THE Federal University, Oye-Ekiti (FUOYE), Ekiti State, has erroneously appealed to the Supreme Court a lawsuit over its unlawful termination of the appointment of an activist member of the Academic Staff Union of Universities (ASUU) which was dismissed by the Akure Division of the Court of Appeal for lack of diligent prosecution.
FUOYE had also lost the suit which was heard at the Akure Division of the National Industrial Court (NIC) before it took the matter to the Akure Division of the Court of Appeal.
The suit, instituted by Adeyemi Ezekiel Oluwagbemiga, an associate professor in the Department of Demography and Social Statistics, now Faculty of Social Science, for the unlawfully termination of his appointment at FUOYE, was filed on 30th November, 2018.
Oluwagbemiga won the case via a judgement delivered on 12th November, 2019 by the Honourable Justice Oyebiola O. Oyewumi where she declared, after lampooning FUOYE, that the termination of the lecturer’s employment “is null and void and unconstitutional.”
Not satisfied with the judgement, the authorities of FUOYE proceeded to the Court of Appeal where the presiding judge, the Honourable Justice Rita N. Pemu, in October 2021 struck the matter out for lack of diligent prosecution.
The university, unwilling to obey the judgement, proceeded to the Supreme Court where it has filed an appeal praying the apex court to compel the hearing and determination of its appeal. But unknown to the authorities of FUOYE, its legal unit and counsel in the litigation, appeals from decisions of the National Industrial Court do not go beyond the Court of Appeal, as the verdict of the appellate court on decisions arising from any civil jurisdiction of the NIC is final and cannot be appealed to the Supreme Court.
National Record, however, gathered from reliable legal minds that appeals from decisions of the NIC in respect of criminal cases can, however, be made to the Supreme Court. Therefore, since the case between Prof Oluwagbemiga and FUOYE is purely a civil matter, the appeal by the institution to the apex court may be thrown out for lack of jurisdiction.
The origin of the litigation
The lawsuit began when Prof Oluwagbemiga through his attorneys from Falana and Falana Chambers filed court processes at the Akure Division of the NIC praying the court for: one, a declaration that his purported dismissal from the employment of FUOYE via a letter dated 31st October, 2018 is null and void and unconstitutional; two, a declaration that he is still in the employment of FUOYE; three, an order directing FUOYE to reinstate him to his status as Associate Professor without prejudice to his entitlements and promotions which may have accrued to him during the period of his purported dismissal; and four, an Injunction restraining the defendant from further interfering with his rights, privileges and performance of his duties as an Associate Professor in FUOYE.
According to the university don, FUOYE failed to follow the procedure as enunciated in the law regulating his employment before terminating his employment, consequent upon which he instituted this matter.
He averred that rather than the issue of TETFUND research grant purported to be the reason for a purported disciplinary action against him, the real reason for the unlawful termination of his employment was as result of his role as Chairman of ASUU’s Committee on Staff and Students and the role he played in a document titled: “The State of Federal University, Oye-Ekiti: Matters Arising.”
Oluwagbemiga told the court that soon after the circulation of the document; he received a memo dated 23rd August, 2018 from the Chairman of TETFUND, and Vice Chancellor of FUOYE, Prof Abayomi Fasina, to forward progress report of the manuscript development for an academic grant he received sometimes in August, 2017, a request he said he complied with via a letter dated 28th August, 2018. He said following this, he received another memo dated 2nd October, 2018 from the Chairman that his salary has been stopped.
The exchange of letters between the claimant and Prof Fasina continued until he got a query alleging that he (claimant), along with one Dr Chinedu Abrifor and Dr Niyi Akingbe failed to submit research report to FUOYE for which they were given money to the tune of N1.685,000.00 (One Million, Six Hundred and Eighty-Five Thousand Naira).
Coupled with the query, the claimant also averred that on 29th October, 2018, he was also invited to appear before a Disciplinary Committee on TETFUND Intervention Grant the following day where a petition was read to him alleging that he and Dr Akingbe used the lead researcher, Dr Abrifor to collect the TETFUND academic research grant, and that upon his explanation on the allegation, he was exonerated and discharged by the panel. He said contrary to this, he was surprised that his appointment was purportedly terminated via a letter dated 31st October, 2018.
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The university don, while asserting that his disengagement from service did not follow the due process of the law that established FUOYE and the Constitution of the Federal Republic of Nigeria, further stated among other things that the purported disciplinary committee that investigated the petition is an illegal body and that the disengagement was as result of his role as Chairman of ASUU Committee on Staff and Students and the role he played in producing “The State of Federal University, Oye-Ekiti: Matters Arising.”
He additionally argued that according to TETFUND guidelines of May, 2017, there is no limit of time for manuscript production apart from the fact that he was never issued a letter of award and the need for a progress report on the manuscript production, against the backdrop of the fact that it is the duty of the lead researcher, Dr Abrifor, to submit such report. He further affirmed that the research work was duly carried out, evidence of which was presented to the panel and captured in the final report of the panel and that there was no money shared among the research group.
FUOYE’s defence
FUOYE, in its defence, averred that the letter dated 23rd of August, 2018 by TETFUND Chairman was written outside of the time the expected manuscript development publication of research grant collected by the claimant.
In FUOYE’s statement of defence filed by its lawyers, M. I. Abari Esq and D. I. Adesina, the university said the research publication ought to have been published within six months after collecting the research funds as provided by TETFUND regulations and that the progress report of the research was never made available by the research group until the said letter was written.
The defence also averred that the claimant’s letter dated 28th August, 2018 never contained any progress report but instead a letter from a printer and that the letter dated 2nd October, 2018 was issued upon the claimant’s negligence and failure to respond to FUOYE’s memo dated 3rd September, 2018 coupled with his failure to make any progress report on the research project which the defendant received audit query on.
According to the defence, claimant’s group received the N1,685,000 from TETFUND and pocketed it, and that when the claimant was asked by Dr Abrifor before the investigating committee, he did not deny the it. The defence further argued that the letter dated 19th October, 2018 was issued upon the revelation that the claimant and his group did not embark on any research project since the receipt of grant.
The defence among other assertions denied the claimant’s statement that he was confronted with a petition written by Dr Abrifor and that the Committee never exonerated the claimant from its interim and final report on the TETFUND research grant. It also averred that due consideration was given to the claimant’s status and that due process of the law and regulations guiding staff employment were followed and that the investigating committee was never a kangaroo committee.
It also added that the claimant, Dr Abrifor and Dr Akingbe were all queried while the claimant and Dr Akingbe were found to be culpable of gross misconduct of converting the TETFUND research grant to personal use and that their appointments were terminated by the Governing Council upon the investigating committee’s report, although the termination of the appointment of Dr Akingbe was only put on hold pending the final determination of his case pending before the NIC.
On the basis of this statement, the defendant prayed the court to dismiss the action of the claimant which it argued is “unmeritorious, vexatious and refuse the injunctive orders prayed for as an abuse of judicial process.”
Views of the Court
The judgement, delivered on 12th November, 2019 by Justice Oyewumi, who though had then been transferred from the Akure Division to the Abuja Division of the NIC after presiding over the matter from the beginning to the closing arguments, granted almost all the prayers of the claimant and declared the termination of his employment null and void. Read the judgement HERE.
The court held that because it is “statutorily flavoured,” Oluwagbemiga’s employment “enjoys a higher status in law than ordinary master servant relationship.” According to Justice Oyewumi, “the terms and conditions of the employment is [sic] contained in a statute.”
The court further held that the claimant successfully proved his case as demanded by law. “Now, it is the law of common that the burden is on him who alleges unlawful termination/dismissal to discharge by placing before the Court and in support of his case, the document regulating or evincing his employment relationship; the terms and conditions of his employment, who can appoint and remove him; the circumstances under which his appointment can be terminated and the authorized person that can terminate his appointment.
“It is also germane for the claimant to plead all relevant documents and facts upon which his claim is hinged establishing same by credible and cogent evidence… Parties as stated supra are in agreement that their relationship is regulated by the Act establishing the defendant as well as the regulation made thereunder which the claimant tendered in prove of his case,” the judge stated, adding that the point of divergence in the suit is the mode of termination of the claimant’s employment whether it was in strict adherence to the regulation governing the employment and the terms and conditions of employment.
Justice Oyewumi further held that the “position of the law as it had always been, is still that an employment with statutory flavour can only be determined in strict compliance with the procedure relating to the termination or dismissal of employment set out in rules and regulations applicable to the employment…
“Hence for an effective and just determination of a contract of employment protected by statute, the provision of the statute must be satisfied as a breach thereof renders the act of termination ultra vires and hence void. This is because the principle of natural justice, embedded in the doctrine of audi alteram partem is paramount in deciding a case of this nomenclature. It is a constitutional requirement to ensure that parties are offered opportunity to be heard and present their cases in defence of any alleged misconduct before their employment is determined. A breach of same touches on the basis of the contract which will be declared null and void and of no effect by the Court.”
She further asserted: “It is plain from the above provision of the regulation that any misconduct of an employee must be addressed by the Head of Department of the staff vide issuance of query if his answer is satisfactory to the Head of Department, there shall be no further action to it, while an unsatisfactory answer will lead to a departmental disciplinary committee set up to investigate same and their report sent to the University’s disciplinary committee for its further action. In other words the procedure spelt out in the above provision is expected to be strictly followed.
“It is a constant and trite position of the law which has gained notoriety that where an employee is being alleged of misconduct, the employer must inform him via a written notice of query as the case may be, stating the reasons for such allegations against him, he must be given opportunity to defend himself, he must be invited to make representation or defence thereto at a disciplinary investigatory panel set up for that purpose, he must be given opportunity to have prior to the investigatory committee meeting all documents that he would be confronted with and should be allowed to cross examine any witness invited by the committee…
“All these processes elucidated must be adhered to strictly to ensure that fair hearing is dispensed with in such a proceeding as non-compliance thereof may render the process of dismissal or termination null and void.”
Before finally deciding on the matter, Justice Oyewumi excoriated FUOYE for breaching its laid down regulations and the Nigerian constitution in its haste to terminate Prof Oluwagbemiga’s appointment. She noted: “Undoubtedly, the Claimant was issued a query, and he responded to same. He was then invited to the TETfund disciplinary Committee whose report was submitted to the University Disciplinary Committee who sat and concluded its report on the 30th October, while the claimant’s appointment was determined on the following day, i.e. the 31st October, without recourse to the Governing Council whose duty it is to consider same, whose decision would then be communicated to the claimant.
“It is clear as crystal that the defendant’s [sic] whilst in a hurry to show the claimant out of its employ failed to adhere to the provisions of the defendant’s Act and the Staff Regulation (Exhibit A7) stricto sensu. In other words the defendant did not strictly adhere to Clause 14.8 of Regulation Governing the Conditions of Services of Senior Staff on CONTISS 06/CONUASS 01 and Above (Exhibit A7)…
“The defendant closed its eyes to the wrong committed by the said Prof. Abrifor, the team leader, whilst it opened it wide against the claimant in this case. This to say the least is the most discriminatory of the defendant’s action. The team leader should be seen to have control over the fund and the activities leading to the submission of the TETFund research, failure of the team to conclude and submit the research work is as a result of his own laxity, weakness failure.
“I have no hesitation in believing the assertion of the claimant that the action by the defendant was an orchestrated one against him in view of the FUOYE report. The way and manner claimant’s appointment was terminated by the defendant lends credence to claimant’s position. It is upon this premise that I find that the claimant’s termination from the services of the defendant dated 31st October 2018 is unlawful, null and void and thus set aside. Therefore, the Claimant’s employment with the defendant being one clothe with statute, is still subsisting. I so hold.”
The court also granted Prof Oluwagbemiga’s other prayers when Justice Oyewumi held thus: “On the Claimant’s relief seeking for reinstatement to his status as Associate Professor without prejudice to his entitlements and promotions. It is the law that where an employment with statutory flavour has been declared unlawful, the effect is that the employee never left his employment and hence can be reinstated… Reinstatement in labour law refers to putting back an unlawfully dismissed/terminated employee back to his former position before the employment was determined…
“Consequent upon the above, I find that the clamant is entitled to be reinstated back to his erstwhile position without any loss of seniority, rank and entitlement whatsoever. I so hold.
“The Claimant is claiming an Injunction restraining the defendant from further interfering with his rights, privileges and performance of his duties as an Associate Professor in the defendant. It is a fundamental rule that the Court will only grant an injunction only in support of a legal right, where the Claimant has no legal right recognized by the Court, there is no power to grant the said injunction.
“The Claimant has proven that his legal right has been infringed upon by his unlawful termination by the defendant and if the defendant is not restrained it will tamper with his legal right. It is in the light of all the above that I resolve this issue in favour of the claimant, accordingly, the defendant is estopped/restrained from taking any further steps or action against the claimant’s employment as an Associate Professor. I so find and hold.
In sum, the Claimant’s case succeeds in most parts and I make these declarations and order as follows:
“1. That the termination of the Claimant’s employment vide a letter dated 31st October, 2018 from the employ of the defendant is null and void and unconstitutional.
“2. That the termination letter dated 31st October, 2018 is set aside.
“3. That the claimant is still in the employment of the defendant.
“4. That the claimant is entitled to be reinstated back to his erstwhile position without any loss of seniority, rank and entitlement whatsoever.
“5. That the defendant is restrained from further interfering with the claimant’s rights, privileges and performance of his duties as an Associate Professor in the defendant. No award as to cost Judgment is accordingly entered.”
Appeal Court Verdict
Although FUOYE appealed the NIC judgement against it to the Akure Division of the Federal Court of Appeal on 21st November, 2019, just nine days after the NIC judgement, in case No. CA/AK/400/2019, praying the court to set aside the NIC judgement of 12th November 2019.
The case lingered at the Appeal Court until late October, 2021 when it was struck out for “lack of diligent prosecution,” when lawyers from Falana & Falana Chambers, counsel to Prof Oluwagbemiga, sought for the dismissal of the Notice of Appeal in a motion filed on 15th September 2020.
In the motion, the counsel to the university don prayed for two orders, namely, one; “an order of this Honourable Court dismissing the Notice of Appeal filed on 21st of November 2019 against the judgment of the National Industrial Court Akure Division in Suit No. NICN/Ak/64/18 between Federal University Oye Ekiti, Ekiti State Vs. Adeyemi Ezekiel Oluwagbemiga delivered on November 12, 2019 (Hon. Justice O. O. Oyewunmi) for want of diligent prosecution,” and two, for “such order or other order(s) as this Honourable Court may deem fit in the circumstances.”
The Court of Appeal, on Wednesday, 6th October, 2021, over a year after the motion for dismissal of the appeal was filed; the court noted that after hearing T. O. Aguda, counsel to Prof Oluwagemiga, but in the absence of FUOYE, whose counsel was “absent after having been duly served with hearing notice of today’s date,” granted the orders as prayed, with Justice Rita N. Pemu stating: “Appeal No. CA/AK/400/2019 is hereby dismissed for want of diligent prosecution.” Read the Court of Appeal Order HERE.
When contacted on Friday morning and asked his opinion on the lawsuit, especially why FUOYE lost at the Appeal Court with such a sketchy judgement, the head of the Legal Unit of FUOYE, Mr Lawrence Eni, in an obviously angry tone responded: “Am I a Justice of the Court of Appeal?” When this reporter tried to tell him that as the head of the legal unit of the institution, he is in the position to have details, he retorted again: “Am I a Justice of the Court of Appeal, eehh?” and cut the call. He refused to pick further calls made to him when this reporter assumed that the call must have been cut off by poor network connectivity.
But when contacted just after the encounter with Mr Eni, the claimant told National Record that beyond the fact that FOUYE has no evidence to successfully prosecute the litigation including its appeal, it had opted to settle the matter out of court. According to Prof Oluwagbemiga, Mr Eni had on behalf of FUOYE told the Appeal Court that the university had resolved to settle the matter out of court.
“Well, they don’t have the evidence to even defend their case anyway. They filed notice of appeal in November 2019 and by September 2020, we filed a counter-notice that they should strike out their notice. They went back to Court of Appeal that they want to amend something and they left it there for a whole year without doing anything. That is why my lawyer from Falana & Falana Chambers now prayed the court to strike out the case. The court asked the head of the legal unit of FUOYE, Mr Eni, who was in court, and he said they want to settle out of court. I am so surprised that after that the man went to Supreme Court.
“We had appeared before a reconciliation committee and the decision is that they should withdraw every litigation against me as they had appealed at that time to the Appeal Court,” Oluwagbemiga said.
Supreme Court Appeal: error or deliberate?
Less than two weeks after the matter was dismissed by the Appeal Court, FUOYE on 15th October, 2021 headed to the Supreme Court. It is not clear if the university proceeded to the apex court in error or a deliberate attempt to buy time and wear out Prof Oluwagbemiga as the Appeal Court under existing court procedure remains the final appellate authority on civil proceedings from the NIC.
However, in going to the Supreme Court, FUOYE based its appeal on three key grounds. On ground one; it stated that the “Appeal Court erred in law when it struck out the Appellants Motion on Notice filed on 14/10/2020 to amend the Notice of Appeal already filed when the Appellant was present in Court though not represented by Counsel give way to the Respondents motion on Notice seeking to dismiss the appeal.”
FUOYE further argued among other reasons that though “the Appellant was present in court and was represented by the Head, Legal Unit, Mr Lawrence Eni,” it was “not represented by Counsel on record” who was not put on notice of hearing of the application on 6th October 2021. The appellant therefore accused the Appeal Court of “miscarriage of justice” when it dismissed “the motion filed on 14/10/2020 when the Appellant’s Counsel was not put on Notice.”
On ground two, FUOYE averred that the Appeal Court erred in law when it dismissed the Appellant’s Notice of Appeal filed on 21st November 2019, against the judgment of the National Industrial Court, when it dismissed the appeal “for want of diligent prosecution.” It again asserted that as at 6th October, 2021, “it is not clearly ascertainable that any of the Appellant’s counsel on record is served with hearing notice” and that the lawyer that was purportedly informed of the hearing, one Ademi Esq, “on 08023280193 is not one of the Counsel on record and also not the Appellant.”
Here, FUOYE again alleged miscarriage of justice because the Appeal Court heard “the Motion on Notice filed on 15th of September 2020 seeking an Order of Court to dismiss the Notice of Appeal of the Appellant without hearing notice being served on the Counsel on record”, a situation, it said “totally abrogated the appellant’s right of fair hearing.”
On ground three, FUOYE averred that the “Appeal Court erred in law when entertaining the Respondents Motion on Notice dated and filed 15th September, 2020 seeking to dismiss the notice of appeal without giving the Appellant the benefit of fair hearing.” It stated, among other arguments that its “amendment of the Notice of Appeal already filed and sought for by the Appellant will lead to filing of Appellant brief” and that “the presence of the Motion on Notice seeking to amend the Notice of Appeal presuppose the manifest intention to diligently prosecute the Appeal” just as its “proposed Amended Notice of Appeal is already exhibited in compliance with the Rules of Court.”
It therefore prayed the Supreme Court to give an “order allowing the appeal; an order setting aside the decision of the court of Appeal contained in the judgment appeal against; an order restoring the appeal to be heard on merit before the lower court.” Read the Appeal Process HERE.
