimants’ salaries, emoluments and allowances from the date of their purported and unlawful disengagements till date of judgment and thereafter.

v. An Order of perpetual injunction restraining the defendants whether by themselves or through their servants, agents, privies acting through them or on their behalf from removing the claimants as staff of the 1st defendant without due process of law.

vi. Ten Million Naira (N10,000,000.00) only being general and aggravated damages against the defendants for the unlawful and illegal disengagement of the claimants in the manner it was done.

vii. Cost of this suit.

The Defendants filed a memorandum of Appearance and their Joint Statement of Defence on the 17th March 2020

FACTS OF THE CASE

2. The Claimants were offered appointments by letters of the 1st defendant dated 6th April, 2016 and 7th April, 2016 respectively as Technologists 2. Their appointments were confirmed, thereafter promoted to Technologist 1 on 1st October, 2019 and their appointments were terminated through letters dated 5th December, 2019. The contend that the termination of their employments was unlawful, illegal, irregular, null and void and of no effect as it did not comply with the procedure for any such disengagement of employment with statutory flavor. The Defendants on the other hand contended that the disengagement of the claimants was purely in exercise of the prerogative available to the Defendants under the applicable Regulations.

3. On 20/7/2020,both parties through their counsels and the court agreed to trial on record pursuant order 38 Rule 33 of the Rules of this court, having come to agreement that there were no dispute of facts but of law so counsels filed their final written addresses beginning with claimants counsel.

CASE OF THE CLAIMANTS

4. It is the case of the Claimants that they, upon successful interviews, were offered appointments by letters of the 1st defendant dated 6th April, 2016 and 7th April, 2016 respectively, which were personally addressed to each them, as Technologists 2. That their appointments were confirmed and their confirmation letters stated that their appointments were subject to the University regulations. The claimants were thereafter promoted to Technologists 1 on 1st October, 2019. That their appointments had statutory flavor. That on 6/12/2019 their appointments were terminated through letters of disengagement dated 5th December, 2019. The defendants owe them three months salaries in 2018 which has not yet been paid. That disengaging them summarily without any wrong doing was unlawful, illegal, irregular, null and void and of no effect as it did not comply with the procedure for any such disengagement of employment with statutory flavor. That they can only be disengaged with either three months notice and/ or three months salary in lieu of notice which must be paid ahead or as at the time of disengagement in accordance with the defendant condition of service applicable to the claimants’ offices.

CASE OF THE DEFENDANTS

5. The defendants’ case is that the claimants were all directed through their letters of disengagement to liaise with the office of the Bursar for the purposes of working out their final entitlements, if any, which if they have done would have settled the issue of their alleged entitlement to three months’ arrears of salaries. That the issue of termination of claimants’ employments was not revisited only for reason that the termination had been rightly and validly done in consonance with the regulations guiding the employments, as a result of which the contention of the claimants that their employments were not lawfully terminated is unfounded and indefensible in law. That the disengagement of the claimants was purely in exercise of the prerogative available to them under the applicable regulations. The employments of the claimants were lawfully terminated in line with the governing provisions .

CLAIMANTS’ REPLY TO THE STATEMENT OF DEFENCE

6. The Claimant filed a Rely to the statement of defence on the 4th May, 2020, they stated thus:

That the conditions of service of the 1st defendant as regards the claimants is very clear and there was no need of contacting the Bursar to mutually sort out their entitlements as same are statutorily fixed to the knowledge of the defendants, hence their purported disengagement remains unlawful, wrongful and illegal, null, void and of no effect. Paragraphs 2-6 of the reply raise fresh issues about the bursar having no information about their disengagement and writing a letter to demand for such information and later a memo, the defendants making publications to engage more staff including the cadre of the claimants as well as some staff being retained or reengaged; these are outside the ambit of a reply, neither will these facts help answer the legal question in this case.

FINAL WRITTEN ADDRESS OF THE CLAIMANTS’ COUNSEL

7. The Claimants caused their final written address to be filed on the 13th August 2020; and formulated three (3) issues for the determination of the Court as follows:

i. Whether the disengagement of the claimants who are employees with statutory flavour followed the due process of law having been confirmed and promoted staff of the 1st defendant.

ii. Whether the claimants are entitled to reinstatement having found that their employment was one of statutory flavour hence protected by statute.

iii. Whether the claimants are entitled to general and aggravated damages for unlawful termination of employment.

8. Counsel, relying on the authority of K.S.J.S.C v. Tolani (2020) All FWLR (Pt. 1025) 480 @ 503; also Exhibits A series, B series and C series which represent the Appointment letters, Confirmation Letters and Promotion Letters and Regulations governing the service of the Senior Staff and conditions of service of Ekiti State University at paragraph 2.46, provides that before the Council can terminate the claimants’ appointments, they must either serve them the required notices of 3 months or pay the 3 months salary in lieu of notice but that this, the defendants failed to comply strictly with.

9. Similarly that by paragraph 3.5(b) of the University’s condition of service, the claimants are entitled to be notified in writing of the ground for which consideration is being given to the determination of their appointment and they be given reasonable opportunity of making representations before an investigative committee.

See Abubakar v. Nasamu (2012) 2-3 M.J.S.C 1 and Fidelity Bank Plc v. Monye & 2 Ors (2012) 2-3 MJSC 146 @ 182 – 183. It is therefore submitted that the termination or disengagement of the claimants in the manner it was done was wrongful, unlawful, illegal, null and void and shall be of no effect having not complied with the conditions of service and the terms that governs claimants’ appointments in the 1st defendant and the Court is urged to so hold.

10. As regard issue 2, it is the submission of Counsel that once the Court finds that the claimants’ employments were not lawfully determined and having found that same enjoys statutory flavour, the proper order to make is the reinstatement of the claimants. This position is supported by the case of K.S.J.S.C v. Tolani (supra) @ 512 – 513. Counsel urged the Court to evaluate Exhibits B, C, D, G, I and J properly to confirm the inconsistent and malicious way the claimants were being treated which culminated in the unlawful manner their purported disengagements were carried out. Reference was made to the case of FIRS v. Michael (2014) All FWLR (Pt. 735) 362 @ 385. Again, while referring the Court to the cases of Organ v. NLNG Ltd (2014) All FWLR (Pt. 723) 1836 @ 1858; Comptroller General of Custom v. Gusau (2017) All FWLR (pt. 911) 422 @ 444, Counsel submitted that the claimants are entitled to reinstatement and payment of all their salaries to date.

11. On issue 3, Counsel argued that the claimants are entitled to general and exemplary damages as claimants having proved that the termination of their employments was wrongful and unlawful and that the claimants had suffered both mental and psychological torture, hence this issue should be resolved in favour of the claimants. Generally, counsel urged the Court to hold that the claimants have proved their case and grant the reliefs sought in this suit.

FINAL WRITTEN ADDRESS OF DEFENDANT’S COUNSEL

12. The Defence counsel filed his final written address in compliance with the rules of this Court on the 28th August, 2020 wherein he argued in objection to claimants’ reply and thereafter formulated two issues for the determination of this Court viz:

Issue 1: Whether the disengagements of the claimants by the defendants were/are not unlawful, irregular or wrongful vis-a-vis the regulatory provisions governing their employments at the time of the said disengagements.

Issue 2: Whether given the circumstances of this case, the claimants are not disentitled to be granted the reliefs sought.

ARGUMENT IN OBJECTION TO CLAIMANTS’ REPLY

13. Counsel argued that a proper look at the claimants’ reply filed on the 4th May, 2020, reveals that they went outside the permitted scope of a reply under the law by bringing in new facts which is a supposed memorandum dated 31st January, 2020 and an alleged publication contained at page 20 of 9th March, 2020 edition of the Nation Newspaper, hence the defendants are not in position to react to the alleged newspaper publication that was not mentioned in the Statement of Facts. Emphasis was on the cases Oje & Anor v. Babalola & Ors (1991) 4 NWLR (Pt. 185) pg. 267 and Olubodun v. Lawal (2008) ALL FWLR (Pt. 434) 1468 at 1501 paras E. Counsel therefore contended that reliance cannot be placed on the claimants’ reply dated 4th May, 2020, the accompanying additional witness statement on oath dated same date and the added documents, as they are all predicated on the defective Reply.

14. On Issue 1: counsel submitted that the contract of employment of service between the parties herein is predicated upon the Regulations Governing the service of the Senior/junior staff (2017) made sequel to the Ekiti State University Law No. 12 of 2014. Arising from this, counsel raised two questions viz:

a. What are the statutory terms for determination of the employments of staff in the Regulations?

b. Were the terms violated by the defendants with respect to the determination of the appointments of the present claimants?

15. As to question 1, counsel urged the Court to take a meticulous look at the exhibits attached by the claimants and the Regulations Governing the service of the Senior/junior staff (2017).It is the submission of counsel that while it is not in dispute that the employments of the claimants enjoyed statutory flavour, their disengagements were/are in accordance with the prescription of the regulations governing their service to the defendants and cannot be faulted. That the case made out in the pleadings of the claimants vide paragraph 23 of the statement of facts, is that if they must be disengaged by the defendants, they had to be given three months notice or paid three months’ salaries in lieu of notice at the time of disengagement and that this constitutes admission against interest, which is bound to be prejudicial to their case. Reference is made to case of Adegboye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 444 among others. Counsel argued further that it is by choice that the claimants failed to approach the office of the University Bursar for purposes of claiming all that might be due to them as final entitlements from the University and that by this, the claimants cannot justifiably claim that their disengagements were/are unlawful because they were not paid the requisite three months’ salaries in lieu of notice at the time of disengagement.

16. Again, in response to the contention of the claimants that the defendants acted wrongly by not taking them through the disciplinary procedures provided in the Regulations guiding their employments, counsel argued that the reference made to paragraph 3.5(b) of the Regulations by the claimants’ counsel is inapposite in this case as the claimants were not disengaged for misconduct and must be discountenanced.

17. It is also argued that although it is incorrect that the defendants gave different or inconsistent reasons for the disengagement of the claimants, the issue of giving reason for the disengagement is of no moment and would not suffice to render unlawful the lawful disengagements of the claimants as it is settled in law that where there is a right to do a thing, the motive with which it is done is immaterial to its validity. See Comm. for Works, Benue State & Anor v. DEVCON Development Consultants Ltd & Anor (1988) 7 SC (Pt. 1) 44 at 74. Additionally, it is contended that the publication in Exhibit I has nothing to do with the validity of the right to disengage the claimants under the applicable Regulations as pointed out above.

18. Counsel contended that having shown that the defendants were willing to pay the claimants’ their final entitlements, which include the three months’ salaries in lieu of notice, it is clear that the answer to question 2 is in the negative. That is, the terms of the claimants’ employments were not violated by the defendants in any manner in the course of terminating their employments. Therefore, the claimants cannot be reinstated.

19. Counsel canvassed that the first relief sought by the claimants is a declaratory one, which cannot be granted unless the claimants have established the claim on the strength of their case. It is the submission of Counsel that the claimants have not been able to establish in this case that their appointments with the 3rd defendant were unlawfully determined and therefore urged the Court to refuse to make the declaration sought by the claimants. Reliance is placed on the authorities of A.G. Cross River State v. A.G. Federation (2012) 16 NWLR (Pt 1327) p. 425 at 487-499 and Odumeru v. Adenuga (2000) 12 NWLR (Pt. 682) p. 466 at 481. Furthermore, it is argued that the 2nd, 4th, 5th and 6th reliefs that are dependent on the success of the 1st declaratory relief are bound to be refused as it is trite law that where a claim or relief is dependent on and flows from a declaratory relief sought and the declaratory relief is refused, it follows that the consequential claim or relief must also fail. See Yusuf v. Co-op Bank Ltd (1994) 7 NWLR (Pt. 359) 676 at 696. On the whole, defence counsel urged the Court to dismiss the case of the claimants in its entirety.

CLAIMANTS’ REPLY ON POINT OF LAW TO THE DEFENDANTS’ FINAL WRITTEN ADDRESS

20. Claimants’ Counsel filed a Reply to the defendants’ final written address on 12th October, 2020 and submitted that the objections raised by the defence counsel against the claimants’ reply to the defendants’ defence are misconceived as it represents a mis-apprehension of claimants’ case from the statement of facts and also a resort to technicalities rather than substance/justice of the case, he then urged the Court to discountenance the objection and dismiss same as he made reference to the authorities of Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1 @ 52 and Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 272 @ 292.

21. In reply to the arguments of the defendants, Counsel submitted that the defendants’ address did not address the fundamental question as to whether the termination of the appointments of the claimants complied with the stipulated provisions in the contract of service. It is argued further that the conditions of service being clear and unambiguous must be given their clear literary interpretation. Also that the argument of the claimants lack evidence to support the outstanding three (3) months salaries are baseless and totally a misapprehension of the law governing employments with statutory flavour and the case of the claimants as pleaded. He urged the court to discountenance the arguments of the defendants for being frivolous and unmeritorious and grant the claims of the claimants as established.

COURT’S DECISION

22. I have read the pleadings and the legal submissions of both counsels. I am of the opinion that the issue for determination is whether the claimants have proven their entitlement to the reliefs claimed.

23. In determining this issue, it shall be necessary to determine 1. Whether the employments of the claimants enjoy statutory protection and 2. Whether the disengagement of the claimants was compatible with their status of employments.

1. Whether the employments of the claimants enjoy statutory protection.

24. The essence of a trial on record pursuant to order 38 Rule 33 of the Rules of this court is that the issue or issues for determination of the court are all legal questions. The question, whether the employments of the claimants enjoy statutory protection, means that it is important to determine the status of the employments of the claimants from the statute establishing the University, the University regulation and the claimants’ letters of employments.

26. An employment is said to enjoy statutory flavor when the tenure, discipline and other conditions are as provided in the statute establishing the employee or institution. An employment with statutory flavor was defined by the court of Appeal in the case of N.E.P.A. v. EDEGBERO (2000) 14 NWLR (Pt.688)615; (2000) LPELR-6884(CA) relying on the decision of the Supreme Court decision in IMOLOAME V. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 thus;

What in effect is an employment with statutory flavour. The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as: “Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”.:

 

27. The claimants’ counsel rightly gave a take off point as the case of K.S.J.S.C V

TOLANI (2020) ALL FWLR (PART 1025)P.480 at 503 where the Supreme Court

Held thus;

The following two elements must exist before a contract of employment

can be said to have statutory flavor;

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 provisions regulating the employment of the staff

of the category of the employee concerned especially in matters of discipline.

28. A statute is a law made by the national or state legislature. The defendant is a creation of law, University of Ado-Ekiti law of 2008, amended in 2011 and 2014. To this extent, the first requirement is met. The second requirement is whether the said law or the regulations made pursuant to that law protects the employment of the category of the claimants so that they cannot be terminated by notice or salary in lieu of notice for services not required.

28. I have read the 24 sections of the University of Ado-Ekiti law of 2014. I find in section 5(a)(iii), the power of the University to institute academic, administrative, technical, professional and other posts and offices and to make appointments thereto. Section 11(a)(c) empowers the University to make statutes which means Rules and Regulations.

29. It is also worthy to note that the claimants are staff of a state owned University. They are accordingly in the public service of the state according to section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended being staff of an Educational institution established and financed by the Government of Ekiti State.

30. In DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR-11855(CA) the court held that;

The appellant’s employment, including the procedure for terminating his appointment is regulated by the terms and conditions of Exhibit “F”, the respondent’s Staff Conditions of Service. Consequently, the justice of this case demands that the termination of the appellant’s’ employment must be in accordance with those terms and conditions contained in Exhibit “F” in consonance with the rules of natural justice. What is more, where as in this case, an employee by virtue of Exhibit “A” is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer. The employment cannot be determined at the will of parties but in accordance with the terms and obligations of the conditions of the employment.

31. I accordingly find that the claimants are not in a servant and master relationship with the 1st defendant. The employment cannot be determined at the will of parties but in accordance with the terms and obligations of the conditions of the employment.

32. The defendants, through their learned counsel, Dayo Akinlaja SAN, at least conceded to this position when the learned silk submitted in paragraph 5.7 of the defendants final written address as follows;

In the surrounding circumstances, it is humbly submitted that while it is not in dispute that the employments of the claimants enjoy statutory flavor, their disengagement were/are in accordance with the prescription of the regulations governing their service to the defendants and cannot be faulted.

The next duty of the court therefore is to determine the question

2. Whether the disengagement of the claimants was compatible with their status of employments which enjoyed statutory flavor.

32. By the letters of appointments, paragraphs 2 and 4 provide as follows;

2. The appointment is probationary for a period of two years and is subject to the regulations of the University and to such conditions governing appointments generally as may be made by the council of the University from time to time.

4.The appointment may be terminated by either side giving one month notice in writing of the intention to do so or by the payment of one month salary in lieu of notice.

32. Similarly, paragraph 2 of the confirmation of appointment states as follows;

Your appointment becomes tenable till retiring age and shall remain subject to the regulations of the University and such conditions of service as may be approved by the council of the University from time to time.

33. Paragraph 2.19 of the Regulations made pursuant to section 11 of the Act states thus;

The appointment of all staff on CONTISS 06 or CONUASS 01 and above, shall normally be tenable to retirement age of 65 years for administrative and professional staff, and 70 for Academic staff at the professorial level and 65 years for academic staff below the level of professor, unless due notice in writing, of termination of appointment have been given to, or by the University, or the appointment is otherwise terminated under the provisions of these regulations.

34. Now paragraph 2.46(ii) of the regulations relied upon by claimants dealing with notice of termination of appointment provides as follows;

In the case of senior administrative, technical and professional shall be one month for those who are on probation and three months for staff whose appointment are confirmed provided that such staff shall be entitled to one month or three months salary in lieu of notice.

35. Now, all the claimants were promoted to the position of Technologist1 on CONUASS 08 step 01. By Paragraph 2.19 of the Regulations, the appointment of all staff on CONTISS 06 or CONUASS 01 and above, shall normally be tenable till retirement age. By the authority of

DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR-11855(CA), where, as in this case, an employee is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer. It follows therefore that determination of such appointment for “services no longer required” is not compatible with the status of the claimants. Similarly, determination by notice or salary in lieu of notice as contained in the 1st defendant’s regulation is also incompatible with the status of an employee in the pensionable cadre in the public service of a state.

36. Moreover, Paragraph 2.46 of the regulations requires the giving of three months notice or three months salaries in lieu of notice to the claimants. The claimants contend that this was not done but the defendant contend that if the claimants had seen the Bursar as directed in their letters of disengagements; this would have been sorted out.

Now, paragraphs 3 of the letters of disengagement provide as follows;

By a copy of this letter, the Bursar is being informed of this development and you are required to liaise with his office so as to work out your final entitlement (s) if any.

37.This paragraph is not and cannot be a reference to three months salaries in lieu of notice which was in law supposed to be paid immediately. I agree with the claimants counsel that three months’ salaries of the claimants is not something that requires working out. The paragraph is a reference to final entitlements which should include gratuity and any other terminal benefit as provided in the regulations but it cannot be a reference to outstanding salaries and salaries in lieu of notice.

38. The implication of the above is that the defendants did not comply with the regulations and that makes the disengagement null and void. The result also is that the claimants are entitled to an order of reinstatement and any amount owed them before their disengagement and thereafter till retirement and I so order. See

DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS (2016) LPELR-41244(CA) where the court held;

“Instructively, it’s a trite principle, that once a dismissal or termination of the appointment of an employee is declared by a Court of competent jurisdictional competence to be null and void, the parties are back to the status quo. Thus, the said dismissed employee or whose employment is terminated must automatically be reinstated. See KWARA STATE CIVIL SERVICE COMMISSION V. ABIODUN (2009) (Pt. 493) 1315 @ 1346 paragraphs F – G; FMC IDO-EKITI v. OLAJIDE (2011) ALL FWLR (Pt. 593) 1944 .

39. The claimants have asked for N10,000,000.00 as general damages. Having made an order of reinstatement and special damages by way of payment of salaries owed, the grant of general damages will amount to double compensation. See UMAN V. OWOEYE [2003] 9 NWLR (PT.825) PG. 221 where the court held;

“It is trite that in a plaintiff’s claim for general damages the court should scrutinise the claims so as to avoid double compensation. In that by the rule of double compensation, if a plaintiff recovers in full under special damages he will not be entitled to recover under general damages. Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530, Soetan v. Ogunwo (1975) 6 SC 67. The claim for general damages is refused.

40. Claimants are also arguing that the defendants were supposed to satisfy the provisions of paragraph 3.5(b) of the condition of service but learned defence counsel argued that paragraph 3.5 deals with disciplinary procedure and the claimants were not removed on grounds of misconduct as a disciplinary process.

41. I have taken a close look at the attached regulations governing the service of senior staff, paragraph 2.46, notice of termination of appointment, is in chapter two which deals with appointments and promotions while chapter three deals with discipline and there are two paragraphs 3.5. The first one deals with removal of an officer for general inefficiency. The second paragraph 3.5 has a subparagraph (b) and is as quoted by claimants counsel, it deals with “removal of and discipline of academic and administrative and technical staff’.

42. The letters of termination only cited “your services are no longer required by the University” as reason for the termination. I agree with the defendants counsel that the claimants were not removed as a disciplinary measure so paragraph 3.5 (b) is not applicable.

43. In summary therefore it is hereby declared and ordered as follows;

1. The employments of the claimants with the defendants enjoy statutory flavor.

2. The employment of the claimants with the defendants is regulated by the defendants statute,Regulations and the claimants’ letters of employment.

3. The disengagement of the claimants in the manner it was done was unlawful, null and void.

4. The claimants are hereby reinstated to their erstwhile positions in the 1st defendant.

5. The 1st defendant is hereby ordered to pay the claimants their three months salaries owed them before their unlawful disengagement.

6. The 1st defendant is hereby ordered to pay the claimants their salaries, emoluments and allowance and from the date of their unlawful termination till reinstatement today 8th December, 2020 and subsequently till retirement.

7. The claimants are not entitled to general damages.

8. The defendants are also to pay to each claimant cost of N50, 000.00.

9. The salaries and cost up till today 8th December, 2020 are to be paid within 30 days of this judgment or the amounts will attract 10% interest per annum.

This is the judgment of the court and it is entered accordingly.

………………………………………

HONOURABLE JUSTICE K.D.DAMULAK

RESIDING JUDGE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D DAMULAK

DATED THIS 8TH DAY OF DECEMBER, 2020

NICN/AD/03/2020

BETWEEN

OGUNDIPE JOSHUA OLUWAFEMI & 31 ORS ……………….. CLAIMANTS

AND

3. EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE

2. THE GOVERNING COUNCIL,

EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE DEFENDANTS

4. THE VICE CHANCELLOR,

EKITI STATE UNIVERSITY, ADO-EKITI, EKITI STATE

JUDGMENT ORDER

WHEREAS The Claimants vide a General form of Complaint filed on the 3rd March, 2020 claims against the Defendants the following reliefs:

i. A Declaration that the disengagement of the claimants as staff of the 1st defendant in the manner it was done was unlawful, irregular, illegal and therefore null and void and of no effect.

ii. An Order for the immediate restoration and reinstatement of the claimants to their offices without loss of salaries, promotions, emoluments and other allowances due to them as staff of the 1st defendant.

iii. Payment of the claimants’ three (3) month salaries, emoluments and other allowances owed them before the purported and unlawful disengagement.

iv. Payment of the claimants’ salaries, emoluments and allowances from the date of their purported and unlawful disengagements till date of judgment and thereafter.

v. An Order of perpetual injunction restraining the defendants whether by themselves or through their servants, agents, privies acting through them or on their behalf from removing the claimants as staff of the 1st defendant without due process of law.

vi. Ten Million Naira (N10,000,000.00) only being general and aggravated damages against the defendants for the unlawful and illegal disengagement of the claimants in the manner it was done.

vii. Cost of this suit.

AND AFTER considering the written submissions of P.P Monde for the Claimants and Dayo Akinlaja SAN for the Defendants.

It was held that the claimants’ case succeed and the court orders as follows;

COURT ORDER

1. The employments of the claimants with the defendants enjoy statutory flavor.

2. The employment of the claimants with the defendants is regulated by the defendants statute,Regulations and the claimants’ letters of employment.

3. The disengagement of the claimants in the manner it was done was unlawful, null and void.

4. The claimants are hereby reinstated to their erstwhile positions in the 1st defendant.

5. The 1st defendant is hereby ordered to pay the claimants their three months salaries owed them before their unlawful disengagement.

6. The 1st defendant is hereby ordered to pay the claimants their salaries, emoluments and allowance and from the date of their unlawful termination till reinstatement today 8th December, 2020 and subsequently till retirement.

7. The claimants are not entitled to general damages.

8. The defendants are also to pay to each claimant cost of N50, 000.00.

9. The salaries and cost up till today 8th December, 2020 are to be paid within 30 days of this judgment or the amounts will attract 10% interest per annum.

Hon. Justice

K.D. Damulak,

Judge

ISSUED AT AKURE UNDER THE SEAL OF THE COURT AND HAND OF THE PRESIDING JUDGE THIS 8TH DAY OF DECBER 2020.

Salim O. Ibrahim

Principal Registrar

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