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National Industrial Court

Dr. Daniel Chukwurah -VS- Nnamdi Azikiwe University & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.

 

DATE: OCTOBER 11, 2019                         SUIT NO:NICN/AWK/15/2016

 

BETWEEN:

Dr. Daniel C. Jr. Chukwurah                          –                       Claimant

 

AND

  1. Nnamdi Azikiwe University
  2. Professor Joseph E. Ahanehu

(Vice Chancellor, Nnamdi Azikiwe University)

  1. Dr. I.H. Isidienu

(Registrar, Nnamdi Azikiwe University)              –        Defendants

 

REPRESENTATION

P.A. Afuba with C.E. Odo, N.E. Nwodum, N.P. Awa, G.B. Obi,

N.J.U. Nwabunwane, J.N. Maduechesi and S.C. Afuba for the Claimant

P.I.N. Ikwueto, SAN with A.A. Emejue, R.A. Uzoechi, Anekwe and I. Okegbu, for the Defendants.

 

JUDGMENT

INTRODUCTION

  1. The Claimant filed this action  on 7th June, 2016 vide a complaint, statement of facts, lists of documents, statement on oath of claimant, list of witnesses, written statement on oath of claimant and motion on notice for an order of interlocutory injunction against the defendants/respondents.  The defendants responded by filing their memorandum of conditional appearance, statement of defence, list of witnesses, written deposition on oath of  Dr I.H. Isidienu (Registrar, Nnamdi Azikiwe University), list of documents and copies of documents.  By order of court granted on 8th June, 2017, the defendants were allowed to amend their statement of defence; and by another court order granted on 4th February, 2019, the 3rd defendant was substituted by Christian Chukwudi Okeke, Esquire.

 

  1. By the complaint, the claimant is praying for:
  2. a)A declaration that the decision of the defendants suspending the claimant from his duties as a staff of the 1st defendants, placing the claimant on half salary, forbidding the claimant from visiting Nnamdi Azikiwe University and forwarding the alleged case against the claimant to the Senior Staff Disciplinary Committee of the 1st Defendants as contained in the letter of suspension dated 4th May, 2016, issued by the 3rd defendant was reached in breach of the claimant’s constitutional rights to fair hearing, freedom of movement and freedom of association, violates both the Nnamdi Azikiwe University Act and Nnamdi Azikiwe University Senior Staff Conditions of Service, is ultra vires the powers of the defendants, is null and void and of no legal effect whatsoever.
  3. b)An order setting aside the decision of the defendants suspending the claimant from duty as a staff of the 1st defendant, placing the claimant on half salary, forbidding the claimant from visiting Nnamdi Azikiwe University and forwarding the alleged case against the claimant to the Senior Staff Disciplinary Committee of the 1st defendants as contained in the letter of suspension dated 4th May, 2016 and issued by the 3rd defendant on the directive of the 2nd
  4. c)An order directing the defendants to restore to the claimant all the rights, benefits, entitlements and privileges due to the claimant as a bona fide staff of the 1st
  5. d)An order of injunction restraining the defendants either by themselves or through their officers, servants, agents or privies from giving effect or continuing to give effect to the decision of the defendants suspending the claimant as a staff of the 1st defendant, placing the claimant on half salary, forbidding the claimant from visiting Nnamdi Azikiwe University and forwarding the alleged case against the claimant to the Senior Staff Disciplinary Committee of the 1st defendants as contained in the letter of suspension dated 4th May, 2016 and issued by the 3rd defendant on the directive of the 2nd
  6. e)An order of injunction restraining the defendants either directly by themselves or through the Senior Staff Disciplinary Committee of the 1st defendant or any other committee appointed by the defendants from investigating or continuing to investigate in any manner whatsoever, the matters/allegations leading to or relating to the suspension of the claimant as contained in the letter of suspension dated 4th May, 2016, issued by the 3rd defendant on the directive of the 2nd

 

  1. At the trial, the claimant testified on his own behalf as CW1.  His frontloaded documents were marked as Exhibits CW1/1 to CW1/11, while the defendants frontloaded documents were marked as Exhibits DW1 to DW10.  At the close of trial, the court by order granted on 27th May, 2019 extended time for the defendants to file their final written address.  The parties then filed and served their respective final written addresses.  The defendants’ was filed on 3rd June, 2019, while the claimant’s was filed on 24th June, 2019.  The defendants’ reply on points of law was filed on 10th July, 2019.

 

 

 

THE SUBMISSIONS OF THE DEFENDANTS

  1. To the defendants, it is common ground that the claimant is a staff of the 1st defendant and employed in the position of  Lecturer 1; that by letter dated 29th April, 2016 (Exhibit CW1/4 or Exhibit DW3) the 1st defendant issued the claimant with a query requesting the claimant to explain within 48 hours why the claimant should not be disciplined as provided in the Regulations and Conditions of Service of the 1st defendant for:
  2. a)Registering and pursuing M.Sc and Ph.D at the Kogi State University Anyigba on a full time basis;
  3. b)Failure to obtain any permission for undertaking full time M.Sc/Ph.D programme.

That the query issued to the claimant was pursuant to a directive by the Appointments and Promotions Committee (Academic Staff) of the 1st defendant; that there was no response nor did the claimant answer to the query dated 29th April, 2016.

 

  1. That by a suspension letter dated 4th May, 2016, the 1st defendant suspended the claimant for a period of three (3) months in the first instance while the case is forwarded to the Senior Staff Disciplinary Committee for thorough investigation and recommendation; that rather than allow that the infractions of the Nnamdi Azikiwe University Staff Conditions of Staff leveled against him, which were forwarded to the Senior Staff Disciplinary Committee for thorough investigation to be investigated, the claimant instituted this suit.  That in the instant suit the claimant among other reliefs seeks for an order of injunction restraining the Senior Staff Disciplinary Committee from investigating or continuing to investigate the “charges” made against the claimant in the letter of suspension aforesaid.

 

  1. The defendants then submitted two issues for determination, namely:
  2. a)Whether this suit is not premature
  3. b)Whether the claimant’s suspension violated claimant’s constitutional rights to fair hearing, freedom of movement and freedom of association; and violates both the Nnamdi Azikiwe University Act and Nnamdi Azikiwe University Senior Staff Conditions of Service.

 

  1. The defendants opted to address the two issues for determination together.  It is submitted by the defendants that by instituting the instant suit without allowing for the investigation by the Senior Staff Disciplinary Committee renders the suit premature; that there is no doubt that by the provisions of section 17(3) of the Nnamdi Azikiwe University Act, “the Vice Chancellor may in case of misconduct by a member of staff which in the opinion of the Vice Chancellor is prejudicial to the interests of the University, suspend such member and any such suspension shall forthwith be reported to the Council”.  That from a dispassionate reading of the related provisions of section 17(2) of the same Nnamdi Azikiwe University Act, it is the report of the Investigating Committee which the Council of the University will take into account in determining whether a suspended staff should be removed from office or employment; that unfortunately, in the instant case, by instituting the instant suit, the claimant prevented the 1st defendant from going through its internal dispute resolution mechanism by hastily filing this suit; that it is thus submitted that this suit is premature.

 

  1. The defendants went on to make the point they considered necessary that if the claimant has not jumped the gun by filing this suit, the staff disciplinary committee may, assuming there is evidence in support, found in his favour concerning the “charges” leveled against him in the letter of suspension; that assuming such a situation arose, the claimant, if given a clean bill would have been exonerated and the suspension would have been rescinded and no harm/injury would have been done to the claimant; citing University of Calabar V. Esiogu (1997) 4 NWLR (Pt. 502) 719 at 723.   Also, that the disciplinary procedure gives the initiator of the discipline  a period to make up his mind as to what should be done to the person facing the discipline; that although, in most cases, suspension results in a disciplinary action, it is not invariably so.  That there are instances when the authority decides not to continue with the matter; that this could be because the investigations did not result in any disciplinary conduct (sic).

 

  1. The defendants continued by reiterating that it is common ground that the claimant in the instant suit without allowing the staff disciplinary committee to administratively look into the matter hastily instituted the instant suit; that the question the court may ask is: would the claimant have legitimately instituted this action if the staff disciplinary committee had investigated the matter and found that no disciplinary action would be taken against the claimant?  That is there a justifiable cause of action merely because the 1st defendant suspended the claimant and referred the matter for investigation by staff disciplinary committee? That in order to appropriately answer the posers above, it is pertinent to point out that an employee has the right to disciple an erring employee and suspension is one of such disciplinary measures; that the employer has the right to suspend the employee when necessary.  Reliance was placed on Shell Petroleum Development Company (Nig) Ltd V. Omu (1998) 9 NWLR (Pt. 567) 672 and Miriam V. University of Ilorin Teaching Hospital Management Board (2013) 35 NLLR (Pt. 103) 40. That suspension when necessary cannot amount to the breach of the servant’s or employee’s right.  That it is an established principle that suspension cannot amount to right to fair hearing, referring to Longe V. First Bank of Nigeria Plc (2010) 6 NWLR (Pt.1181) 1; Amadiume V. Ibok (2006) 6 NWLR (Pt. 975) 158 at 181 para G.

 

  1. The defendants proceeded that at common law, the power/right of an employer to suspend an employee is usually regarded as a step in the interest of the employer’s business, citing Longe V. First Bank of Nigeria Plc (supra); that the right to suspend an employee is available to an employer in order to effect proper investigation of allegation or during the process of a disciplinary action.   Reference was made to Koomlong I. Miaphen V. University of Jos Consultancy Limited (2013) LPELR – 21904 (CA) at page 30; B.V. Odeanmi V. Federal Housing Authority (2006) LPELR -11599 (CA) page 20; (2007) 3 FWLR (Pt. 376) 3980 and Akinyanju V. Unilorin & ors (2004) LPELR -6054 (CA).  In the  light of the above settled legal position, the defendants submitted that merely suspending the claimant to enable the matter be investigated by the Staff Disciplinary Committee cannot give rise to an enforceable claim.

 

  1. It is further submitted by the defendants that where an employee, such as the claimant, is suspended pending an investigation by a disciplinary committee, the cause of action would not accrue before the conclusion of the investigation; that it is only where the investigation is concluded and the employer decides to continue with the matter that the affected employee can in law have an enforceable cause of acting.   Reliance was placed on Bello V. A.G. Oyo State (1986) 5 NWLR (Pt. 826) – no page supplied by defendants.  Egb (sic) V. Adefarasin (1987) 1 SC (reprint) 1 at 14-15; Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 257 at 267 and Mulima V. Usman (2014) 16 NWLR (Pt 1432) 160 at 198 para. G-H.  The defendants went on that in the circumstances of this case, by instituting this suit without waiting for the investigation by the Staff Disciplinary Committee, the claimant has no cognizable cause of action; that the suit is patently premature and this defect robs the court of the jurisdiction to entertain same.

 

  1. In addition, the defendants submitted that aside for (sic) the inconsistency of this suit arising from the inherent incompleteness of the cause of action, the court is invited to uphold that the claimant’s suit is utterly frivolous and without any merit; that the whole essence of this suit is to challenge the letter of suspension date 4th May, 2016.  That the 1st ground of the suspension letter which relates to the allegation that the claimant contravened S. 7(ii) (c) of the Senior Staff Conditions of Service by registering and pursuing full time studies as a student in M.Sc/Ph.D degrees in Public Administration whilst he was a full time teaching staff (lecturer) in 1st defendant; that Exhibit D9 (sic) is a letter written by the 1st defendant  to the Dean, School of Post Graduate Studies, Kogi State University Anyigba requesting for information on the claimant’s academic programme at the Kogi State University. That in response to the 1st defendant’s letter/request, the Dean, School of Post Graduate Studies, Kogi State University Anyigba wrote to the defendants on 20th April, 2016 and among other things confirming that the claimant was offered admission to study for an M.Sc/Ph.D degree in Public Administration in 2008/2009 academic session; that  he registered as a full time student; that the duration for the programme is six years… that his first registration was in April 2009, his Ph.D external defence held on 7th August, 2014; that claimant obtained an M.Sc in September, 2011 and Ph.D in 2014.

 

  1. The defendants went on to invite the court to read the letter from the Dean, School of Post Graduate Studies, Kogi State University Anyigba dated 20th April, 2016 (above) together with the claimant’s letter dated 25th May, 2010 (Exhibit CW6) – (sic); that in his letter dated 25th May, 2010 the claimant among other things claimed “the admission is on part time and it is a weekend programme which takes place on Saturdays from 10.00am – 4.00pm whenever appointment is approved for me by my supervisor.” It is submitted by defendants that if indeed the claimant obtained admission to pursue M.Sc/Ph.D programme and registered as a full time student at the Kogi State University Anyigba, then claimant’s letter of notification and request for permission/approval dated 25th May, 2010 written to the defendants tells a big lie.  That indeed, if the court examines the purported letter of offer of provisional admission on which the claimant relies for his fathom (sic) claim of having pursured a part time programme at the Kogi State University Anyigba (Exhibit CW15) – (sic), the court will readily see that the offer for provisional admission is for “Ph.D in Public Administration.” That the question, then, is where is the letter of offer of admission for the M.Sc programme which was pursued along with the Ph.D degree; that claimant has deliberately shielded the offer of admission for the M.Sc degree from this court.  That it is common sense that for claimant to have been “offered admission to pursue M.Sc/Ph.D programme in Public Administration at Kogi State University Anyigba” as alleged in his notification letter to the defendant (Exhibit CW1 6) (sic), the claimant must have been given a letter of the offer for M.Sc/Ph.D programme; that indeed in the said Exhibit CW1 6 (sic), he claimed to have attached the letter of admission; that the only letter of offer of admission from Kogi State University Anyigba, School of Post Graduate Studies sent to the claimant is Exhibit CW 5 (sic);  that Exhibit CW5 (sic) on which the claimant relies made no reference to MSC (sic) programme.

 

  1. In addition, the defendants submitted that if the claimant has produced the offer of admission received by him from the School of Post Graduate Studies Kogi State University Anyigba for “M.Sc/Ph.D programme”, the court would have seen that the programme was on full time basis as confirmed by the School of Post Graduate Studies, Kogi State University Anyigba in its letter dated 20th April, 2016; that the claimant having refused and neglected to produce the letter of admission for M.Sc/Ph.D Programme, the  court may rightfully invoke the presumption under section 169 (d) Evidence Act, 2011 and hold that if the claimant had produced the said letter of admission, it would be against him.  That unfortunately, when the claimant was requested by the defendants to explain on the directive of the defendants’ Appointments and Promotions Committee (Academic Staff) vide the query dated 29th April, 2016 (Exhibit CW1 4) (sic), he embarked on skirmishes aimed at preventing him to provide the expected response to the query; that the query requested the claimant to provide explanation within 48 hours (2 days) why he should not be visited with the punishment/disciplinary action provided in the 1st defendant’s Regulations and Conditions of Service.

 

  1. The defendants continued by submitting that as a citadel of learning, the 1st defendant has a paramount duty to instill and ensure the maintenance of discipline and conformity to its Regulations and Conditions of Service by its students and staff members including lecturers/professors.  The Court is urged to uphold that the 1st defendant as an employer was perfectly entitled to issue the claimant with a query as per Exhibit CW1 4 (sic); that perhaps if the claimant had responded to the query and provided the requisite explanation if there was, the instant suit may never been (sic) filed; that unfortunately rather than answer the query, the claimant started a tale of having fallen sick.

 

  1.  That Exhibit DW 3 is the evidence of the service of the query on the claimant; that Exhibit DW3 confirm (sic) that the letter of query was dispatched to the claimant on 29th April, 2016; that significantly in his letter dated 13th May, 2016 written to Hon. Minister of Education, protesting against his suspension, the claimant alleged “on Friday 29th April, 2016, I was down in ill health and so went to the hospital for medical attention.  The Medical Doctor who treated me gave me seven (7) days sick leave and the medical paper for the seven days off duty which was authenticated by the University Medical Doctor was served on the University through my Head of Department”.  That evidence before the court confirms that the claimant himself personally submitted the purported sick leave certificate when he came to the University on 29th April, 2016; that the summary of the above is that the 1st defendant issued the claimant a query to which the claimant refused and neglected to provide any explanation; that even before the court, the claimant has continued to refuse and neglect to provide any explanation to the issues raised in the query as well as the suspension letter dated 29th April, 2016 and 4th May, 2016 respectively.

 

  1. The defendants regurgitated their argument that Exhibit CW1 5 (sic) – offer of provisional admission – on which the claimant relies is totally against him; that Exhibit CW1 5 (sic) only mentions offer of provisional admission to read Ph.D Public Admin (sic) whereas the infraction of the University Regulations and Staff Conditions of Service made against the Claimant is that he registered for and pursued M.Sc/Ph.D programmes on full time with (sic) approval whilst he was a full time Lecturer of the defendant (sic).  The defendants urged the Court to uphold that the 1st defendant rightly suspended the claimant and referred the matter to investigation to the appropriate Senior Staff Disciplinary Committee for thorough investigation and recommendations; that it was the claimant by this hasty suit that prevented the carrying out of the investigations and recommendations by the Senior Staff Disciplinary Committee; and for the reasons given above, the Court is urged to dismiss this suit as premature and without merit.

 

THE SUMISSIONS OF THE CLAIMANT

  1. The claimant submitted four issues for determination, namely:

1)      Whether the claimant’s action is premature and incompetent

2)      Whether the suspension of the claimant by the defendants was done in utter violation of the claimant’s constitutional right to fair hearing

3)      Whether the suspension of the claimant by the defendants was premised on false and wrongful grounds

4)      Whether the claimant is entitled to the reliefs sought in this suit.

 

  1. For issue (1), the claimant argued that the defendants in paragraphs 4.1 to 4.8 of their final written address dated and filed on 3rd June, 2019 contended that the claimant’s action is premature and does not disclose reasonable cause of action and this robs the Court of jurisdiction to entertain the suit; that the defendants’ reason for  the above contention is that the claimant ought to have waited for the 1st defendant’s Senior Staff Disciplinary Committee to complete their investigation of the allegation of misconduct leveled against the claimant before the institution of this action.  That from the defendants’ contention under paragraphs 4.1 to 4.8 of their final written address highlighted above, it appears clearly that the defendants do not appreciate the nature of the claimant’s case, or rather, the defendants pretend not to understand the claimant’s grievances against them in the suit; that the claimant’s case against the defendants in the main is that the suspension via Exhibit CW1/3 was done in violation of his Constitutional right to fair hearing enshrined in section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), his right to freedom of movement enshrined under section 41 of the Constitution, and further in violation of the Nnamdi Azikiwe University Act.  See paragraphs 10, 11, 12, 13, 14, 15 and 16 of the claimant’s statement of facts dated 6th June, 2016 and filed on 7th June, 2016.  That it is not the case of the claimant that the defendants do not have the power to discipline him via suspension; that rather, his case is that whatever disciplinary measure to be taken by the defendants against him must be in accordance with the laid down provisions of the law.

 

  1. That by Exhibit CW1/3 dated 4th May, 2016 but served on the claimant on 9th May, 2016, the defendants suspended the claimant from work, placed him on half salary, and restrained him from entering the 1st defendant’s premises unless expressly permitted by the defendants.  That the act of placing the claimant on half salary is a punitive act which affects the claimant’s rights under the contract of service reached by the claimant and the 1st defendant; that the act of restraining the claimant from entering the 1st defendant’s premises is also a punitive act which affects the claimant’s right to freedom of movement.  That it is the case of the claimant that Exhibits (sic) CW1/3 and Exhibit CW1/4 were served on him on the same day and at the same time; that the act of serving Exhibits CW1/3 and CW1/4 contemporaneously simply shows that the claimant was not afforded fair hearing by the defendants – an act which affects the claimant’s right to fair hearing.  That it is therefore beyond argument that the claimant’s statement of facts disclosed reasonable cause of action against the defendants which gave him the right of action exercised vide this suit.  See Adekoya V. Federal Housing Authority (2008) II NWLR (pt.1099) 439 at 551.

 

  1. To the claimant, it has been held in several judicial authorities that suspension is a punitive act and also a complete act in itself; that any person, therefore, aggrieved by his suspension has the right of action to challenge his suspension in court and to seek remedy against the authority that suspended him.  See INEC V. Okoronkwo (2009) All FWLR (pt. 488) 227 at 242 paras E-F.  That it is also settled that where a person has sufficient interest in a matter and the person’s right regarding the matter are violated or in danger of being violated, the person is deemed to be clothed with the locus or capacity to maintain an action against the other persons or authorities he perceived to be violating his rights; citing NBA V. Kehinde (2017) II NWLR (pt. 1576) 225 at 242.  That in the instant case, it is undisputed that the claimant has sufficient interest in the contract of employment he entered into with the 1st defendant; that as disclosed in his pleading, his rights or interests under the contract were not only in danger of being violated but were actually violated by the defendants thus, the claimant was clothed with the requisite capacity to institute this action.

 

  1. The claimant went on that the submission of the defendants that the claimant should fold his arms and wait for the verdict of the 1st defendant’s Senior Staff Disciplinary Committee is tantamount to telling the defendants to be judges in their own case; that the Senior Staff Disciplinary Committee is part of the defendants.  Thus, the claimant cannot reasonably be expected to wait for the committee to conclude their investigation before instituting this act whereas it has occurred to the claimant that the entire processes leading to his suspension via Exhibit CW1/3 were unlawful.  That the first of the twin pillars of natural justice is that one should not be a judge in his own case which is expressed in the Latin maxim nemo judex in causa sua.  That failure to observe this natural justice rule vitiates any proceedings or process affected by same.  See Akinwale V. Nigerian Army (2001) 16 NWLR (pt. 738) 109 at 120 pars. (sic) G.  In the light of the foregoing, claimant submitted that his suit was not premature, suspension being a complete act in itself; that the suit therefore disclosed a reasonable cause of action against the defendants and thus competent; and the claimant urged the court to resolve issue (1), in his favour.

 

  1. On issue (2), as to whether the suspension of the claimant  by the defendants was done in utter violation of the claimant’s Constitutional right to fair hearing, the claimant submitted that it is settled in a long line of judicial authorities that the act of suspending an employee and placing him on half salary is a punitive act;  that natural justice demands therefore that before such punitive measure of suspension is meted against a person, the person must be given the opportunity to be heard;  that this opportunity of being heard prior to suspension is usually offered to the employee via a query conveying the alleged misconduct that leads to the suspension.  That the employee in that circumstance is given ample time to respond to the query.  See United Bank for Africa Plc V. Oranuba (2014) 2 NWLR (pt. 1390) 1 at 22 paras G-H.  that in the present case, the claimant averred that the letter of suspension (Exhibit CW1/3) and the letter of query (Exhibit CW1/4) were contemporaneously served on him on 9th May, 2016; that this by simple reasoning, shows that the claimant was not given the opportunity to respond to the allegation of misconduct contained in Exhibit CW1/4 before he was suspended via Exhibit CW1/3; that  the allegation against the claimant in Exhibit CW1/4 formed the ground(s) for his suspension via Exhibit CW1/3.  In proof of the fact that he was not offered fair hearing before his suspension, the claimant relied on paragraphs 11, 12 and 13 (e) (f) and (g) of his statement on oath sworn to on 7th June, 2016 and adopted on 1st November, 2018; and on paragraphs 11, 12, 15 and 16 of claimant’s additional statement on oath also adopted on 1st November, 2018.

 

  1. That the defendants in their amended statement of defence denied that Exhibits CW1/3 and CW1/4 were both served on the claimant on 9th May, 2016 and rather averred that Exhibit CW1/4 was served on the defendant on 26th April, 2016.   That the claimant in further proof that Exhibit CW1/4 could not have been served on him on 29th April, 2016 tendered Exhibit CW1/9 – a sick leave certificate which clearly shows that he was sick at the ESUT (sic) Teaching Hospital Parklane, Enugu on 29th April, 2016 and could not have been served with Exhibit CW1/4 at 1st defendant premises on 29th April, 2016.  That claimant’s evidence that Exhibits CW1/3 and CW1/4 were contemporaneously served on him on 9-5-19 was not scratched under cross examination by the defendant’s (sic) counsel, that rather the claimant maintained firmly that the documents were served on him on 9-5-19.

 

  1. The claimant went on that the defendants, in a desperate bid to defeat the case of the claimant withheld the dispatch look (sic) of the Department of Public Administration where the claimant endorsed that he received Exhibits CW1/3 and CW1/4 from the Head of Department Dr (Mrs) F.C. Agbodike on 9th May, 2016; that rather, the defendants tendered a trumped up page of a purported dispatch look (sic)  admitted in evidence as Exhibit DW 6 and a trumped-up Domestic Airway Bill (Exhibit DW7) purporting to show that Exhibit CW1/3 was received by the claimant on 4th May, 2016.  That a look at Exhibit DW 6 clearly shows that the claimant did not in anywhere endorse the receipt of the letter of query (Exhibit CW1/4) on 29-4-2016; that the signature on the Exhibit DW6 purporting to receive the letter of query on 29-4-16 (sic) and the letter of suspension on 4-5-16 (sic) is that of F.C. Agbodike.  That the said F,C, Agbodike is HOD of the Department of Public Administration whom the claimant had testified that she colluded with the 2nd defendant against the claimant; that there is also nothing in Exhibit DW7 to show that the claimant received Exhibit CW1/3 on 4-5-16 (sic).  That just like in Exhibit DW6, the claimant did not in anywhere endorse his signature on Exhibit DW7; that the signature endorsed on Exhibit DW7 is that of the sender which of course is not that of the claimant.   It is submitted that the practice which is in accord with common reason is that where a person receives a document from another person, the receiver endorses his signature on the dispatch book of sender or on the sender’s own copy of the document as evidence that the document was indeed received by the receiver.  Claimant therefore urged the Court to discountenance Exhibits DW6 and DW7.

 

  1. The claimant continued that in paragraph 4.17 of the defendants’ final written address, the defendants mischievously stated thus:

“Exhibit DW3 is the evidence of the service of the query on the claimant.  Exhibit DW3 confirm (sic) that the letter of query was dispatched on the claimant on 29.4.2016.

That Exhibit DW3 is the letter of query itself which the claimant tendered as Exhibit CW1/4; that Exhibit DW3 therefore cannot be the evidence of its service on the claimant as there is nothing endorsed on Exhibit DW3 to show when it was served on the claimant.

 

  1. That in paragraphs 4.18 and 4.19 of their final written address, the defendants also mischievously submitted that evidence before the Court confirms that the claimant himself personally submitted sick leave certificate to the 1st defendant on 29th April, 2016; that there is no such evidence before the Court; that the evidence before this Court is that the claimant was sick in a hospital at Enugu on 29th April, 2016 and submitted a sick leave certificate to the 1st defendant through one Nonso Sunday Okoye.  See the extract of evidence of claimant’s evidence under cross examination on 01-11-2018.   That on the same question of when Exhibits CW1/3 and CW1/4 were served on him, claimant further referred the Court to the evidence of DW1, Mr. C.C. Okeke under cross examination on 25-03-2019.  That the purported dispatch book tendered by the defendants is either Exhibit DW6 or Exhibit DW7; that claimant had submitted earlier that there is nothing in Exhibits DW6 and DW7 to show that the claimant was served with Exhibit CW1/4 on 29th April, 2016; that in other words, the claimant’s cogent evidence that Exhibits CW1/3 and CW1/4 were contemporaneously served on him on 9-5-16 (sic) has not in any way been controverted by the defendants by cross examination or any other rebuttal evidence, documentary or otherwise.  That it is settled that where a piece of evidence adduced by a party is not controverted or contradicted by the opponent, the Court has a duty to accept the evidence in proof of the fact it is meant to prove.  See Magaji V. Nigerian Army (supra).  The claimant therefore urged the Court to accept the evidence that the claimant was served with Exhibits CW1/3 and CW1/4 at same time on 9-05-2016.

 

  1. The claimant then posed the question that having demonstrated that the claimant was not offered fair hearing by the defendants while suspending him via Exhibit CW1/3, what is the effect of the denial of such fair hearing? To claimant, it is settled in a plethora of judicial authorities that an administrative body acting judicially or quasi-judicially in the determination of a decision that is likely to affect the rights of a person is bound to strictly observe the principle of fair hearing enshrined under s. 36 of the Constitution.  Reliance was placed on Federal Polytechnic, Ede V. Oyebanji (2012) LPELR-19695 (sic); Gyang V. COP, Lagos State (2014) 3 NWLR (Pt. 1395) 547 at 558; Assams V. Ararume (2016) 1 NWLR (Pt. 1493) 368 at 388-389 H-B; Akinwale V. Nigerian Army (supra); Akaniyene & ors V. Etim (2013) All FWLR (Pt. 709) 1167 at 1184 para B; National Union of Electricity Employees V. Bureau of Public Enterprises (2010) 7 NWLR (Pt. 1194) 538 at 570 paras B-C.  That any statute or regulation which provides for the punishment of any employee by way of suspension, interdiction, dismissal or any other punishment without hearing from the employee prior to the imposition of the punishment is inconsistent with section 36 of the Constitution and void to the extent of the inconsistency.  See Akaniyene & ors V. Etim (supra) at page 1183.   In the light of the foregoing, the claimant urged the Court to hold that the suspension of the claimant via Exhibit CW1/3 was done in violation of the claimant’s Constitutional right to fair hearing.

 

  1. Regarding issue (3), whether the suspension of the claimant by the defendants was premised on false and wrongful ground, claimant submitted that assuming but without conceding that the claimant was not denied fair hearing, the suspension of the claimant would still remain unlawful and bound to be set aside; that by virtue of Section 17 (3) of the Nnamdi Azikiwe University Act Cap. N139 LFN, 2004, the claimant can only be suspended by the defendants on ground of misconduct; that the ground for suspension must be a valid ground not an imaginary or false ground of misconduct.  That suspension is a complete act which affects the rights of a person; that suspension must therefore be premised on lawful and valid grounds; that suspension is bound to be set aside where it is predicated on false or trumped-up grounds.

 

  1. To the claimant, Exhibit CW1/3 shows that he was suspended from duty on two purported grounds, to wit: (a) That the claimant embarked on full time MSC (sic) and Ph.D programmes at Kogi State University; (b) That the claimant refused to release the results of five CEP courses taught by the claimant.  That it is clearly shown from the documentary evidence before the Court that the claimant did not commit any of the two misconducts upon which the defendants based the suspension of the claimant.  That the claimant testified in paragraphs18, 19, 20, 21, 22, 23 and 24 of his additional statement on oath sworn to on 28th June, 2017  and adopted as his evidence on 1st November, 2018 to the effect that he was offered admission by the Kogi State University, Anyigba in 2008 for MSC (sic) /Ph.D programmes as a part time student which he ran concurrently and that he was permitted to run the two post graduate programmes concurrently because he had earlier obtained the Master of Public Administration (MPA)  which entitles him to run his MSc and Ph.D programmes concurrently.  That this piece of evidence adduced by the claimant was not controverted by the defendants under cross examination.  That in further proof that his admission to run MSc/PhD programmes at Kogi State University was on part time basis the claimant tendered Exhibits CW1/5 and CW1/10; that Exhibit CW1/10 which is a letter from the Registrar of Kogi State Universit (sic) to the Registrar of the 1st defendant, shows clearly that the claimant was admitted into the MSc and PhD programmes of Kogi State University in 2008 as a part time student.  That DW1 under cross examination on 25/03/2019 admitted that the Registrar of a University is the chief custodian of official record of the university – both administrative records and academic records; that the DW1’s piece evidence above shows beyond doubt that exhibit CW1/10 emanated from best and proper custody; that the Registrar is in the best position to give information as to the nature of admission offered to any student in the university.

 

  1. That the defendants had contended under paragraph  4.13 of their final written address that Exhibit CW1/5 only bears PhD and therefore the claimant had deliberately hid information as to the nature of MSc admission offered to him in 2008; that the defendants’ contention is misconceived.  That the claimant vividly testified that he was offered admission into MSc and PhD programmes jointly, hence that he was given one admission letter – Exhibit CW1/5; that it is immaterial that CW1/5 bears only PhD; that what is material is that the letter clearly states “/part time” as the printing of full time is clearly cancelled thus: “full time/part time”.  That if however, there is any doubt as to the nature of admission offered to the claimant into MSc programme of Kogi State University, Exhibit CW1/10 has cleared the doubt; that it is also important to note that the Registrar of Kogi State University vide Exhibit CW1/10 clearly stated that Exhibit CW1/10 supersedes the Kogi State University’s earlier letter dated 20th April, 2016 which was issued in error.

 

  1. The claimant further referred to the second purported ground for his suspension that he refused to release 5 CEP courses he taught.  That it is crucial to point out that the issue of not releasing CEP courses stated in Exhibit CW1/3 was not even mentioned in Exhibit CW1/4 (letter of query); that this shows that the claimant was not given any notice whatsoever as to the alleged misconduct before his suspension vide exhibit CW1/3; that this further shows that the second ground for the suspension is an after-thought.  That despite the manner the second ground was fabricated, the claimant still testified cogently that he did not withhold any CEP course or any other course whatsoever.  See claimant’s cross examination on 01-11-2008 on this.  That the claimant from the foregoing evidence clearly and cogently rebutted the allegation of refusing to release any CEP courses.

 

  1. The claimant had testified in chief that he was suspended by the defendants out of malice as a result of the evidence he gave against the 2nd defendant in suit No. NICN/EN/760/2014: Nwakoby V. Nnamdi Azikiwe University & ors; that the evidence adduced by the claimant to the effect that he was suspended on false/trumped-up grounds corroborates his evidence that he was suspended out of malice nursed against him by the 2nd defendant.  That in the light of the evidence before this Court, it is submitted that the suspension of the claimant was premised on false/trumped-up grounds; that this in turn contravenes the provisions of the Nnamdi Azikiwe University Act as well as the Nnamdi Azikiwe University Senior Staff Conditions of Service which provide to the effect that an employee can only be suspended on valid ground(s).  The claimant urged the Court to resolve this issue against the defendants.

 

  1. Issue (4) relates to whether the claimant is entitled to the reliefs sought in this suit.  To the claimant, the reliefs claimed in this suit have been set out under paragraph 1.01 of his final written address; that it is an integral part of our jurisprudence that where there is a right there must be a remedy for any infringement of the right; that this is expressed in the Latin Maxim: ubi jus ibi remedium.  Reference is made to Assams V. Ararume (supra) and Aba V. Monday (2015)14 NWLR (pt.1480) 569 at 595 para H.  That the claimant has established in this case that his suspension via Exhibit CW1/3 was done in utter violation of his Constitutional right to fair hearing and also in violation of the provisions of Nnamdi Azikiwe University Act; that the claimant in the main, prays this Court in this suit to make a declaration nullifying his suspension, an order setting aside the suspension and an order restoring all the claimant’s rights/entitlements under his contract of employment with the 1st defendant.  It is therefore submitted that the claimant is entitled to all the reliefs claimed against the defendants in this suit; and the Court is urged to resolve this 4th issue in favour of the claimant.

 

  1. In conclusion and on the premises of the foregoing, the claimant prays the Court to enter judgment for him and grant the reliefs claimed by the claimant for the following reasons:
  2. a)The suspension of the claimant via Exhibit CW1/3 was done in violation of the claimant’s right to fair hearing.
  3. b)The suspension of the claimant was done out of malice and premised on false/trumped-up grounds, and in violation of Nnamdi Azikiwe University Act as well as Nnamdi Azikiwe University Senior Staff Conditions of Service.
  4. c)The claimant proved his case against the defendants and is entitled to all the reliefs claimed in the suit.

 

THE DEFENDANT’S REPLY ON POINT OF LAW

  1. In the main, the defendants’ reply on point of law on service of Exhibits CW1/3 and CW1/4, and proof of same by Exhibit DW6; sick leave certificate; and power of employer to discipline or dismiss an employee for misconduct under the Nnamdi Azikiwe University Act, were merely a rehash of the defendants’ arguments in the final written address.  I shall accordingly highlight only their arguments on Exhibit CW1/5.  In paragraph 4.17 at page 21 of his final written address, the claimant referred to his evidence that: “he was offered admission into MSc and PhD programmes jointly hence he was given one admission letter – Exhibit CW1/5.    It is immaterial that CW1/5 bears only PhD.”  To this, the defendants submitted that the claimant’s contention is akin to saying that oral evidence is superior to documentary evidence; that the correct legal position is that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral evidence.  Reference was made to Kimdey & ors V. Milltary Government, Gongola State (1988) 2 NWLR (pt 77) 445 at 473, para A-B.

 

COURT’S DECISION

  1. I have carefully considered all the processes filed and the submissions of the parties.  Before considering the merit of the case, I need to highlight one or two preliminary points.  Aside a couple of often repetitive submissions of the defendants in their final written address, I also observed that reference to the exhibits tendered by the claimant and marked by the court was not correctly captured in most cases by defendants.  Advocacy is built on simple syntax, not convoluted narratives.  Claimant’s exhibits were marked as Exhibits CW1/1 to CW1/11 while defendants’ are marked Exhibits DW1 to DW10.  By Coker V. Adetayo & ors (1992) LPELR -15369 (CA), briefs, like pleadings and every other document prepared for filing in Court are serious, and I may add, solemn documents.  They require great industry, great concentration and great care and attention in their preparation, vetting and proof-reading before they are filed in Court.  Learned counsel should always regard themselves as officers of the Court, which is in the hallowed temple of justice.  Counsel are ministers in the holy temple of justice and their conduct should always be above board.  Counsel should always endevour to assist the Court instead of misleading it.  See also Agoro V. Aromolaran & anor (2011) LPELR- 8906 (CA).

 

  1. A reply on points of law is meant to be just what it is, a reply on point of law.  It should be limited to answering only new points arising from the opposing brief.  It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address.  It is not a forum to engage in arguments at large.  Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr. Augustine N. Mozie & ors V. Chike Mbamalu (2006) 12 SCM (pt.1) 306; (2006) 27 NSCQR 425; Basinco Motors Limited V. Woermann Line & anor (2009) 13 NWLR (pt 1157) 149; (2009) 8 SCM 103; Ecobank (Nig.) Ltd V. Anchorage Leisures Ltd & ors. (2016) LPELR – 40220 (CA); UBA Plc V. Ubokolo (2009) LPELR -8923 (CA); Musaconi Ltd V. Aspinall (2013) LPELR -20745 (SC); Ojo V. Okitipupa Oil Palm Plc (2001) 9 NWLR (pt.719) 679 at 693, Ogboru V. Ibori (2005) 13 NWLR (pt. 942) 319 and Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (pt 929) 202.  The effect of noncompliance is that the Court will discountenance such a reply brief.  See Onuaguluchi V. Ndu (2000) 11 NWLR (pt. 590) 204; ACB Ltd V.Apugo (1995) 6 NWLR (pt. 399) 65 and Arulogun & ors V. Aboloyinjo & anor (2018) LPELR-44076 (CA).  Accordingly, save for what is highlighted earlier as reply on points of law, all others are hereby discountenanced for the purposes of this judgment.

 

  1. Having considered the processes filed and the submissions of counsel, the key issue at hand is that the claimant is challenging his suspension by the defendants; that the procedure/process adopted in suspending him is wrong and so he prays amongst other things that the suspension be nullified.  The defendants in response to the claimant’s case raised what approximates to an objection to the suit itself when they argued that the claimant hurriedly instituted this suit without fully exhausting the internal dispute resolution mechanism set in motion by the claimant amongst other grounds.  The reaction of the claimant to this objection is that the defendants, it appears, do not appreciate the nature of the claimant’s case or rather, the defendants pretend not to understand the claimant’s grievances against them in the suit; that the claimant’s case against the defendants in the main is that his suspension via Exhibit CW1/3 was done in violation of his Constitutional  right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), his right to freedom of movement enshrined under Section 41 of the Constitution, and further in violation of the Nnamdi Azikiwe University Act.  In Dr (Mrs) Mojisola Olubunmi Nkiko V. Federal University of Agriculture Abeokuta, unreported Suit No. NICN/LA/385/2013 the ruling of which was delivered on 2nd February, 2015, the issue before the Court was whether there is an obligation on the part of the claimant to exhaust domestic remedy before coming to this Court.  In raising this issue, the defendant cited Rule 5.12.1 of the University of Agriculture Abeokuta Senior Staff Rules and Regulations as the provision laying down the domestic remedy that the claimant is expected to exhaust before coming to this Court.  The said rule provides as follows:

“without prejudice to the procedure for disciplinary action, any aggrieved member of staff who is disciplined or punished under the appropriate regulations shall have the right of appeal through the normal channel to council.  The ruling of council on such appeal shall be final.”

This Court found that this rule makes provision for domestic remedy which the claimant must exhaust before he can come to this Court, relying on a number of authorities cited by the defendant therein including the additional concurring judgment of His Lordship Nweze, JCA (as he then was, now JSC) in Gbenga Bodunde & anor V. Staff Cooperative Investment & Credit Society Ltd OAUTH Complex & ors (2013) 12 NWLR (pt. 1367) 197.  The point here is that the defendant raising the argument of domestic remedies referred the Court to the rule provided for the domestic remedy in the defendant University.  In the instant case, the defendants cited section 17 (2) and (3) of the Nnamdi Azikiwe University Act which provides as follows:

(2). If the Council, after considering the report of the investigating committee, is satisfied that the person in question  should be removed as specified in subsection (1) of this section, the Council may so remove him by an instrument in writing signed on the directions of the Council.

(3). The Vice-Chancellor may, in case of misconduct by a member of staff which in the opinion of the Vice Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

To the defendants, from a dispassionate reading of section 17 (2) of the Act, it is the report of the Investigating Committee which the Council of the University will take into account in determining whether a suspended staff should be removed from his office or employment, that unfortunately, in the instant case, by instituting the instant suit, the claimant prevented the 1st defendant from going through its internal dispute resolution mechanism by hastily filing this suit.  The Nnamdi Azikiwe University (1st defendant) is an artificial entity; and the rule applicable to it is that all things are prohibited except those specifically allowed.  This is in contradistinction to human beings for whom all things are permissible except those specifically prohibited.  The issue at hand is one of suspension; and the law is quite clear that an employee can challenge in Court his/her suspension if he/she thinks it is unlawful.   See Mrs Abdulrahman Yetunde Mariam V. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NLLR (pt. 103) 40 NIC, ABC Ltd V. Ufondu (1997) 10 NWLR (pt. 523) 169 CA and Mr. Bisiriyu Adegoke Sheu V. Lagos NURTW (First BRT) Cooperative Society Ltd (2015) 62 NLLR (pt. 216) 40.  The duty is thus on the employee to prove the unlawfulness of the said suspension since it is the employee who alleges that.  I so hold.

 

  1. The claimant’s issues (1) and (2) question the procedure adopted in suspending him as well as the suspension itself by 1st defendant, hinging the issues primarily on Sections 36 and 41 of the 1999 Constitution, arguing that his suspension via Exhibit CW1/3 was done in violation of his constitutional right to fair hearing and freedom of movement.  In proof of his case, therefore, the claimant relied on sections 36 and 41 of 1999 Constitution, and Adekoya V. Federal Hosuing Authority (supra), United Bank for Africa Plc V. Oranuba (supra), Federal Polytechnic, Ede V. Oyebanji (supra), Gyang V. COP, Lagos State (supra), Assams V. Ararume (supra), Akinwale V. Nigerian Army (supra), Akaniyene & ors V. Etim (supra) and National Union of Electricity Employees V. Bureau of Public Enterprises (supra).  The claimant also relied on paragraphs 11, 12, and 13 (e), (f) and (g) of his statement on oath sworn to on 7th June, 2016 and adopted on 1st November, 2018 and paragraphs 11, 12, 15 and 16 of the claimant’s additional statement on oath also adopted on 1st November, 2018.  Since section 36 of the 1999 Constitution is critical, in fact the very basis of the questions/issues the claimant posed for determination in his originating summons as well as the supporting written address, it becomes pertinent whether the claimant’s case can stand on that score.  This is the very basis of the defendants’ argument that the claimant has no immunity against being suspended during investigation.

 

  1. On whether a remedy lies under Chapter IV of the 1999 Constitution (as amended), this Court in Dr. Cecilia Arinye V. The University of Lagos, unreported Suit No. NICN/LA/305/2017, the judgment of which was delivered on February 16, 2018 had this to say:

The recent decision of the Supreme Court in Rev. Prof. Paul Emeka V. Rev. Dr. Chidi Okoroafor & ors (2017) 14 NWLR (pt. 1577) 410 suggests the fallacy/error of the claimant’s reliance on section 36 of the 1999 Constitution especially with the Court of Appeal decision in Adeyanju V. WAEC relied upon by the claimant.  In Rev. Prof. Paul Emeka V. Rev. Dr. Chidi Okoroafor & ors, the Supreme Court, relying on Bakare V. LSCSC (1992) 8 NWLR (pt. 266) 641 at 699-700 and Ekunola V. CBN (2013) 15 NWLR (pt. 1377) 224 at 262-263, held that breach of a fundamental right under section 36 (1) of the Constitution arises only where the denial of fair hearing has been charged against a court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties.  In other words, there would be no case of infringement of the right to fair hearing under section 36 (1) of the 1999 Constitution when the decision alleged to have violated ones Constitutional right to fair hearing is that of non-judicial body.  The Supreme Court then concluded by holding that while the appellant may contend that he has not been treated fairly by the respondents, since they or the Assemblies of God Church are not a Court or Tribunal established by law, his remedy does not lie under Chapter IV of the 1999 Constitution (as amended).  That the right to be a member a particular church or the right to worship at a particular church or to be a minister of a particular church is not a right cognizable under Chapter IV of the 1999 Constitution.  A careful reading of Rev. Prof. Paul Emeka V. Rev. Dr. Chidi Okoroafor & ors will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the Constitutional form under section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin Maxims – audi alterem partem and nemo judex in causa sua.  In Honourable Justice Bassey Tambu Ebuta V. National Judicial Council & 3 ors unreported suit No: NICN/ABJ/301/2016, the judgment of which was delivered on 13th July, 2017, I noted that since Mr. Yesufu Amuda Garba & ors V. University of Maiduguri (1986) LPELR -1305 (SC); (1986) 1 NWLR (pt. 18)550; (1986) All NLR 149; (1986) 2 SC 128, fair hearing in the world of work has been successfully watered down to just opportunity to be heard.  The defendant’s administrative panel set up is not a court or a tribunal established by law, as such, the applicability of section 36 of the 1999 Constitution does not even arise.  The defendants cannot be accused of not complying with section 36 of the 1999 Constitution in the circumstances of the instant case and as the claimant has done in her submissions.  I so find and hold.

 

  1. The claimant stated at paragraph 2.04 of his final written address that on 9th May, 2016 he was served with the letter of suspension dated 4th May, 2016; that he was at the same time also served with a letter of query dated 29th April, 2016 which was referred to in the letter of suspension.  By CW1/3, the claimant’s suspension was based on investigation made at Kogi State University, Anyigba, on indications from records in the Registry of the 1st defendant and a report from 1st defendant’s CEP students/CEP Director.  The claimant was accordingly suspended from duty/the University for a period of three months in the first instance while the case is forwarded to the Senior Staff Disciplinary Committee for thorough investigation and recommendations in line with  Chapter 13, section 4 (iii) of the Nnamdi Azikiwe University Senior Staff Conditions of Service which states that:

Whenever on the opinion of the Vice-Chancellor, a prima facie case of misconduct has been made against an employee and it is necessary to investigate the matter further with a view to determining the guilt or the appropriate disciplinary action, the employee may be suspended pending the determination of the case.

In my candid view, the principle of fair hearing, at this stage, is shut out. The principle of natural justice is kept in abeyance. See Lewis v. Heffer & Sons (1978) 3 All ER 254 at page 364 and Longe v. First Bank of Nigeria Plc (2006) LPELR-7682 (CA). Furthermore, whether service of Exhibits CW1/3 and CW1/4 on the claimant was on 29th April, 2016 or 4th May, 2016 or 9th May, 2016 is besides the point.  What matters is that the claimant was served the exhibits at all and same was duly acknowledged by the claimant. Service of the two exhibits on the claimant at whatever point in time was opportunity enough for him to air his grievance or vent his reaction to the query and suspension before the issuing authorities.  I so hold.

 

  1. Relief (a) is for a declaration that the decision of the defendants suspending the claimant from his duties as a staff of the 1st defendant, placing the claimant on half salary, forbidding the claimant from visiting Nnamdi Azikiwe University and forwarding the alleged case against the claimant to the Senior Staff Disciplinary Committee of the 1st defendant as contained in the letter of suspension dated 4th May, 2016, issued by the 3rd defendant was reached in breach of the claimant’s constitutional rights to fair hearing and freedom of movement and freedom of association; that it violates both the Nnamdi Azikiwe University Act and Nnamdi Azikiwe University Senior Staff Conditions of Service; that it is ultra vires the powers of the defendants, and is null and void and of no legal effect whatsoever.  Because relief (a) seeks for a declaration, the burden is on the claimant to prove his entitlement to it.   Firstly, claimant’s deployment of INEC v. Okoronkwo (supra) to contend that suspension is a punitive act and also a completed act in itself that entitles the aggrieved person to a right of action challenging his suspension in court to seek remedy is of no moment. The Court of Appeal had set aside the three declaratory reliefs granted by the trial Federal High Court in favour of the respondent in that case against the Appellant regarding the wrongfulness of the respondent’s suspension, continuance of his salary, promotion and emoluments/benefits; and dismissed the respondent’s case, same having been caught by statute of limitation which rendered the respondent’s action statute barred. The law is that where a party seeks a declaratory relief, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any); such a relief will not be granted, even on the admission of the defendant.  See Nyesom V. Peterside & ors (2016) LPELR- 40036 (SC), Okereke V. Umahi & ors (2016) LPELR -40035 (SC), Omisore V. Aregbesola (2015) NWLR (Pt. 1482) 297-299 and Ucha V. Elechi (2012) 13 NWLR (pt. 1317) 230.

 

  1. The claimant’s reliance on the constitution and on the enabling law of the 1st defendant and the regulations governing the Conditions of Service of Senior Staff requires an excursion into the law relating to suspension generally.  The law as to suspension was considered and summarized by this Court in Mr. Bisiriyu Adegoke Sheu V. Lagos NURTW (First BRT) Cooperative Society Limited (supra) in the following words:

It was the contention of the claimant that the letter of invitation to the Disciplinary Committee and the letter of indefinite suspension of the claimant by the defendant (both dated 6th March, 2012) are null, void and of no legal effect whatsoever, having contravened section 36 of the 1999 Constitution and the rules of natural justice is immaterial.  For instance, Longe V. FBN Plc (supra) held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights.  See also Ayewa V. University of Jos (2000) 6 NWLR (Pt. 659) 142, Akinyanju V. University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Shell Pet. Dev. Co. V. Lawson Jack (1998) 4 NWLR (Pt. 545) 249…

 

I indicated earlier that the yardstick for challenging a suspension is whether the suspension is necessary, reasonable, valid and hence lawful.  In this respect, an exposition of the law as to suspension may not be out of place.  The learned author, EM Rao, in the book, Industrial Jurisprudence: A Critical Commentary (LexisNexis Butterworth: New Delhi, India), 2008 variously discussed the ambit of the law relating to suspension, for instance, the learned author first acknowledged the right of the employer to suspend; and then at page 116, relying on Hotel Imperial V. Hotel Workers Union (1995) 1 LLJ 544 (SC), the learned author asserts that in the regulation of an employment relationship, the power to suspend an employee is not an implied term in an ordinary contract between an employer and an employee.  The Supreme Court in Longe V. First Bank of Nigeria Plc (supra) acknowledge this much too.  Such a power can only be the creation of either a statute governing the contract or of an express term in the contract itself; and, in the absence of it, the employer would have no power to suspend an employee and, if he does, he will have to pay wages during the so-called period of suspension.  To the learned author at page 178, relying on Khem Chand V. Union of India (1963) 1 LLJ 665 (SC), suspension either pending enquiry or as a punishment is not termination.  See also Longe V. First Bank of Nigeria Plc (supra).  That even though an order of suspension affects the employee injuriously, he continues to be in service.  The learned author continues at pages 236-237 that there are two types of suspension: ‘suspension pending enquiry’ and ‘suspension as a punishment’. Suspension pending enquiry is not a punishment per se, for if the employee is not found guilty, the suspension has to be lifted and he has to be paid to full wages for the period, as if he was never suspended.  On the other hand, suspension imposed on the establishment of guilt is in the nature of punishment; it can have adverse impact on the career prospects of the employee within the organization.  The Learned author then concludes the discourse that the power of suspension is not an unfettered power; the power has to be exercised sparingly, reasonably and on good grounds.  The Nigerian case of Udemah V. Nig. Coal Corp. (1991) 3 NWLR (Pt. 180) 477 CA also acknowledged this state of the law holding that an employer has the right to suspend an employee for the purpose of investigation or disciplinary action.  The case went on that in doing that, the employer must comply with any existing regulation governing such action.

 

This Court, in Mrs Abdulrahman Yetunde Mariam V. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NLLR (Pt. 103) 40 NIC, also had cause to review the law on suspension.  This is what it said –

There is no gainsaying that an employer has the right to discipline an erring staff (and suspension is one such disciplinary measure – see University of Calabar V. Esiaga (1999) 4 NWLR (Pt. 502) 719 at 739-740, Boston Sea Fishing Co. V. Ansell (1886-90) All ER 65 at 67, Lewis V. Heffer & Sons (1978) 3 ALL ER 254 and Shell Petroleum Development Company Ltd V. Lawson-Jack (1998) 4 NWLR (Pt. 545) 249) in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer.  See NEPA V. Olagunju (2005) 3 NWLR (Pt. 913) 602. Indeed, as held in Shell Pet. Dev. Co. (Nig) Ltd V. Omu (1998) 9 NWLR (Pt. 567) 672, it is a disruption of an ordinary employers business to fetter him with an injunction not to discipline his servant.  Here, the employer has the right to suspend an employee when necessary, with or without pay or at half pay.  The English case of Hanley V. Pease & Partners Ltd (1915) 1 KB 698 and Marshall V. Midland Electric (1945) 1 All ER 653, however, held that employers cannot suspend without pay where there is no express or contractual right to do so.  The rationale is that in suspending an employee without pay, the employer has taken it upon itself to assess its own damages for the employee’s misconduct as the sum which would be represented by the wages of the days the employee remains suspended. …

What I gather from all these authorities is that the power to suspend and its ambit is a function of law and or the terms and conditions of the contract of employment. See Arinye V. University of Lagos (supra).

 

  1. Now, Exhibit CW1/3 as has been pointed out is the letter suspending the claimant.  It reads:

Investigation made at Kogi State University, Anyigba and evidences gathered indicate that you registered as a full time student, that your first registration was in April, 2009; and that you were offered admission to study for M.Sc/Ph.D degrees in Public Administration in the 2008/2009 (sic) following which you obtained an M.Sc in 2011 and Ph.D in 2014 during which period you were a full time teaching staff (Lecturer) in Nnamdi Azikiwe University, Awka.

 

This practice of engaging in full time studies while on full time employment contravened CAP 13. S. 7 (ii) (c) of the Senior Staff Conditions of Service of Nnamdi Azikiwe Univeristy, Awka which prohibits an employee of the University on full time employment from engaging in full time studies unless he is on authorized study leave with pay.

 

Records in the Registry, Personnel, indicate that you did not obtain any approval from Nnamdi Azikiwe University to undergo further studies towards an M.Sc and or Ph.D degree at the Kogi State University, Anyigba.

 

This is contrary to the provisions of CAP, 2 S. 2.8 of the Senior Staff Conditions of Service of Nnamdi Azikiwe Univeristy, Awka which states that, No member of staff on full time appointment shall engage in another job or studies without the approval of the Vice Chancellor.

 

On 29th April, 2016, you were queried to explain within forty-eight (48) hours why you should not be disciplined with the provisions of the Regulations and Conditions of Service of Nnamdi Azikiwe Univeristy, Awka for contravening specified rules stated in the query.  As at the time of writing this letter of suspension today, 4th May, 2016, you have not replied to the query nor made any explanations.

 

Reports from our CEP students/Director CEP stated that you have refused to release the results of five (5) courses you taught them to enable those students graduate.  The course codes are Pub. 341, Pub 442, Pub. 415, Pub 202 and Pub 105.

 

CAP 13. S.4 (ii) of the same document (sic) states that whenever in the opinion of the Vice-Chancellor misconduct… has been committed by an employee, the Vice Chancellor may suspend the employee.

 

Accordingly, I am directed to issue a letter suspending you and you are hereby suspended from duty/the University for a period of three (3) months, in the first instance, while the case is forwarded to the Senior Staff Disciplinary Committee for through investigation and recommendations.

 

The suspension takes effect from the date of the letter.  You are to hand over any University property in your possession to your Head of Department, Meanwhile during the period of the suspension you will be on half salary.  You are also forbidden from visiting the University except with express permission of the Vice-Chancellor or by an invitation by the Investigating Committee.  You shall not be appraised until the suspension is lifted in writing.

 

  1. The claimant complained that having suspended him from work, the defendants placed him on half salary which, to the claimant, is a punitive measure; that defendants restrained or restricted him from entering the 1st defendant’s premises; and that Exhibits CW1/3 and CW1/4 were contemporaneously served on him on 9th May, 2016; that all of these disclosed reasonable cause of action against the defendants which gave him the right of action exercised vide this suit.  In reaction, the defendants argued that claimant’s suspension was a temporary deprivation of access to the 1st defendant University and, by Exhibit CW1/3, the Vice Chancellor can grant permission to the claimant to visit 1st defendant University vide chapter 13, section 4 (iv) of Senior Staff Conditions of Service of the University or by an invitation by the Investigating Committee.  There is no evidence before the Court to indicate that the claimant wrote to be allowed access to the 1st defendant University and was denied the request.  This is more so when, by Exhibit CW1/7, claimant wrote, inter alia to the Hon. Ministry of Education dated 13th May, 2016 that:

“On Monday, 9th May, 2016, which was the next working day after my seven days sick leave, I came to the Department to perform my normal and usual official duties as a Lecturer in the University, I was totally surprised to be served with a letter of suspension from duty with immediate effect and prohibited from coming to the University”.

As it is therefore, the complaint of the claimant in that regard is untenable; it cannot be sustained and it goes to no issue.  I so find and hold.

 

  1. I indicated earlier that the yardstick for challenging a suspension is whether the suspension is necessary, reasonable, valid and hence lawful. In my humble view, the claimant has not shown that his suspension was unnecessary, unreasonable, invalid and hence unlawful.  Issue (2) accordingly fails and so is hereby dismissed.

 

  1. Issue (3) is whether the suspension of the claimant by the defendants was premised on false and wrongful grounds.  The claimant submitted that assuming but not conceding that he was denied fair hearing, his suspension would still remain unlawful and bound to be set aside.  The duty is thus on claimant to prove the unlawfulness of the said suspension since he is the one who alleges that. Of course, an aggrieved employee has the right to approach this Court to challenge his/her suspension.  As stated earlier, the yardstick, however, for challenging the suspension is whether the suspension is necessary, reasonable, valid and hence lawful.  See Mr Bisiriyu Adegoke Sheu V. Lagos NURTW (First BRT) Cooperative Society Limited (Supra).  In other words, the claimant will succeed only if he shows the suspension to be unnecessary, unreasonable, invalid and hence unlawful.  Exhibit CW1/3 dated 4th May, 2016 is the letter suspending the claimant.  It is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or a punishment for an infraction.  See Longe V. First Bank of Nigeria Plc. (supra) and Mariam V. University of Ilorin teaching Hospital Management Board & anor (supra).  So, it is within the disciplinary right and powers of the defendants to issue Exhibit CW1/3.  It is for the claimant to show that the defendant acted unreasonably in issuing Exhibit CW1/3.  I so hold.

 

  1. In proof of the wrongfulness of his suspension, the claimant referred to Exhibits CW1/5 and CW1/10; and on section 17 (3) of the Nnamdi Azikiwe University Act.  Exhibits CW1/5 and CW1/10 are documents/letters from the claimant to the defendants; as such they cannot be proof of any wrongfulness of the suspension.  I so hold.  To the claimant, he can only be suspended by the defendants on ground of misconduct.  I earlier held that the suspension of the claimant vide Exhibit CW1/3 is based on investigations made by the 1st defendant and other grounds stated therein. That satisfies section 17 (3) of 1st defendant’s Act evoked by claimant. Furthermore, the authorities, I reiterate, are pretty clear that when it comes to suspension, the question of fair hearing and/or natural justice is immaterial.  See Longe V. First Bank of Nigeria Plc (supra).  As it is, the claimant has not been able to prove that his suspension was unnecessary, unreasonable, invalid and hence unlawful.  This ground fails and so is hereby dismissed.

 

  1. Regarding issue (4), whether the claimant is entitled to the reliefs sought in this suit, it is trite that a Court cannot and should not engage in hypothetical and academic exercise.  It is not the function or indeed the duty of the Court to embark on advisory opinion or abstract or on speculation.  The Court has no jurisdiction to do that.  The Courts are established to determine live issues.  See Agbakoba V. INEC (2007) LPELR -8562 (CA), Scirrocco Int. Ltd V. Unity Bank Plc (2016) LPELR-40265 (CA) and Ukachukwu V. UBA & ors (2011) LPELR – 9189 (CA).  The declaratory relief not having been established, it is my determination that all the other four reliefs which are predicated on the success of relief (1) have become unsustainable.  I so hold.

 

  1. On the whole, I see no merit in the claimant’s case.  It fails and so is hereby dismissed.

 

  1. Judgment is entered accordingly.  I make no order as to cost.

 

…………………………………

Hon. Justice J.I. Targema, Ph.D.

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