Federal Polytechnic Bauchi & Anor V. Abdulfattah Aboaba & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Justice of Bauchi State holden at Bauchi, (hereinafter referred to as the trial Court) delivered on the 4th day of March, 2004, per H. M. Tsammani J.

The 1st and 2nd respondents as applicants severally sought and obtained the leave of the trial Court to apply for the enforcement of their fundamental rights to fair hearing, pursuant to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution). They subsequently by way of originating summons filed their respective complaints against the appellants as respondents, in line with the provisions of Order II Rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (hereinafter referred to as the Rules).

By consent of both sides, the respondents’ learned counsel applied for and the trial Court granted the consolidation of the two suits of the respondents. Thereafter, the two respondents filed a kind of joint originating summons and Statement pursuant to Order II Rules 1, and 3 of the Rules, respectively. These are contained in pages 18 to 24 of the record of appeal. In furtherance of the application, the respondents submitted five (5) questions for determination by the trial Court, thus:

1. Whether the Appointments and Promotions Committee of the Snr. Staff of the Federal Polytechnic Bauchi created by paragraph 3(2) (a) of the second schedule to the Federal Polytechnic Act, Cap. 139 has powers to make recommendations for the termination of the applicants’ appointments to the Governing Council of the Polytechnic.
2. Whether the Appointments and Promotions Committee of the Senior Staff of the Federal Polytechnic Bauchi which is statutorily required to make recommendations to the Governing Council was constituted in such a way as to secure its independence and impartiality, when five of its seven members were also members of the Governing Council, which recommended to the Council disciplinary action against the applicants, and later sat as Council members to approve their own recommendation.
3. In the light of the provisions of Section 12(1)(a) and (b) of the Federal polytechnic Act, Cap. 139, whether the Governing Council of the Federal Polytechnic, Bauchi could remove the applicants being academic and senior staff of the Polytechnic without the council itself giving prior notice of reasons for their removal and affording them opportunity to make representations to the council in person.
4. If the answer to the third question is in the negative, whether the termination of the appointments of the plaintiffs by the 2nd respondent is not an infringement of their right to be heard guaranteed by Section 36(1) of the Constitution and amplified by Section 12(7) (a) & (b) of the Federal Polytechnic Act.
5. In the light of answers to the above questions, has the applicants’ fundamental right to fair hearing not been breached by the 2nd respondent’s termination of their appointments:-

i. When the Appointments and Promotions Committee exceeded its statutory powers by recommending the termination of the applicants’ employment to the 2nd respondent.

ii. When five of the members of the Appointments and Promotions Committee that investigated the applicants recommended disciplinary action against them, later sat as Council members to approve their own recommendations, meaning that the same group of people investigated, recommended, and approved their own recommendations.

ii. When the statutory right of applicants to be informed by the 2nd respondents of reasons for the intended removals and their right to be afforded opportunity of making representations in person to the 2nd Respondent were clearly denied them.

Consequent upon the determination of the above questions, the respondents sought for the following reliefs:

a. AN ORDER setting aside the termination of the applicants’ employment with the 1st respondent, the process having violently breached their fundamental rights to fair hearing.

b. AN ORDER of payment of the applicants’ salaries and allowances from the date of termination till date.

c. AN ORDER deeming the applicants as being still staff of the 1st respondent, and being entitled to all the rights and privileges of their positions.

d. AND FOR SUCH ancillary or further orders as may be deemed appropriate.

The appellants in opposing the respondents’ application, filed a counter affidavit of twelve (12) paragraphs, contained in pages 33 to 36 of the record of appeal. For clarity and easy reference,, the salient paragraphs 4 to 11 of the said counter affidavit are reproduced thus:

4. That I have been informed by the Registrar of the 1st respondent, Mal. Labara Ibrahim in his office on the 26th November, 2003 at about 12:00 noon which information i verily believe to be true as follows:

a) That the 1st applicant was not employed by the 1st respondent on the 10th April 1997 as Technologist II and his appointment was not regularized on the 20th May, 1998.