FUTMINNA v. OMANAYIN (2022)

FUTMINNA v. OMANAYIN

(2022)LCN/16703(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 12, 2022

CA/A/1149/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA APPELANT(S)

And

YUNUS ADINOYI OMANAYIN RESPONDENT(S)

RATIO

THE POSITION OF LAW ON CHALLENGING THE FINDING OF A COURT

It is very important to note from the onset that a finding of Court, as a general rule, can only be challenged with a specific ground in the notice and grounds of appeal. Where the need arises to challenge whatever finding of a Court in a judgment, such challenge can only be grounded on a ‘ground’ of appeal challenging the decision. In the absence of a ground challenging the specific decision, the appellant cannot be allowed to raise any issue in respect of such finding, without a ground of appeal upon which it can be anchored. PER MUSTAPHA, J.C.A.

WHETHER OR NOT THE ESSENCE OF AN APPEAL IS THE GROUNDS OF APPEAL

WHETHER OR NOT ISSUES FORMULATED FOR DETERMINATION BY PARTIES MUST ARISE FROM THE GROUNDS OF APPEAL

The law is trite that issues formulated for determination by parties must derive from, or relate to a ground or grounds of appeal. It is not allowed for an issue to be formulated outside the valid grounds of appeal contained in a notice of appeal. See AWUSE VS. ODILI (2004) 8 NWLR (PT. 874) 494; EYIGEBE VS. IYAJI (2013) 11 NWLR (PT. 1365) 407; In HALILCO (NIG) LTD VS. EQUITY BANK OF (NIG) LTD (2013) 12 NWLR (PT. 1367) page 1. The Supreme Court held in MACFOY VS. UNITED AFRICAN CO. LTD. (1962) AC 152, that framing an issue for determination in an appeal outside the grounds of appeal is tantamount to putting something on nothing. It cannot stand. In an appeal, an issue for determination must be derived, framed or distilled from a valid ground of appeal or a combination of grounds of appeal. Any issue framed outside the grounds of appeal is incompetent and liable to be struck out. PER MUSTAPHA, J.C.A.

THE MEANING OF THE TERM “ADMISSION”

Admission means a voluntary acknowledgment made by a party of the existence of the truth of facts which may be adverse to the claims or entrenched position of the appellant. An admission made on a pleading, as in this case, needs no further proof and a party admitting is estopped from denying the facts; See NIGERCHIN INDUSTRIES LTD V. OLADEHIN & ANOR (2006) 13 NWLR Pt. 998 Pg.536.
It is now a question of fact, this Court has a responsibility, in deciding whether the Appellant has indeed made an admission, what needs to be considered is the totality of pleadings of the Appellant. Paragraphs in the pleading should not be considered in isolation but should be read in the entire context of the pleading. PER MUSTAPHA, J.C.A.

THE DUTY OF THE COURT WHEN DETERMINING THE RIGHTS OF PARTIES BEFORE IT

A Court in the course of determining the rights of parties, must always detach itself of sentiments and be dispassionate in its treatment of any matter before it. The resultant effect of non-compliance with or breach of right to fair hearing, particularly in the course of conduct of a hearing is the invalidation of such proceedings with the end result that the said proceedings will be rendered null and void. See AKOH V. ABUH (1988) 3 NWLR (PT. 85) 696. In the instant case, the proved fact, that the Respondent was unnecessarily and unduly shut out, by reason of the fact that witnesses were called in his absence, means he did not get to see them or hear them, much less cross-examine them, culminating in a gross breach of his right to fair hearing and thus rendering the decision reached by the committee null and void in absolute terms.
I will like to recognize that the allegation against the Respondent is quite serious both in terms of consequences and nature; it does not matter what offense one is accused of committing, the law requires he be given a fair hearing, because the presumption of innocence is the cornerstone of our adversarial system of criminal trial. The effect of denial of fair hearing is trite in law. In other words, once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at, becomes a nullity. See AKINFE V. THE STATE (1988) 3 NWLR (PT.85) 729 AT 753 AND BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290 AT 333. PER MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court, Minna Division, delivered on the 7th of November, 2019, by Hon Justice K. D. Damulak.

FACTS IN BRIEF:
The Respondent, as claimant sought the following reliefs at trial:
1. A Declaration that the dismissal of the claimant’s appointment was in gross violation of his right to fair hearing.
2. An Order compelling the defendant to restore the appointment of the claimant forthwith,
3. An Order mandating the defendant to pay all salary, allowances and arrears with effect from the date of his purported dismissal until the final determination of this suit.
4. Cost of the suit.

The Respondent who was a lecturer at the department of Geology, of the Appellant was accused of sexually harassing one Deborah Ogbaji, a student of the same department. The management of the university issued a query to the Respondent, which he answered, as per Exhibit YAO 2 and YAO 4. A disciplinary committee set up to investigate the allegation found the Respondent guilty of misconduct, as per the report of the committee, Exhibit YAO 8; he was consequently dismissed from service, see Exhibit YAO 5. At trial, the Respondent testified as the sole witness, and tendered nine Exhibits, Exhibits YAO1-9. The deposition of the Respondent is at pages 6-7 of the record of appeal, while the evidence of the claimant under cross-examination is at page 141 of the record. The conditions of service for senior staff was tendered through the Respondent under cross-examination as Exhibit PYAO 10.

The statement of defence is at pages 27 to 30 of the record of appeal; the Appellant also called one witness in defence of the suit at trial, her deposition is at pages 32 to 36 of the record and her evidence in cross-examination is at pages 143 to 144 of the record.

In the judgment of the lower Court, delivered on the 7th of November, 2019, at pages 149 to 158 of the record, the following reliefs were granted:
1. It is hereby declared that the dismissal of the claimant by the defendant was unconstitutional, unlawful, null, void and of no effect whatsoever.
2. The claimant is hereby reinstated to his position from today the 7th day of November, 2019 without any loss of remuneration.
3. The defendant is hereby ordered to pay all salaries, allowances and arrears to the claimant from the date of his purported dismissal to the day of this judgment.
4. I award the cost of N100,000 in favour of the claimant.

In its judgment, the trial Court found that the Respondent was not given a fair hearing by the Appellant’s disciplinary committee, because the Respondent was not present when witnesses testified. Dissatisfied, the Appellant appealed, by a notice of appeal dated and filed on the 15th of November, 2019, on the following grounds shorn of their respective particulars; the notice of appeal is at pages 159 to 161 of the record:
GROUNDS OF APPEAL:
GROUND I:
The learned trial Judge erred in law when he held that the Respondent was not given fair hearing by the Appellant’s Staff Disciplinary Committee before he was found liable for the misconduct of sexual harassment and consequently dismissed. Based on this erroneous finding, the learned trial Judge set aside the dismissal of the Respondent and made an order for his reinstatement.
GROUND II:
The judgment is against the weight of evidence.

From these grounds, a sole issue was formulated on behalf of the Appellant in the brief filed on its behalf by Anthony Orifunmishe Esq., on the 19th of June, 2020, but deemed properly filed on the 6th of December, 2020:
Whether from the totality of the pleadings and evidence adduced by the respondent, the trial Court was right to conclude that the respondent was not given fair hearing by the appellant’s disciplinary committee before his dismissal and consequently declared the dismissal unlawful, null and void when the respondent did not establish a case to entitle him to the judgment given in his favour.

The Respondent adopted the sole issue for determination in the brief filed by M.E. Abubakar Esq., on the 4th of January, 2022. In response, a reply brief was filed on the 31st of January, 2022.

The appeal will be decided on the sole issue for determination; whether from the totality of the pleadings and evidence adduced by the respondent, the trial Court was right to conclude that the respondent was not given fair hearing by the appellant’s disciplinary committee before his dismissal and consequently declared the dismissal unlawful, null and void when the respondent did not establish a case to entitle him to the judgment given in his favour.

It is submitted for the appellant that the relief granted by the trial Court was not sought by the Respondent, whether in the originating complaint or statement of facts, and so the Court was wrong to have granted a relief not sought by the Respondent; WEMA BANK PLC V ARISON TRADING AND ENGINEERING CO LTD (2017) ALL FWLR part 881 page 1007.

That the Respondent only instituted the suit to challenge his dismissal from employment, and so the case ought to have been on terms of the conditions of service pleaded; WAEC V OSHIONEBO (2007) ALL FWLR part 370 page 1501 and ANTE V UNIVERSITY OF CALABAR (2011) FWLR part 41 page 1909.

That declaratory reliefs are not granted as a matter of course, they are based on credible evidence; SULE V HABU (2012) ALL FWLR part 1910 and YUSUF V MASHI (2017) ALL FWLR part 912 page 664; that also the respondent did not plead or prove the regulation governing his employment; he also did not plead or prove the terms and conditions of service or any provision of statute regulating the employment; OKEME V CIVIL SERVICE COMMISSION EDO STATE (2001).

Learned counsel contends that the Respondent’s allegation of denial of fair hearing was not based on any breach of the procedures in the condition of service or the statute regulating employment; AJI V CHAD BASIN DEV AUTHORITY (2016) ALL FWLR part 824 page 175.

That an employee challenging his dismissal from an employment cannot found his case solely on the allegation of denial of fair hearing; the employee must, as a condition precedent, base his case on the condition of service by pleading and proving the terms and conditions of his employment and then show in what manner his dismissal breached the said terms and conditions of his employment.

It is further submitted that the Respondent did not provide any proof of violation of the provisions of the condition of service in the Respondent’s dismissal, there was simply no evidence placed before the trial Court upon which the trial Court held that the dismissal was unconstitutional, unlawful, null and void.

That the procedure for the hearing of a disciplinary case in the Appellant’s employment is contained in Section 7 (1) of the condition of service, i.e. exhibit 10, and that this procedure is the same with Section 15 (1) of the FUT Act for the removal of members of academic, administrative or professional staff of federal universities of technologies.

Learned counsel submits that the Appellant complied with the laid down procedure in dismissing the Respondent, and the Respondent was satisfied with the procedure followed, because he admitted he was served with a query and he replied.

That from the Respondent’s own evidence, it is clear that he was given notice of the allegation of sexual harassment, and he made written representation; before the disciplinary committee was set up to Investigate the allegation; and that the trial Court held he was not given a fair hearing, simply because he was not present when witnesses gave evidence before the committee. Learned counsel contends the conditions of service, which contains the terms and conditions limiting, regulating and guiding the employment relationship; and therefore the disciplinary procedure to be followed in the discipline of the Respondent should be limited to the conditions of service.

Learned counsel further contends that Section 15 of (1) of the FUT Act and 7 (1) of exhibit PAO 10 are specific as to the manner of fair hearing in disciplinary proceedings, and that the requirement of fair hearing in the condition of service and the FUT Act is no more than allowing the Respondent to appear before the disciplinary committee and be heard, and this procedure was complied with by the Appellant. It is not the requirement that the witness gives their evidence in the presence of the Respondent; OJO V UNIVERSITY OF ILORIN (2017) ALL FWLR part 892 page 1989.

It is submitted in response that the contention that the lower Court granted a relief not prayed did not arise from any ground of appeal; MR. ALLWELL OHAJUNWA & ORS V CHIEF OBELLE & ORS (2008) 3 NWLR part 1073 page 52; and that in any event, what the trial Court granted was from one of the reliefs claimed in paragraph one; N.S.I.T.F V IYEN (2014) 9 NWLR part 1412 page 349.

That it is not necessary for Courts to pronounce the reliefs claimed by parties word for word; it can be couched in such a manner as to give it meaning and context.

That also the Respondent pleaded his appointment, and those facts were admitted by the defendant in paragraph 2 of their statement of defence, and the defendant went on to plead a copy of the conditions of service i.e. exhibit PAYO 10; EGOR V OVAT (2014) ALL FWLR part 755 page 291.

Learned counsel further submits that where an action is proved to be in gross violation of any law or the constitution, the appropriate order to make is to declare the act or omission null and void; and that fair hearing does not only depict that the person is given an opportunity to defend himself only; NJC V HON JUSTICE IYABO YERIMA (2014) and BRITISH AIRWAYS V MAKNJUOLA (1993) NWLR part 311 page 276.

It is submitted in reply that ground two of the notice of appeal covers the issue that the trial Judge granted a relief not sought; and that the first relief granted is not a recouch of the first claim but a totally new relief, and is also not a consequential relief as such the trial Court was not competent to grant same; AIGUOKUNRUEGHIAN V IMARUGHERU (2018) ALL FWLR part 951 page 1898 and NYAKO V ADAMAWA STATE HOUSE OF ASSEMBLY (2018) ALL FWLR part 921 page 99.

That also merely presenting the employment letter in evidence is not enough proof of the terms and conditions of employment; and that the claimant is only allowed to lead evidence on the case he pleaded, a plaintiff cannot rely on the evidence of the defendant where the plaintiff did not plead facts which the evidence can support.

It is contended that parties are bound by their pleadings and no party is allowed to go outside their pleadings to make a different case from that which they pleaded; IBRAHIM V OBAJE (2018) ALL FWLR part 937 page 1682 and ZACCALA V EDOSA (2018) ALL FWLR part 926 page 1.

RESOLUTION:
It is very important to note from the onset that a finding of Court, as a general rule, can only be challenged with a specific ground in the notice and grounds of appeal. Where the need arises to challenge whatever finding of a Court in a judgment, such challenge can only be grounded on a ‘ground’ of appeal challenging the decision. In the absence of a ground challenging the specific decision, the appellant cannot be allowed to raise any issue in respect of such finding, without a ground of appeal upon which it can be anchored.

It is settled law, that a ground of appeal is the focus of any appeal. It is the essence of the appeal; and the totality of the reasons why the decision complained of is considered wrong by an Appellant, see EHINLANWO V. OKE (2008) 15 NWLR (PT. 1113) 357; UGBOAJA V. AKITOYE-SOWEMIMO (2008) 15 NWLR (PT. 1113) 278; AKPAN V. BOB (2010) 17 NWLR (PT. 1223) 421. The objective of a ground of appeal is to notify the Respondent, the nature of the adversary’s complaints against a decision, see ABE V. UNILORIN (SUPRA); ADEROUNMU V. OLOWU (SUPRA); LAGOS STATE V. SARHUNA (SUPRA). It follows that an appeal without a valid ground brings to question the jurisdiction of a Court to entertain it.

Now, I do not for a moment buy the argument that ground two, which is to the effect that the judgment of the Court is against the weight of evidence, supports the issue challenged by the Respondent; the issue in question being, whether the relief sought was sought at all.

I have carefully read through the two grounds of appeal as contained in the Appellant’s notice of appeal and I am inclined to agree with the Respondent’s contention that the issue raised in this regard does not relate to any of the grounds. The issue is thus: “Whether the reliefs granted by the lower Court were sought”? The said issue is alien to the grounds of appeal; in which case the Appellant needed a ground to justify the emergence of the said issue. The law is trite that issues formulated for determination by parties must derive from, or relate to a ground or grounds of appeal. It is not allowed for an issue to be formulated outside the valid grounds of appeal contained in a notice of appeal. See AWUSE VS. ODILI (2004) 8 NWLR (PT. 874) 494; EYIGEBE VS. IYAJI (2013) 11 NWLR (PT. 1365) 407; In HALILCO (NIG) LTD VS. EQUITY BANK OF (NIG) LTD (2013) 12 NWLR (PT. 1367) page 1. The Supreme Court held in MACFOY VS. UNITED AFRICAN CO. LTD. (1962) AC 152, that framing an issue for determination in an appeal outside the grounds of appeal is tantamount to putting something on nothing. It cannot stand. In an appeal, an issue for determination must be derived, framed or distilled from a valid ground of appeal or a combination of grounds of appeal. Any issue framed outside the grounds of appeal is incompetent and liable to be struck out.

In the light of the above cited authorities on the state of the law; there is no ground to support the submission of the Appellant that the lower Court granted a relief not sought; that being so, the submission in that regard should at best be discountenanced; I accordingly do so. Be that as it may, a juxtaposition of the relief sought, and the relief granted leaves no one in doubt as to the two being one side of the same coin. The relief sought by the Respondent at trial is:
“a declaration that the dismissal of the claimant’s appointment was in gross violation of his right to fair hearing”; while the relief granted by the trial Court is:
“…the dismissal of the claimant was unconstitutional, null and of no effect whatsoever”.

It is preposterous in the considered opinion of this Court to say the relief granted was not sought, because it is clear to every discerning eye that the two mean basically one and the same thing. The trial Court simply needed to give more punch to his finding, and so expressed his observation in such a way as to give strength to the illegality of the situation by highlighting the unconstitutionality of the proceedings. It does not have to say verbatim what the relief says in such a situation. I agree with learned counsel for the Respondent that the lower Court has the inherent power to recouch it to suit the interest of justice; in this case, it is saying one and the same thing. It is just a matter of semantics; see N.S.I.T.F V IYEN (2014) 9 NWLR part 1412 page 349.

It is also submitted for the Appellant that the lower Court’s declaration that the dismissal was unlawful and unconstitutional was made without the necessary pleadings and proof of the conditions of service. That it is a fundamental requirement that the suit be founded on the terms and conditions of service of the Respondent, before a declaratory relief can be granted. In short, the breach cannot exist in vacuum, because the conditions of service precede it; an employee challenging dismissal must first plead and prove the conditions of service.
First, learned counsel is right in this regard. I am fortified by the decision of the Supreme Court in AJI V CHAD BASIN DEV AUTHORITY (2016) ALL FWLR part 824 page 175.
Having said that, it is not in doubt that the Respondent was employed by the Appellant, Exhibit YAO1, the letter of appointment dated 3rd of January, 2012 attests to that; and this was indeed pleaded at paragraph one of the statement of facts, and admitted by the Appellant in paragraph two of the statement of defence.
That being so, the letter, having been pleaded, and admitted, means issues have been joined. It has to be given its true legal meaning and effect; see ADAMS V LSDPC (2000) 5 NWLR part 656 page 295. Furthermore, as rightly submitted for the Respondent, the content of Exhibit YOA1, particularly paragraph 6 clearly provided for the appointment and termination of the employment of the Respondent to be in accordance with the provisions of the Appellant’s conditions of service; these facts were also admitted by the Appellant. It means there is no dispute, as the parties are ad idem, at least on that.
Admission means a voluntary acknowledgment made by a party of the existence of the truth of facts which may be adverse to the claims or entrenched position of the appellant. An admission made on a pleading, as in this case, needs no further proof and a party admitting is estopped from denying the facts; See NIGERCHIN INDUSTRIES LTD V. OLADEHIN & ANOR (2006) 13 NWLR Pt. 998 Pg.536.
It is now a question of fact, this Court has a responsibility, in deciding whether the Appellant has indeed made an admission, what needs to be considered is the totality of pleadings of the Appellant. Paragraphs in the pleading should not be considered in isolation but should be read in the entire context of the pleading.
As a matter of fact, the Appellant went beyond admitting the conditions of services, and proceeded to plead a copy of the conditions of service, which was tendered and admitted as exhibit PYAO 10. That being so, the Appellant cannot pick and choose parts of exhibit PYAO 10. The Court has to rely on the totality of the document, warts and all; where a plaintiff leads evidence in support of defendant’s pleading, the evidence is admissible. That is the rule of pleadings and the trend of decided cases; SKETCH NEWSPAPERS V. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 AND BAMGBOYE AND ORS. V. OLANREWAJU (1991) 4 NWLR (PT. 184) 132, 155, SEE ALSO EGOR V OVAT SUPRA.

A careful scrutiny of the reliefs will reveal that the Respondent is contending that he was not accorded fair hearing at the disciplinary procedure conducted by the Appellant’s disciplinary committee that investigated and subsequently recommended his dismissal, and not on the violation of the Appellant’s conditions of service; and it is the consideration of this, and facts admitted at trial, as well as exhibits PAO1 and 10, that led the lower Court to the inexorable conclusion that the Respondent was denied fair hearing during the conduct of the disciplinary committee hearing set up by the Appellant.

Even by the Appellant’s own admission, the claimant stated:
“at the council chamber, I met my HOD, Dr. Alkali, Adegbe, Mr. Jude, Dr. Fatima and Deborah, but we were separately interacted with. All the witnesses who purportedly testified at the committee against me did so in my absence.”

DW1 in cross-examination stated:
“witnesses were called in the investigation. The witnesses did not testify in the presence of the claimant. None of the witnesses witnessed the action”

This evidence is vivid; it is what convinced the trial Court in part, to arrive at the conclusion that the Respondent was not accorded fair hearing. So, whichever way one looks at the case of the Respondent at trial he has laid the foundation, properly, to assist the Court arrive at the conclusion it did. First by establishing that claim, entitling him to the reliefs, then leading evidence on the pleadings and facts. The Respondent’s claims are rooted in paragraphs 9, 10 and 12 of the statement of facts, not denied by the Appellant; as well as the statement of defence and admissions during cross-examination.

It is for this reason that the trial Court impeccably found at page 157, that:
“the disciplinary proceedings and the punishment was …in violation of Section 7 of exhibit PYO10 the conditions of service.”

It is very important at this juncture to emphasize that fair hearing does not by any stretch of imagination merely depict giving an accused person the opportunity to defend himself. Learned counsel for the Appellant contends that Section 15 of (1) of the FUT Act and 7 (1) of exhibit PAO 10 are specific as to the manner of fair hearing in disciplinary proceedings, and that the requirement of fair hearing in the condition of service and the FUT Act is no more than allow the Respondent to appear before the disciplinary committee and be heard.
I beg to disagree with this contention; because it is not enough to say an accused has been given fair hearing merely because he was invited or had the opportunity of replying a query. It goes beyond that. It is to be expected that when a party such as in the instant case, has been effectively sidelined from his rightful position of being able to present its case/defence, such a party is at liberty to complain that he has been treated unfairly and that his constitutionally guaranteed right to fair hearing has been breached. He must be given due attention and accorded requisite relief. Due process and observance of rule of law, do not reckon with inequality or double standard. All parties before a Court deserve to be treated fairly, have their cases determined on the merits and justice be dispensed to them, without let or hindrance.
A Court in the course of determining the rights of parties, must always detach itself of sentiments and be dispassionate in its treatment of any matter before it. The resultant effect of non-compliance with or breach of right to fair hearing, particularly in the course of conduct of a hearing is the invalidation of such proceedings with the end result that the said proceedings will be rendered null and void. See AKOH V. ABUH (1988) 3 NWLR (PT. 85) 696. In the instant case, the proved fact, that the Respondent was unnecessarily and unduly shut out, by reason of the fact that witnesses were called in his absence, means he did not get to see them or hear them, much less cross-examine them, culminating in a gross breach of his right to fair hearing and thus rendering the decision reached by the committee null and void in absolute terms.
I will like to recognize that the allegation against the Respondent is quite serious both in terms of consequences and nature; it does not matter what offense one is accused of committing, the law requires he be given a fair hearing, because the presumption of innocence is the cornerstone of our adversarial system of criminal trial. The effect of denial of fair hearing is trite in law. In other words, once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at, becomes a nullity. See AKINFE V. THE STATE (1988) 3 NWLR (PT.85) 729 AT 753 AND BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290 AT 333.

It is for these reasons that I now resolve the sole issue for determination in favour of the Respondent, against the Appellant.

The appeal fails, and it is dismissed accordingly for lack of merit. Judgment of the trial National Industrial Court of Nigeria, Minna Division, delivered on the 7th of November, 2019 is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I had the advantage of reading in advance, the draft judgment of my learned brother – MOHAMMED MUSTAPHA, JCA.

I agree with his reasoning and conclusion as contained in the leading judgment that the Appellant’s appeal lacks merit and it is accordingly dismissed.

The judgment of the National Industrial Court of Nigeria, Minna Division, delivered on the 7th day of November, 2019 is hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: This appeal once more raises the issue of the denial of fair hearing against a person accused of committing an offence.

The indices of fair hearing whether in civil or criminal proceedings have been well captured in the cases of Ekpenetu Vs Ofegobi(2012) 15 NWLR p. 276,Ndukauba vs Kolowo (2005) 4 NWLR (pt. 915) 411, Njio kwuemeni vs Ochei (2004) 15 NWLR (pt. 895) 198. It was eminently stated therein that the party affected must be present all through the proceedings to hear all the evidence adduced against him, and to be afforded the opportunity of cross-examining or otherwise challenging the evidence led by the adversary.
In the instant case, evidence points to the fact that witnesses were taken by the committee set up to investigate him behind his back. He was absent from the proceedings and therefore not afforded the opportunity to test the truth of the evidence given against him by way of cross examination. In such a circumstance, the decision based on this procedure cannot be allowed to stand.
Understandably, any allegation based on sexual harassment has evoked sentimental reactions, all calling for the head of the culprit. The dignity of our children in institutions of higher learning and the way it has been debased of recent is an area of concern, but the rule of fair hearing being sacrosanct were denied the accused person, renders the entire proceedings and the decision based on same null and void. Such is the fate of the present suit.

In the event, I find the judgment of my learned brother Mustapha, JCA agreeable to me and I join him in dismissing this appeal.