Dr. Raphael Olufemi Yewande -VS- University Of Lagos & 10 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: 22^NDJANUARY 2019 SUIT NO. NICN/LA/93/2016

BETWEEN

RAPHAEL OLUFEMI YEWANDE CLAIMANT

AND

UNIVERSITY OF LAGOS
VICE- CHANCELLOR, UNIVERSITY OF LAGOS
THE SENATE, UNIVERSITY OF LAGOS
THE UNIVERSITY OF LAGOS GOVERNING COUNCIL
THE REGISTRAR & SECRETARY TO THE UNIVERSITY

OF LAGOS GOVERNING COUNCIL

PROFESSOR L. O. OYEKUNLE DEFENDANTS
PROFESSOR J.E.O. ABUGU
PROFESSOR S. O. GIWA
PROFESSOR HOPE EGHAGHA
PROFESSOR L.O. KUYE
MR. S.O. DADA

Representation:

Benjamin Siyaka appears for Claimant

Dr. Abiodun Odusote, with Mrs. Abimbola Odusote and Anthony Uzzi appear for Defendants.

JUDGMENT

On 17^th February 2016, the Claimant commenced this suit via the General Form of Complaint and Statement of Facts (accompanied by List of Witnesses, Witness Statement on Oath, List of Documents and Copies of the Documents). On the 7^th of March 2018, Claimant brought an application dated 13^th February 2018, to amend his General Form of Complaint, Statement of Facts and the accompanying processes. The application was granted. Claimant, on 1^st November 2018 again got an Order for amendment of his General Form of Compliant via a motion on notice dated 10^th August 2018. Claimant claims against the Defendants as follows:

A declaration that the 5^th Defendant’s letter dated 13^th November, 2015 to the Claimant titled “DISMISSAL FROM THE SERVICE OF THE UNIVERSITY OF LAGOS: purporting to terminate the Claimant’s appointment with the 1^st Defendant is unlawful, invalid, null and void and of no legal effect whatsoever.

A declaration that the Claimant is still in the service of the 1^st Defendant

iii. A declaration that the 6^th to 11^th Defendants’ recommendation to the 3^rd Defendant that the appointment of the Claimant with the 1^st Defendant should be terminated is unlawful, invalid, null and void and of no legal effect whatsoever.

A declaration that the 4^th Defendant is not entitled to terminate the appointment of the Claimant from the service of the 1^st Defendant without any substantial and substantiated evidence in support of the allegation of misconduct against the Claimant as provided for under the University of Lagos Act.

A declaration that the purported termination of the Claimant’s appointment with the 1^st Defendant based on the report of the panel which was comprised of the 6^th to 11^th Defendants and headed by the 6^th Defendant negates the purpose and intention of the provision of Section 18 of the University of Lagos Act.

An order setting aside the 6^th to 11^th Defendants’ recommendation to the 3^rd Defendant that the appointment of the Claimant with the 1^st Defendant should be terminated.

vii. An order setting aside the purported termination of the Claimant’s appointment with the 1^st Defendant and nullifying the 5^th Defendant’s letter to the Claimant in that regard.

viii. An order compelling the 1^st to 5^th Defendants to reinstate and/or restore the Claimant to his post as lecturer in the University of Lagos with all his rights, entitlements, promotions and other prerequisites of his office

An order compelling the 1^st Defendant to pay to the Claimant all his salaries and allowances from November, 2015 till the day of judgment and thereafter.

An order mandating the 1^st to 5^th Defendant to forthwith release to the Claimant the letter of confirmation of his appointment and promotion.

An order of injunction restraining all the Defendants, their agents, servants and other such representatives howsoever called from further interfering with the Claimant’s performance of his duties and enjoyment of all the privileges connected with his position as a lecturer in the service of the 1^st Defendant.

In reaction, the Defendants entered conditional appearance vide the Memorandum of Appearance of 24^th March 2016. They, on the 6^th of October 2016, filed their joint Statement of Defence and other Defence processes. They also filed a Notice of Preliminary Objection on the same 6^th October 2016 praying that the case be struck out against the 2^nd to 11^th Defendants. Ruling was delivered on the 18^th of May 2017 dismissing the Objection. Trial commenced on 25^th April 2018 and ended on same date.

At the trial, the Claimant testified on his behalf and was cross examined. He tendered 18 exhibits marked as exhibits C1 to C17 and C18 (1-35: the result spread sheets) as follows:

Exhibit C1 – Claimant’s appointment letter as Assistant Lecturer
Exh”ibit C2 – Memorandum of Appointment
Exhibit C3 – Conditions of Service governing Senior Staff
Exhibit C4 – Letter of Submission of Marksheets for Correction on the

Broadsheet dated 14/5/2014

Exhibit C5 – Letter of Submission of Amended Result and Marksheets for

correction on the Broadsheet dated 31/7/2014

Exhibit C6 – Report of Panel of Investigation of Prof. Ilori (3^rd Panel)
Exhibit C7 – Report of Panel of Investigation of Prof. Amund(2^nd Panel)
Exhibit C8 – Report of Panel of Investigation of Prof. Azenabor (1^st Panel)
Exhibit C9 – Report of the Senate Panel of Investigation of Prof.

Oyekunle(4^th & last panel)

Exhibit C10 – Re: Query of 29/5/2015
Exhibit C11 – Letter of Dismissal of 13/11/2015
Exhibit C12 – Appeal on Compassionate Grounds of 30/12/2015
Exhibit C13 – Minutes of 28/10/2015
Exhibit C14 – Minutes of the Faculty Board meeting of

17/11/2015

Exhibit C15 – Minutes of the 293^rd Meeting of Council of 29/10/2015
Exhibit C16 – Claimant’s Solicitors letter dated 15/1/2016
Exhibit C17 – Claimant’s Solicitors letter dated 5/2/2016

Defendants called no witness. At the close of trial, the Court ordered parties to file and serve their respective written addresses starting with the Claimant since the Defendant called no witness. The Claimant’s Final Written Address dated 10^th August 2018 was filed on 16^th August 2018. Defendants’ Final Written Address dated 8^th October 2018 was filed on 9^th October 2019. Claimant filed a Reply on Points of Law on 30^th October 2018. The Final Written Addresses were adopted on 7^th November 2018 and the Court adjourned for judgment.

Facts of the Case:

As derived from Claimant’s case, he was employed by the 1^st Defendant on 9^th March 2010 as an Assistant Lecturer. The employment is governed by the University of Lagos Act, 1^st Defendant’s Memorandum of Appointment dated 28^th January, 2010, Claimant’s letter of appointment dated 2^nd February, 2010 and 1^st Defendant’s Condition of Service Governing Senior Staff. Shortly after he joined the services of the 1^st Defendant, he was made the course adviser for 200 Level Chemistry Education of the 2010/2011 academic session. In 2013, the then Head of Department of Science and Technology Education Dr. (Mrs) Gladys Esiobu handed two files containing mark sheets and the 2011/2012 broadsheet of the extra year 400 Level Chemistry Education students submitted by one Dr. Blessing Adeoye to the Claimant. He was directed to take over as Relief Course Adviser for the extra year 400 Level Chemistry Education students from Dr. Blessing Adeoye who was going for training overseas. It is Claimant’s case that prior to January 2013, when the Claimant took over as Relief Course Adviser, the 400 Level Chemistry Education second semester 2011/2012 academic session broadsheet with twenty nine (29) students including one Wahab, Afeez Babatunde with Matriculation Number 080311047 who had 45 Total Compulsory Outstanding Units (TCOU) with only 4 units listed as TCOU indicating that he had passed 41 units not reflected on the broadsheet dated 7^th December, 2012, had earlier been processed and presented to Dr. Gladys Esiobu for her signature by Dr. Blessing Adeoye. The same was also signed by the Dean of the Faculty of Education Professor Mopelola Omoegun, the Director of Centre for Information and Technology System (CITS) Professor C. O. Uwadia and the 2^nd Defendant Professor R. A. Bello.

It is Claimant’s case that as a Relief Course Adviser, he was saddled with the responsibility of attending to complaints from students on matters concerning missing results and courses passed but not added to the cumulative units passed; and it was solely in this capacity that Mr. Wahab approached him with a verbal complaint that the courses he had passed were not added to the cumulative units already passed by him. Based on the verbal complaint, the Claimant initiated investigation on it and consequently approached the Department of Science & Technology Education with a request for copies of the mark sheets which were made available to him by one Mr. Olubode Oludare, a clerical staff in the department. The copies of the mark sheets had the departmental stamps on them and they all corresponded with the copies earlier handed over to the Claimant. It was on the strength of the materials from Dr. Blessing Adeoye duly signed by the 2^nd Defendant, the Dean of the Faculty of Education, the Acting Head of Department of Science and Technology Education and the Director of C.I.T.S that the Claimant wrote a letter dated 14 May, 2014 ( Exhibit C4) to the Director of C.I.T.S in respect of Mr. Wahab requesting for corrections in the broadsheet for the following courses; CHM201, CHM306, GST307, GST102, CHM403, CHM418,MAT101, CHM309, CHM303, MAT102, HM203, CHM307, FSC104, CHM308 stating in the said letter that the foregoing courses had been removed from the list of outstanding courses but were not added to the cumulative units passed. He attached the relevant mark sheets and second semester 2011/2012 and 2012/2013 broadsheets to the letter. He got no response from CITS and no information was conveyed to him up to the time he commenced his annual leave towards the very tail end of the third week of May, 2014 which lasted till the very first week in July, 2014. It is Claimant’s case that he honestly believed that the letter was receiving the attention of CITS. It was some days after his return from his annual leave that he leant that the Business Committee of Senate (BCOS) has taken over the responsibility of amendment of results. The Claimant as course adviser equally wrote others letters dated 31^st July 2014(Exhibit C5) to the Director of Academic Affairs, University of Lagos requesting correction in the broadsheet with respect to Obatayo Sunday Joel and Olasupo Sojobi Benjamin, in accordance with the format instituted by the HOD of the Claimant’s department, based on their oral requests. Claimant states that it was subsequently to the foregoing, that he discovered that the responsibility for amendment of result had been shifted from CITS to Academic Affairs. Claimant states that his request with regard to Mr. Obatayo and Mr. Olasupo Soji Benjamin were attended to and necessary amendments effected. However Mr. Wahab’s results could not be attended to because it was discovered that Mr. Wahab’s mark sheets were all falsified and the results of Mr. Wahab were also misrepresented on the 2011/2012 broadsheet before Dr. Adeoye presented same to the HOD for her signature and subsequently the signatures of the Dean of the Faculty of Education, the Director of CITS and the 2nd Defendant.

Four different panels were constituted to investigate the falsification of results and the Claimant appeared before all the panels and made representations before them. It is Claimant’s case that none of the Panels identified him as being involved in any way in the falsification of mark sheets or misrepresentation of results on the broadsheet. The 1^st three Panels made various findings and recommendations. The fourth Panel which was constituted by the 3^rd Defendant on the 4^th Defendant’s request had the 6^th to 11^th Defendants as members. After its own investigation, the 4^th Panel made several findings with respect to certain members of staff including the Claimant and concluded that there was enough evidence that the Claimant was involved in falsification of students’ results. The Panel found the Claimant culpable and recommended his dismissal from the service of the 1^st Defendant.

It is Claimant’s contention that the 3^rd Defendant in its meeting of 14^th October 2015 considered his appointment together with that of few other members of staff as worthy of confirmation and then recommended the confirmation his appointment/promotion, to the 4^th Defendant. The 4^th Defendant in its meeting of the 29^th October, 2015 approved the confirmation of his appointment/promotion. It is Claimant’s case that on 17^th November 2015, the Faculty of Education Board of Studies held its meeting in the Faculty Board Room, D9 where the Dean of the Faculty informed the Board of staff whose appointments had been confirmed/promoted by the Central Appointments and Promotion Board; which also included the name of the Claimant. However, the 5^th Defendant served on the Claimant a letter of dismissal (Exhibit C11) while holding the confirmation and promotion letters. The Claimant protested against his dismissal and appealed for a re-consideration without success.

Submissions of Counsel:

The Claimant raised the following issues for determination in his final address:

(i) Whether the Defendants have statutory and/or Constitutional power and jurisdiction to try, convict and punish the Claimant by way of dismissal from the service of 1^st Defendant for misconduct bothering on falsification of student mark sheets?

(ii) Whether the Defendants complied with the requirement of fair hearing as enshrined in Section 36(1) of the 1999 Constitution before the Claimant was dismissed from the service of the 1^st Defendant?

(iii) Whether in all the circumstances of this case, there was bias or likelihood of bias against the Claimant by the Defendants contrary to section 36(1) and (4) of the 1999 Constitution?

(iv) Whether the findings, conclusion and recommendation of the Panel with respect to the Claimant as contained in Exhibit C9 are perverse and unreasonable? If the answer is yes, then are the actions purportedly taken on Exhibit C9 by the 2^nd to 5^th Defendants culminating in the dismissal of the Claimant from the service of the 1^st Defendant within the contemplation of Section 18 of the University of Lagos Act?

(v) Whether the 1^st to 5^th Defendants can validly deny confirmation of the Claimant’s appointment and promotion?

On issue one, the Claimant submits that Section 6(1) of the 1999 Constitution vests judicial powers in the Courts established for the Federation and that nowhere in either the Constitution or any Acts of the National Assembly including the University of Lagos Act is judicial powers vested in any of the Defendants. Claimant contends that a very careful reading and critical examination of Exhibit C11 together with Exhibits C6, C7, C8 and C9 will show that the Claimant was tried, convicted and punished for the offence of falsification of student result sheets by the Defendants without any observance of either Constitutional or statutory provisions. He contends that the intention of the Constitution and the legislators is to the effect that an alleged offender under any Act or Law must be tried in Court. He referred to the cases of Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306, Sofekun v. Akinyemi & 3 Ors (1980) 5-7 SC, FCSC v. Laoye (1989) All NLR 35, Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and Dongtoe v. Civil Service Commission, Plateau State (2001) 9 WRN 123.

On issue two, Claimant contends that the relationship between him and the 1^st Defendant and all matters relating thereto, especially the terms and condition of employment and the procedure for termination of his appointment are all governed by Exhibits C1, C2, C3 and the University of Lagos Act. He contends that his employment is one with statutory flavour and hence cannot be terminated without strict compliance with all the provision of the University of Lagos Act on fair hearing. Claimant also contends that the 4^th Panel lacked the requisite statutory powers/jurisdiction to “identify Claimant’s level of involvement and culpability in the alleged falsification of mark sheet” let alone making any “appropriate recommendation” in view of his submissions that only a Court of Law is constitutionally and statutorily empowered to handle such issues.

Claimant argues that his right to fair hearing under section 36 of the 1999 Constitution and section 18 of the University of Lagos Act were breached by the Defendants.

On issue three, Claimant contends that in determining the likelihood of bias, the test is not subjective but objective. He submits that the investigative panel was biased based on its terms of reference.

On issue 4, Claimant identified aspects of the Panel’s Report which he considered to be perverse. He argued that the findings of the panel as contained in page 23 to 24 of Exhibit C9 with respect to the Claimant and upon which the actions of the 1^st to 5^th Defendants were based could best be described as palpably perverse and ultra vires the panel. Claimant also submits that it is not correct that he did not follow the procedure for requesting amendment in view of the Claimant’s un-contradicted evidence that there was no other procedure for requesting any amendment other than the one instituted by the HOD which involved the course adviser to write a letter requesting an amendment and create spaces for the signature of the Head of Department and the Dean of the Faculty. Claimant submits that 1^st to 5^th Defendants cannot take any valid action on the palpably perverse, mischievously unreasonable and intellectually illogical findings of the panel; especially after reference to the words used in section 18 of the University of Lagos Act.

On issue five, the Claimant submits that he has met the requirements for promotion, by obtaining his PhD, and the requirement for confirmation, by staying up to 3 years, beyond the probationary period. Claimant further submits that the Defendants’ are estopped from asserting anything to the contrary based on exhibit C14.

Defendants in their Final Written Address raised six issues for determination:

Whether the appointment of the Claimant had not lapsed by effluxion of time and operation of law.
Whether a Court can order a re-instatement of a dismissed employee when such order of re-instatement will make the University to violate express provisions of its extant Regulation particularly when the dismissed staff was on probation.
Whether the termination of Claimant’s appointment with the 1^st Defendant was not done pursuant to the terms and conditions of the contract of employment and whether the Claimant had proved in what manner the said terms were breached by the Defendants.
Whether a Court of law can order the confirmation and promotion of public servants who has failed to meet qualifying requirements for same.
Whether the Defendants have disciplinary powers to discipline an erring staff for misconduct relating to misrepresentation/falsification of results.
Whether new facts can be adduced for the first time in counsel written address.

Defendants argued issues one, two, three and four together and contend that by virtue of exhibits C1, C2 and C3, which regulates Claimant’s employment, Claimant’s employment did not enjoy statutory flavour at any material time; and that by the terms of Claimant’s contract, his employment had actually expired by effluxion of time, since at the time the appointment of the Claimant was terminated he had already been employed for upwards of (5) years as an Academic Staff without confirmation, as required by his employment terms. Defendants relied on the case of Ondo State University v Folayan (1995) 8 NWLR (Pt. 413) 292; (1994) 20 LRCN 259 to argue that Claimant’s employment had lapsed, due to non-confirmation.

Defendants also submit that the Court is not in a position to order a University to promote a staff member, particularly academic staff member that has not met the laid down condition precedent for promotion as promotion and confirmation of employment are neither automatic nor a matter of right for employees relying on Abenga v. Benue State Judicial Service Commission (2006) 14 NWLR (PT. 1000) 610 AT 622; and The Shell Petroleum Development & 5 ors V. E.N. Nwaka & Anor (2001) 10 NWLR PT 702 64 AT 84.

On the finding of the four panels, Defendants submit that the four panels found Claimant culpable of the alleged misconduct.

On whether the Defendants have disciplinary powers to discipline an erring staff for misconduct relating to misrepresentation/falsification of results, Defendants submit that Claimant was never “tried, convicted and punished for criminal offence”. Defendants contend that there is no doubt that they have the powers, under sections 17 and 18 of the University of Lagos Act, to set up administrative panel to investigate misconduct and met out disciplinary actions against erring staff members. Defendants submit that from the evidence before the Court, no panel convicted the Claimant of forgery and that there is a difference between the commission of an offence and misconduct relating to the misrepresentation/falsification of mark sheet. Defendants distinguished the case of Garba v University of Maiduguri (1986) 1 NWLR (Pt 18) 550 and Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 ALL N.L.R 306 relied on by Claimant, on the ground that in Denloye’s case, the tribunal found Dr Denloye guilty on a five count charge of infamous conduct and Dr Denloye was not given the opportunity to examine the evidence against him; but that in this case, there was no charge against the Claimant and the Claimant was not found guilty by the administrative panels. Defendants also pointed out that the Claimant was also given the opportunity to be heard and evidence against him presented to him to which he responded. In Garba’s Case, Defendant submits that the accuser was the Chair of the panel and students were found guilty of criminal allegations of destruction of properties without knowing the evidence against them.

Defendants further submit that they have the powers to set up investigation panels to investigate allegations of misconduct – Obiegbu V. UniAbuja (2005) 9 NWLR (PT. 930) 310; F.C.S.C V Laoye (1989)2NWLR (Pt. 106) 652 at 729.

On whether new facts can be adduced for the first time in Counsel’s written address, Defendants contend that Claimant cannot introduce fresh evidence and allege lack of fair hearing via Counsel’s address. Defendants note that Claimant amended his Claim twice and at no stage did he make allegations of violations of fair hearing in his pleadings, statement on oath or in his oral evidence before the Court. They submit that Claimant’s reliefs/prayers do not contain any allegation or facts of violation of fair hearing and that Claimant also confirmed in his pleadings, statement on oath and under cross-examination that he was heard by four different panels.

In Reply on Points of Law, Claimant noted the fact that Defendants had abandoned their pleadings by calling no evidence, and thus, cannot make arguments not founded on evidence to state that Claimant had opportunity to present his case.

Court’s Decision:

I have carefully considered Claimant’s processes and evidence in this case. I have also considered Counsel written submissions and authorities cited in the final addresses; and set a lone issue down for determination:

Whether the Claimant is entitled to his claim.

In addressing the above issue, I shall delve into the issues raised by both parties, and consider their arguments in resolving the issue set by the Court. However, I find it imperative to first resolve the issue of the status of Claimant’s employment; whether it is one with statutory flavour or not. The Defendants, in their arguments submitted that since the Claimant’s employment is regulated by exhibits C1, C2 and C3, it lacks statutory flavour and therefore, a mere master and servant relationship. Claimant opposed this submission. Without having need to refer to Claimant’s submissions on the issue, I refer to just an aspect of Defendants’ arguments, which shows that Defendants were never in doubt of the nature of Claimant’s employment. In paragraph 4.2.4 of Defendants’ argument, immediately following their submission that Claimant’s employment lacked statutory flavour, Defendants argued as follows:

12 (viii) of the University of Lagos Revised Conditions of Service Governing Senior Staff (Exhibit C3) is a subsidiary legislation of the University of Lagos Act 1962 and has the same force of law.

Specifically Section 12 of the University of Lagos Act 1962 empowers the University, in pursuant of the University Act to issue statutes/ regulations. Accordingly, the University has made regulations to uphold university teaching standards and research. That is why the University formulated guidelines and regulations to the effect that nobody that is a serious academic should spend more than four years on the Assistant Lecturer grade. This Regulation as a subsidiary instrument has the effect of a law. S. 19(1) and S. 37 (1) of the Interpretation Act.

Further, the condition of service provides that: Sec 3A ”subject to the Act and statues, the filling of vacancies in and promotions to academic posts (including newly created ones) shall be the responsibility of Council on the recommendation of Senate” Sec 3B

A cursory look at the aforesaid, it becomes germane to state that by virtue of the University of Lagos Act, the Claimant was still a staff under probation as a lecturer in the University of Lagos

There is no doubt that the Defendant has the power under sections 17 and 18 of the University of Lagos Act to set up administrative panel to investigate misconduct and met out disciplinary actions against erring staff members.

These are just a few examples of references by Defendant to the University of Lagos Act, as an instrument that regulates Claimant’s employment. This clearly shows Defendants’ awareness and acceptance that Claimant’s employment is regulated by the University of Lagos Act, hence one with statutory flavour with its attendant implications. Now to the Reliefs sought by the Claimant.

The first Relief sought by Claimant is:

A declaration that the 5^th Defendant’s letter dated 13^th November, 2015 to the Claimant titled “DISMISSAL FROM THE SERVICE OF THE UNIVERSITY OF LAGOS: purporting to terminate the Claimant’s appointment with the 1^st Defendant is unlawful, invalid, null and void and of no legal effect whatsoever.

It is not in dispute that on the 13^th of November 2015, 5^th Defendant wrote exhibit C11 to the Claimant, dismissing him from the service of 1^st Defendant. What is in dispute, and which will assist in determining the entitlement of Claimant to this Relief, is a finding on the first four issues raised and argued by the Claimant.

It is Claimant’s argument that Defendants, not being a Court of Law, lacks the statutory and/or Constitutional power and jurisdiction to try, convict and punish the Claimant by way of dismissal from the service of 1^st Defendant for misconduct bothering on falsification of student mark sheets. He relied on the cases of Dr E OA Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306, Sofekun v. Akinyemi (1980) 5-7 SC and FCSC v. Laoye (1989) All NLR 350. In Dr E OA Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306 at p.312 the Supreme Court held that:

Where the professional conduct of a practitioner amounts to a crime, it is a matter for the Courts to deal with and once the Court has found the practitioner guilty of an offence, if it comes within the type of cases referred to in section 13(1) (b), then the tribunal may proceed to deal with him under the Act.

Defendants challenge this position and argue that Claimant was dismissed from the services of the 1^st Defendant not because of the offence of falsification of mark sheets but his misconduct relating to the falsification/misrepresentation as an exams office; and that the issue of whether the Defendants have statutory and/or Constitutional power and jurisdiction to try, convict and punish the Claimant by way of dismissal from the service of the 1^st Defendant for misconduct bothering on falsification of student mark sheet, is of no moment. Defendants contend that they have the power under sections 17 and 18 of the University of Lagos Act to set up administrative panel to investigate misconduct and met out disciplinary actions against erring staff members. They referred to Obiegbu v. UniAbuja (2005) 9 NWLR (PT. 930) 310 to the effect that a University is empowered to set up an investigation panel to investigate allegation of misconduct and indiscipline in respect of its members of staff.

I have considered these two positions; and based on the finding that the University of Lagos Act regulates the employment of Claimant, find that sections 17 and 18 (particularly section 18) provides for the removal of academic and administrative officers and staff of the University, grants the University power to set up administrative panels to investigate misconduct and met out disciplinary actions against erring staff. The Court of Appeal in Raji v. UniIlorin (2007) 15 NWLR (Pt.1057) pg. 259, stated that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for such purpose. See Edet v. Chief of Air Staff (1994) 2 NWLR (Pt.324) 41 at 59; Saba v. NC.A.T.C. Zaria (1991) 5 NWLR (Pt.192) 388 at 418. In the case of Arinze v. F.B.N. Ltd (2004) 12 NWLR (Pt.888) P.663 the Supreme Court held that in case of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. The decision of the Court of Appeal, in Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012( 2015 All FWLR (Pt. 772) 1765 @ 1786, 1796 CA) is instructive on this. In following the position of the Supreme Court, the Court of Appeal held that:

I agree with the finding of the learned trial judge that the Appellant was duly confronted with the accusation made against him and given the opportunity to explain by telling his own side of the story but his explanation was not considered satisfactory by the Disciplinary Committee who recommended his dismissal to the 1st Respondent, hence his complaint that he was given fair hearing cannot stand. In the case of Arinze v. First Bank of Nigeria Ltd (2004) 12 NWLR (Pt.888) 663. It was held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See also Olatubosun v. Niser (1988) 3 NWLR (PT.80) 25 and Yusuf v. Union Bank Of Nigeria Ltd (1996) 6 NWLR (PT.457) 632. Or (1996) SCNJ 201 at 241 – 215 where the Apex Court per Wali JSC pointed out that “It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is gross misconduct involving dishonesty bordering on criminality ….. to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge ….. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.” See also Nwobi v. Acb Ltd (1995) 6 NWLR (PT 404) 658 and National Judicial Council v. Senlong (2010) LPELR (4582) CA.” Per OSEJI, J.C.A. (Pp. 39-40, paras. B-D

In Haruna Gyang & Anor v. Commissioner of Police, Lagos State & Ors (2013) LPELR-21893(SC), the Supreme Court in reviewing the requirements on administrative bodies stated per Kekere-Ekun JSC that:

The modern concept, which however commends itself to us is that the duty placed on such a body is to act fairly in all such cases…. As Lord Parker, Lord Chief Justice of England has aptly put it in Re H.K. (an Infant) (1967) 2 QB 617 at p.630, … “that is not, as I see it a question of acting or being required to act judicially, but of being required to act fairly.” See also: Dr. A.O. Falomo V. Lagos State Public Service Commission (1977) ALL NLR 102: (1977) 5 SC 32.” Per KEKERE-EKUN, J.S.C (Pp.24-25,paras.D-B)

Also, in Opene v. NJC & Ors. (2011) LPELR-4795(CA), the Court discussing the issue of administrative tribunal’s competence to investigate allegations tainted with crime stated:

I have failed to see where the Supreme Court reached a conclusion in Denloye’s case that the tribunal had no power to investigate and find the allegation against the accused proved. On the contrary this is what the Supreme Court said about the investigative power of the tribunal:-

“We must point out for the benefit of the tribunal concerned that like any other tribunal of this nature, it is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline……..

It is of the utmost importance that the enquiry be conducted in accordance with the principles of natural justice.

See also the case of Arinze v. F.B.N. Ltd (2004) 12 NWLR (Pt.888)663 where WALI JSC held that

It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality … to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge.

It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.”’ Per ONU, J.S.C (P. 11, paras. A-E)

Based on the cases referred to above, I find that the 1^st Defendant had the powers to set up the investigative panels for the purposes of determining issues relating to the falsification of results by its staffs.

The second issue raised by Claimant is whether the Defendants complied with the requirement of fair hearing as enshrined in Section 36(1) of the 1999 Constitution before the Claimant was dismissed from the service of the 1^st Defendant.

It is Claimant’s contention that Defendants, apart from not being constitutionally empowered to investigate the allegations of falsification of result, had also not given the Claimant fair hearing. Claimant relied on the terms of reference of the last panel, which recommended his dismissal, to allege lack of fair hearing. It is his contention, that the terms of reference already adjudged the culpability of the Claimant. Claimant contends that the proceedings of the panel violated the principles of fair hearing under section 36 of the 1999 Constitution and section 18 of the University of Lagos Act by:

Failure to give the Claimant details of the allegation of his involvement in the falsification of result with all the particulars.
Failure of the Defendants to confront the Claimant with the evidence against him.
Failure of the panel to allow the Claimant to cross-examine the witnesses who testified against him.
Receiving evidence behind the Claimant.

Defendants challenged Claimants assertion of lack of fair hearing, since it was neither raised in Claimant’s pleadings nor in his evidence. I have gone through Claimant’s pleadings and evidence, and do not find where the issue of lack of fair hearing was asserted or raised. However, assuming I am wrong, and due to the importance of the issue of fair hearing in the adjudicative process universally, and its being a fundamental right, I shall proceed to consider Claimant’s arguments on the issue. As stated by the Court of Apeal in UBA v. Oranuba (2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA):

The right to be heard is such an important radical and protective right that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard”.

In Gboro v. Registered Trustees of Lagos Polo Club & Anor (2016) LPELR-40061(CA), the Court of Appeal held, referring to the Supreme Court decision in INEC V MUSA (2003) 3 NWLR (Pt. 806) 72 that “Fair hearing in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing principles.” Per NIMPAR, J.C.A. (P. 22, Paras. B-D). In the case of Obonganwan Mary Ntewo v. University of Calabar Teaching Hospital & Anor (2013) LPELR-20332(CA), the Court of Appeal, after considering the same conditions alleged by Claimant not to have been met, stated that:

All the above requirements of fair hearing are all necessary and need all be present only where the determination of one’s civil rights and obligations are in issue before a judicial or quasi-judicial proceeding or any other tribunal or body acting judicial. (Kotoye v. Central Bank of Nigeria) (1989) 1 NWLR (Pt. 98) 419 referred to 1. Karibi – Whyte JSC continued to hold that “In domestic tribunal such as this,… neither the Appellant, nor any other person was on trial” See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR Pt. 53 page 678. It was further held that: “the most important consideration is whether the person likely to be affected by the investigation was given an opportunity to state his case, and answering if he can, any allegations which concerned him” Per NDUKWE-ANYANWU, J.C.A (Pp. 18-20, paras. G-C) – :

A consideration of the reports of the proceedings of the 4 panels (Exhibits C6, C7, C8 and C9) set up to investigate the allegation of falsification of result reveal that Claimant was given opportunity to state his case before all the panels. My finding is that, he was afforded opportunity to state his position, in relation to the investigation; and finally, before the 4^th Panel, to respond to the direct allegation. There was no doubt that Claimant was aware of the substance of the investigations, and he was given the opportunity to explain by telling his own side of the story before the Panels. It was based on the Reports of the three prior Panels before whom the Claimant had made representations, that the 4^th Panel wrote to the Claimant to inform him of the allegations against him. Claimant was again provided with an opportunity to respond. I do not therefore find that Claimant was not given fair hearing.

As held in the case of Arinze v. First Bank of Nigeria Ltd (supra):“in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself” I am of the view that that was substantially done in this case.

Finally, the Claimant raised the issue whether in all the circumstances of this case, there was bias or likelihood of bias against the Claimant by the Defendants contrary to section 36(1) and (4) of the 1999 Constitution,

Bias has been held to mean generally, that instinct which causes the mind to incline towards a particular object or course. See Womiloju v. Anibire (2010) 42 NSCQR (PT.2) 878. The test is objective and not subjective. That is, what right minded persons who are aware of the circumstances of facts of the case would say. See Akoh v.S Abuh (1988) 3 NWLR (PT 85) 696.” Per OSEJI, J.C.A. (P. 41, paras. B-D)

It is my view that if this objective test of bias is to apply in this case, Claimant would have apprehended and raised it, either earlier during the investigations, or later at the time of filing this action. Nowhere is the issue of bias mentioned by the Claimant, until in the final written address. I do not find the existence of any fact or evidence that could lead to a conclusion of bias, except if Counsel’s arguments were to be treated as evidence which should not be, because, addresses are not designed to replace evidence. By the Rules of this Court, it is also required that where it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any persons, it shall be sufficient to allege the same as a fact, even, without need to set out the circumstances from which they are inferred – Order 30 Rule 17. I do not find that to have been done in this case. See Ayanwale v. Odusami (2011) LPELR-8143(SC) and C.C.C.T & C.S. Ltd v. Ekpo (2008) All FWLR (Pt. 418) 198 at 205, P. 221 paras. G – H (SC). There is no part of Claimant’s case indicting the report on grounds of bias. However, and assuming I am wrong in finding that Claimant failed to raise the issue of bias in his evidence, I hereby consider the allegations of bias by Claimant.

Claimant relied on the terms of reference of the 4^th Panel as suggestive of bias in that it is conclusive in its tone. The said terms of reference are as follows:

To evaluate the previous panel report and identify the level of involvement of the above named members of staff in the falsification of marks in the Department of Science and Technology Education, Faculty of Education.
To ascertain the culpability of the above named members of staff

iii. To make appropriate recommendation on the above and report to senate.

In my view, the entire process of investigation, by all the Panels were geared towards determining the involvement and/or culpability of members of staff of the Department in question, and to make appropriate recommendation. I do not see how it is suggestive of a pre-meditated motive or of bias. The ‘evaluation, ascertainment of culpability and recommendation’, can go either way; either a finding of culpability or a finding of non-culpability. It has been held that any Party alleging the breach of Fair Hearing has the burden to prove the breach, and he must do so in the light of the facts and circumstances leading to the alleged breach. This is because the facts only, determine acts which constitute non-compliance with the principles of Fair Hearing. I have not seen such facts suggestive of bias or likelihood of bias. See Nicholas Ukachukwu v. Peoples Democratic Party & Ors33 (2014) 17 NWLR PT 1435 @ 146.

On whether the findings, conclusion and recommendation of the Panel with respect to the Claimant as contained in Exhibit C9 are perverse and unreasonable? And, if the answer is yes, then are the actions purportedly taken on Exhibit C9 by the 2^nd to 5^th Defendants culminating in the dismissal of the Claimant from the service of the 1^st Defendant within the contemplation of Section 18 of the University of Lagos Act; I have considered the Reports of the Panels called into question, and whether based on them, the result of the 4^th Panel could be considered to be perverse and unreasonable. The Court of Appeal in Obiorah v. FRN (2016) LPELR-40965(CA) defined reasonable to mean “Fair, proper or moderate under the circumstances” at page 1293 of the Black’s Law Dictionary, 8th Edition. Further see Rinco Construction Co. v. Veepee Ind. Ltd (2005) 9 NWLR (Pt.929) 85; (2005) 3 – 4 SC 1; (2005) LPELR – 2949 (SC) 15. The Supreme Court defined reasonable doubt in Abeke v. State (2007) ALL FWLR (Pt. 366) 644 at 659, Paras. E – F (SC).as “founded on reason which is rational, devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative.”

The Court of Appeal in Obajimi v. Adediji (2008) 3 NWLR (Pt. 1073) 1 at P. 19, paras. C – D defined ‘perverse conclusion’ as a conclusion that does not flow from its correct and subsisting finding arrived at from the pleadings of and evidence led by the parties. A conclusion is perverse, when it runs counter to findings – Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106.

I have considered Claimant’s argument that the conclusion of the 4^th Panel does not flow from the findings of the 1^st – 3^rd Panels. Exhibit C8 is the Report of Investigation Panel of Prof. Azenabor which was the 1^st panel (dated December 2014) set up to investigate allegation of falsification of students’ marks amendment of results. The Prof. Azenabor Panel (1^st Panel) found that both Dr. A. Ogunleye and Mr Yewande Raphael Olufemi admitted results from Mathematics and chemistry department were fake. It further found that:

The Ag. Head of Department of the Science and Technology Education, Dr. A Ogunleye and Wahab, A B’s course adviser, Mr. Yewande, Raphael Olufemi both failed to produce the original results compiled on behalf of Wahab AB to effect changes in his results in spite of persistent calls and requests by the panel
Fourteen (14) course that is 35 units were falsified in respect of Wahab to effect amendment of result
The falsification was plotted in the time of Dr. G O Esiobu the then Ag. Head of Department of Science and Techology Education, instrumented by the then course adviser Dr. Blessing Adeoye who nurtured it and passed it on to the current course adviser, Mr. Yewade, Rapheal Olufemi who in turn presented it to the current Ag. Head of Department, Dr. A Ogunleye.

See Exhibit C8 – Paragraph 6.0 (4, 5, 6 & 7).

The Panel thereafter recommended that:

7.0 RECOMMENDATION

Management may wish to further investigate the following:

(c) Dr Blessing Adeoye and Mr Yewande Raphael Olufemi the course advisers who variously worked with the Ag. Heads of Department. There is a prima facie evidence of their involvement in the falsification of students mark-sheet to effect amendment of results BCOS.

Exhibit C7 is Prof. Amund’s Investigative Panel Report (2^nd Panel) dated 18^th March 2015. This Panel recommended that “…the naivety displayed by Dr Raphael Yewande should also receive appropriate reprimand from the relevant authorities since ignorance is no excuse.

Exhibit C6 is the Report of Panel of Investigation headed by Prof. Ilori (3^rd Panel dated May 2015) which recommended, after finding that Claimant was negligent and culpable, that “appropriate steps should be taken by management to address the culpability

I have considered the submissions supporting the allegation of perversion and un-reasonability of the conclusions drawn by the 4^th Panel from the 1^st three Panels proceedings and recommendations, and find that the conclusions made by the panel cannot be considered perverse and unreasonable in the circumstances.

Therefore, having already found that the 1^st Defendant could set up bodies to investigate the actions of its employees without first waiting for criminal prosecution by the Courts; having also found no evidence of breach of fair hearing and of bias, and there being no finding that the procedure contemplated by exhibits C1, C2, and C3 (and by extension, the University of Lagos Act) were breached, I find no basis to make the declaration sought in Relief 1.

Relief 2 seeks a declaration that the Claimant is still in the service of the 1^st Defendant. This relief is dependent on the finding with respect to relief 1. Having found that the Claimant is not entitled to Relief one, Relief two fails too. Flowing from this, Relief 3 also fails.

Relief 4 seeks for a declaration that the purported termination of the Claimant’s appointment with the 1^st Defendant based on the report of the panel which was comprised of the 6^th to 11^th Defendants and headed by the 6^th Defendant negates the purpose and intention of the provision of Section 18 of the University of Lagos Act.

The purpose and intention of the section 18 of the University of Lagos Act can only be gleaned from the provision itself. It provides as follows:

18(1) If it appears to the council that there are reasons for believing that the deputy vice- chancellor, the provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall –

(a) give notice of those reasons to the person in question;

(b) make arrangements —

(i) for a joint committee of the council and the senate to investigate the matter, where it relates to the deputy vice-chancellor, the provost of a college, or the registrar, and to report on it to the council, or

(ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the university, and to report on it to the senate and to the council; and

(c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.

and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council.

(2) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use his best endeavour to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.

(3) If it appears-

(a) in the case of vice-chancellor, to the council;

(b) in the case of the deputy vice-chancellor, the provost of a college or any other person employed as mentioned in section (1) of this section, to the vice-chancellor,

that the person in question should be removed from his office or employment on either of the grounds mentioned in the said subsection (1), the council or, as the case may be, the vice-chancellor may by a notice signed on the directions of the council or by the vice-chancellor, prohibit him from exercising the functions of his office or employment with a view to his removal; and on exercising his powers under this subsection the vice-chancellor shall forthwith refer the case to the council, and the council shall give such directions in the matter as it thinks proper.

The University of Lagos Act empowers the 4^th Defendant to take disciplinary actions against any erring employee of the 1^st Defendant. In doing that however, there must be strict adherence to the requirements of fair hearing. It is therefore required that:

The act of investigation be commenced by a decision of the Council;
Where it appears to it that a staff should be removed for misconduct or for

inability to perform the functions of his office or employment;

The Council shall give notice of those reasons to the person in question;
Arrange for a committee of the senate to investigate the matter, and to report on it to the Senate and to the Council; and
Afford the person opportunity of being heard by the Panel.
Remove the person if satisfied that the person should be removed by an instrument in writing signed on the directions of the Council.

From the evidence before this Court, as presented by the Claimant, I find that by exhibit C9, (1.0 Introduction) it was Council that requested Senate to set up a panel to investigate Claimant, amongst others, for alleged falsification of students’ marks for amendment of results in the Department of Science and Technology Education, Faculty of Education.

Exhibit C3 (chapter 1, paragraph 4) defines ‘misconduct’ to mean:

Misconduct means general misconduct to the prejudice of the good name of the University and/or of discipline and the proper administration of the business of the University, and, without prejudice to the generality of this definition includes, corruption, dishonesty, drunkenness in the course of duty, false claims against the University or any of its constituent parts, insubordination, divided loyalty, negligence, falsification and suppression of records and conviction for a criminal offence other than traffic or boating offences, absence without leave from duty for two consecutive or more nights without satisfactory reason, disobedience of any order issued by any legally constituted authority of the University, failure to appear or to answer questions satisfactorily in any investigations before any person or body designated by the University or any of its constituent bodies for the purpose of investigating any matter provided for in or arising out of any of these Regulations.

Claimant admitted that from the above meaning of misconduct, there is no doubt that falsification of result amounts to misconduct but argues that being also a crime it requires to be prosecuted before an employer can dismiss or discipline an employee on account of it. This issue has already been determined.

It is on the phrase, “where it appears”, that Claimant seems to hinge his arguments that the conclusion of the 4^th Panel was unreasonable and perverse, on the ground that it did not flow from the recommendations of the 1^stthree Panels. I also find the case of University of Lagos v. Uche (2008) 52 WRN 72 cited by Claimant very instructive in determining the issue of the reasonableness of the perception of the 4^th Panel, of the commission of the misconduct of ‘falsification of results.’. The Claimant in his final address had argued that the fact that “Nobody whether a student or non-student from his department or any other department within the 1^st Defendant’s community or even outside its community testified before any of the panels that he was in any way involved in the falsification of any student’s result”, the conclusion by the Panel that “There is enough evidence that he was involved in the falsification of results of students in the Department of Science and Technology Education”, should be found to be unreasonable and perverse, and therefore, not enough to lead to the ‘appearing to the Council’. On this phrase, the Claimant presented the ruling of the Court of Appeal in University of Lagos v. Uche (2008) 52 WRN 72 at page 101, per NWODO JCA that:

The words “if it appears” to the Council or Vice Chancellor whether the Deputy Vice Chancellor, Provost or any other person employed as a member of academic or administrative staff of the University is to be removed from his office on ground of misconduct or inability to perform the functions of his office or employment imports some element of discretion on the part of Council with the limitation not to consider extraneous matters which ought not to arise in holding a view. Thus the phrase suggests subjectiveness though in reality requires exercise of some objectiveness. In effect the view taken should be reasonable in the light of facts. The reason is obvious in the assessment by Council or Vice Chancellor for “it to appear”, that there is need to suspend”. The view must be based on some reasons. At that stage it does not matter if the reason is credible or not but the reasons must be fair and founded on some obvious practice or rules of the office which is fundamental to the administration of the institution.

I find that the Panel did provide reasons for its conclusions. For example, Exhibit 9 (p. 23).

Dr. R. O. Yewande prepared the request for amendment of results in respect of Wahab, Afeez Babatunde and dated 31^st July, 2014, and forwarded it through Dr. Ayodele Ogunleye (HOD, Department of Science and Technology Education) to the Director, Academic Affairs.
Dr. Yewande relied on verbal complaints from A. B. Wahab that he had passed 14 courses which were not reflected on the broadsheet and he took up the investigation.
Dr. Yewande did not see the original mark sheets before processing the alterations for A. B. Wahab but relied on photocopies.
Dr. Raphael Yewande had been Course Adviser from 2010/2011 to 2013/2014 and should be aware of the procedure for amendment of results.
He is particularly culpable in the presentation of request for amendment of results for Wahab, Afeez Babatunde without following due process.

Though argued to be extraneous to the investigation, I do not see how these issues are extraneous to the investigation on falsification of result.

Further on the requirements of S. 18 of the University of Lagos Act, the requirement of notice was admittedly given to Claimant as per his evidence, and exhibit C9, being reports of Panels set up, and that Claimant had opportunity to present his case before these Panels. See exhibits C6, C7, C8 and C9.

In the same cited case of University of Lagos v. Uche (supra) NWODO JCA further held, while considering the same provision under consideration in this case that:

It is settled principle of law that an appellate Court will not interfere with a discretionary order of a trial Court merely because it would have exercised the discretion differently, thus for the appellate Court to decide on whether the discretion was wrongly or rightly exercised the consideration of the Court must be clear and pronounced.

In considering the argument of Claimant that the evidence before the Panels could not reasonably lead to the decision to dismiss, I have considered the reports of the various Panels, and do not find it to be objectively unreasonable for the panel to reach the conclusion it did. Judging from the Reliefs sought, it does appear to me that what the Court has been called to do by those Reliefs, is principally concerned with the manner by which the decision being challenged was reached – Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. The unfettered judicial discretion of the Court is only exercised when University Council failed to carry out the statute & tort procedure set out for removal. See Olaniyan v. University of Lagos (1985) 2 NWLR SC 599. Therefore, not finding any evidence of violation of the procedure stated in S. 18 of the University of Lagos Act, I decline to make the Order sought in Relief 4. Reliefs 5, 6, 7, 8, 9 and 11 are subsumed in the finding under Relief 4 and therefore are declined too.

Relief 10 seeks for an order mandating the 1^st to 5^th Defendant to forthwith release to the Claimant the letter of confirmation of his appointment and promotion. In his evidence, Claimant stated that at the Faculty Board meeting of 17^th October 2015, the Dean informed the meeting that he (Claimant) and some other members of the Faculty had been promoted, and confirmed. I have also seen the requirements for confirmation and promotion as provided in exhibit C3. Exhibit C14 is the Minutes of the Faculty Board meeting of 17/10/15 referred to by Claimant, where the Dean informed the meeting of his promotion and confirmation. The relevant portion of that exhibit states:

8.00 STAFF PROMOTION AND CONFIRMATION

The Dean informed the Board of Staff whose recommendations for promotion and confirmation have been approved by the Central Appointments and Promotion Board. The Staff include:

(7) Dr. Raphael Oluyemi Yewande – Upgraded from Assistant Lecturer to Lecturer II and also confirmed.

The Claimant in his evidence also stated that:

I have meticulously served the 1^st Defendant. The 3^rd Defendant in its meeting of 14^th October 2015 considered my appointment together with that of few other members of staff of the 1^st Defendant as worthy of confirmation and then recommended the confirmation of the appointments to the 4^th Defendant. The 4^th Defendant in its meeting of the 29^th October, 2016 approved the confirmation of my appointment and promotion from an Assistant lecturer to Lecturer II. I can recognize the reports of the 3^rd and 4^th Defendant meeting held on 14^th October, 2015 and 29^th October 2015 respectively if they are shown to me.

During cross examination, Claimant stated that:

My appointment was confirmed on the 29/10/15 by Council.

From the above evidence of the Claimant, it was the Dean who informed the Faculty Board of the approval of Claimant’s confirmation and promotion by the Appointments and Promotion Board. The Minutes of that ‘Board’ meeting was not tendered. The date of the said meeting of the Appointments and Promotions Board meeting was not stated, nor any further descriptions of that meeting given. The Claimant also stated that the Senate (3^rd Defendant) in its meeting held on 14/10/15 recommended to the 4^th Defendant (The Council) that his appointment be confirmed and also that he be promoted. The minutes of this meeting was supposedly marked exhibit C13. Going through the exhibits, I found no meeting of 14/10/15. On 15th^th January 2019, scheduled for judgment, the Court by Order 38 Rule 30 of the Rules of this Court, sought clarification on the true identity of exhibit C13. On 17^th January 2019, both Counsel clarified that it was an error, as no meeting held on 14/10/15; rather the meeting held on 28^th October 2015. That was the document marked as exhibit C13 upon which Claimant relies to assert that 3^rd Defendant recommended to 4^th Defendant that his appointment be confirmed and he be promoted.

Upon closer scrutiny of Exhibit 13, I find that the only reference to the Claimant is in paragraph 5506 referring to matters arising from the minutes of 30/9/15 on the ‘Report of the investigation panel on the alleged falsification of students’ marks for amendment of results in the department of Science & Technology Education’. The Senate is shown in that meeting to have considered the report of the Prof. Oyekunle’s panel wherein the Claimant was recommended for dismissal.

The Claimant also stated that the 4^th Defendant (Council) in its meeting of 29/10/15 approved his confirmation and promotion. I again took a close look at exhibit C15, which is the Minutes of the Council held on the 29/10/15 to find the asserted approval. What it has is rather, the approval of Claimant’s dismissal.

What I find in all this is that the documents relied on by Claimant to prove his promotion and confirmation rather prove his dismissal. It would have been helpful if the meeting of the Appointments and Promotions Board was tendered and the content and context of their recommendations considered. This Court cannot rely on exhibit C14, without more, especially in the light of contradicting evidence presented by Claimant himself, to grant relief 10. Claimant’s argument that the Dean’s information at the Faculty Board meeting should be taken as admission against the Defendants, loses weight by the fact that the Dean is not a party to this action, and there is no proof that he has capacity to convey such information to the Claimant and thereby engage the responsibility of the Defendants. I find no argument suggestive of that. The contradiction with respect to the confirmation of the said acts in exhibits C13 and C14, make it worse.

In applying the principles laid down in Ondo State University v. Dr. Folayan (Supra), with respect to length of probation of academic staff, it would be found that Claimant’s employment has not lapsed, as argued by Defendant; rather, that it continued, up to the time of dismissal, to be one on probation. This I arrived at, by applying the argument in Ondo State University v. Folayan (Supra) that after 3 years without confirmation, termination, and there being no evidence that Defendant considered the appointment as having lapsed; and applying section 12 (vi) of Exhibit C3, as was done in Ondo State University v. Dr. Folayan (Supra) (Supra), the conclusion will be that the Claimant continued to be on probation. It therefore means that without evidence of termination, confirmation or lapse, the status of Claimant’s appointment was still one on probation.

Though the Defendant led no evidence in their defence in relation to this case, it is the law that judgment would only be given to the Claimant on the strength of his case, not on the absence or weakness of the defence – Balogun v. Labiran (1988) NWLR (Pt.80) 66. As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

Also in the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA), the Court of Appeal held that:

It is quite elementary that no Court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all Courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.

I find therefore that, after the expiration of the 3 years probationary period, the Claimant’s appointment having not been confirmed or terminated, it could not have lapsed, based on the evidence of his continued performance of his duties. Also, just as in Ondo State University (supra), and in the light of section 12 (vi) which provides for the possibility of extension of the probationary period to extend up to six years, and the Minutes of the Faculty meeting of 17/10/2015, Claimant’s employment had continued on a probationary basis. This is without prejudice to the finding that Exhibit C14 alone cannot be regarded as sufficient proof of Defendant’s confirmation and promotion of the Claimant.

What I find in /all these is that Claimant has not proved that he was in fact promoted or confirmed, for the Court to begin to consider if it can make the order sought, for the issuance of letters of confirmation and promotion. The entire action therefore fails and is hereby dismissed.

Judgment is entered accordingly.

I make no order as to cost.

……………………………………

Hon. Justice Elizabeth A. OJI PhD