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National Industrial Court

Dr. Olatunde Folaranmi Adebayo -VS-Federal University of TECHNOLOGY,MINNA & ors

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IN THE NATIONAL INDUSTRIAL COURTOF NIGERIA

IN THE MINNA JUDICIAL DIVISION,

HOLDEN AT MINNA

BEFORE HIS LORDSHIP, HONORABLE JUSTICE K.D. DAMULAK

THIS 7TH DAY OF NOVEMBER 2019

 

SUIT NO.: NICN/MN/03/2019

BETWEEN:

  1. OLATUNDE FOLARANMI ADEDAYO ……………………………… CLAIMANT

AND

1.FEDERAL UNIVERSITY OF TECHNOLOGY,MINNA

2.THE GOVERNING COUNCIL,FEDERAL UNIVERSITY

OF TECHNOLOGY, MINNA

3.THE VICE CHANCELLOR, FEDERAL UNIVERSITY

OF TECHNOLOGY, MINNA

4.THE REGISTRAR,FEDERAL UNIVERSITY

OF TECHNOLOGY, MINNA                                                         …………DEFENDANTS

REPRESENTATIONS:

Daniel Omakor, Esq. with Blessing Akpoke, Esq. and Eustace Aroh, Esq. – for the claimant

Musa Sulaiman, Esq. with Anthony Orifunmishe, Esq. and Anma Chris Uche, Esq. – for the defendants.

 

1.0  INTRODUCTION:

This case challenges the punishment for an alleged negligence of duty meted out on the claimant. The claimant filed his originating process incorporating his statement of material facts , a list of witnesses, list of documents to be relied upon and copies thereof on 15/3/2019. The claimant seeks the following reliefs:

  1. An order of court declaring that the claimant was never charged for misconduct by any authority or person within the 1st defendant and no laid down procedure for such was followed.
  2. An order of court declaring the decisions/punishments contained in the letters of 8th February, 2018 and 31st July, 2018 as unjust, illegal, null and void having not been reached in accordance with the provisions of the Conditions of Service for Senior Staff of the 1st defendant.
  3. An order declaring that the defendants have breached the Conditions of Service of Senior Staff of Federal University of Technology, Minna Revised in 2016.
  4. An order of the Court setting aside the proceedings and decisions of the 2nd defendant at its 128th (Special) Meeting held on Monday 29th January, 2018 and that of its 131st (Regular) Meeting held on Wednesday 18th July, 2018 with respect to the claimant.
  5. An order setting aside the punishment against the claimant as contained in the letters of 8th February, 2018 and 31st July, 2018.
  6. An order of the court restraining the defendants from denying the claimant any benefit/privilege accruing to him.
  7. An order of court restraining the defendants from dismissing the claimant from the service of the 1st defendant.
  8. An order of court directing the defendants to pay the claimant the balance of his salaries on CONUASS 5 Step 4 and other entitlements accruing to him.
  9. General damages in the sum of N100, 000, 000.00 (one hundred million naira).
  10. N5, 000, 000.00 (five million naira) as cost of litigation.
  11. 10 % interest each month from the date of the judgment and or orders of this Honorable Court to the date of compliance.

The defendants filed a preliminary objection and a written address on the 25th of March, 2019. Thereafter, a joined statement of defence and other accompanying documents which were deemed filed for the defendants through a motion for extension of time on the 30th of May, 2019.

2.0  FACTS OF THE CASE:

The claimant is an academic staff of the 1st defendant at its Department of Architecture. He was the Deputy Dean of the School of Environmental Technology and also the representative of the School in the Post Graduate Board of the 1st defendant.  In May 2016, a PhD student was accused of plagiarism in his thesis. The claimant was alleged to have knowledge of this but nonetheless did nothing to stop the defence examination of the student, nor did he inform the Post Graduate Board or the management of the 1st defendant.  Two disciplinary committees were set up to investigate the matter, but none found the claimant guilty of any involvement in the alleged plagiarism. Notwithstanding this, the defendants went ahead to punish the claimant by dropping his salary by two steps for negligence of duty. This prompted the present action. The claimant has been dismissed from the service of the defendants by a letter dated 10/5/2019 for leaving the service in serve to serve in the technical Aids Corp in Rwanda without permission.

 

3.0  CASE OF THE CLAIMANT:

The claimant testified as CW 1 in line with his pleadings as follows:

On 30th May, 2016 I was called by one Professor Mustapha Zubairu of the department of Urban and Regional Planning of the 1st defendant to deliver some documents which is alleged to be a comparison of the thesis of a PhD student, one Mr. Olateju Mukaila Ademola and one of his supervisor’s work (Dr. N.T.A. Abdulrazak- co-supervisor) which alleged plagiarism. Out of courtesy to Professor Mustapha Zubairu I agreed to run the errand and take the document to one Professor O.O. Morenikeji who is the major supervisor of the PhD student.

The PhD student, Prof. Mustapha Zubairu, Prof. O.O. Morenikeji and Dr. N.T.A. Abdulrazak are all of the Urban and Regional Planning Department while I am of the Department of Architecture. I am not in the supervisory team of the PhD student. The 1st defendant then set up a Committee chaired by Prof.  A.O. Osunde of the Dept. of Soil and Land Management to investigate the role played by some individuals in the allegation of plagiarism against Mr. Olateju Mukaila Ademola. The Prof. A.O. Osunde committee carried out its assignment and submitted a report to the 4th defendant for all the other defendants. The report is dated 16th June, 2017.

The report of Prof. A.O. Osunde’s Committee did not find me culpable of any involvement in the case of plagiarism. No recommendation was also made against me. Subsequently, without rejecting or setting aside the Prof. A.O. Osunde Committee’s report, the 2nd defendant set up a Joint Council/Senate Committee to further investigate the case of the roles played by some individuals in the allegation of plagiarism. The Joint Council/Senate Committee which was chaired by Hon. Agoda John Halims O. OFR did further investigation into the issue of plagiarism and considered the roles played by various individuals and also submitted its report dated 26th January, 2018. The report did not also find me culpable with respect to the issue of plagiarism.

Despite the fact that both Committees did not find me culpable, involved or guilty of any kind of connivance, concealing or assisting in anyway the issue of plagiarism, the 1st defendant through the 4th defendant issued a letter to me dated 8th February, 2018 stating that I was found to have neglected to perform the expectations of my office as Deputy Dean of School of Environmental Technology (negligence of duty). The letter further conveyed to me a drop in my salary from CONUASS 5 Step 4 to CONUASS 5 Step 2. The drop in my salary took immediate effect. Upon receiving this letter, I in line with the Conditions of Service of Senior Staff of the 1st defendant appealed against the disciplinary action meted on me on the issue of plagiarism through a letter dated 15th February, 2018 addressed to the Pro-Chancellor/Chairman of the Governing Council (2nd defendant). I also wrote a forwarding letter to the 4th defendant through the Head of the Department of Architecture and through the Dean, School of Environmental Technology. I received a letter from the office of the 4th defendant dated 26th February, 2018 informing me that my appeal to the Governing Council (2nd defendant) has been received and same will be considered in early April, 2018. On the 4th day of May, 2018 the 4th defendant wrote a letter to me informing me that my letter of appeal has been forwarded to the 2nd defendant and that I am expected again to appear before the Joint Council/Senate Committee whose decision I was appealing against.

By a letter dated 31st July, 2018 the 3rd defendant on behalf of all the defendants wrote to me that the 2nd defendant in considering my appeal against the decision contained in the letter dated 8th February, 2018 found me culpable of negligence, complicity for having knowledge of the case of plagiarism against Mr. Olateju Mukaila Ademola and failed to block his Turn-It-In account. Without any fresh evidence against me, the defendants instead of vacating the punishment conveyed in their letter of 8th February, 2018 varied and increased same.

There was no allegation of misconduct leveled against me by any individual or body prior to and warranting the defendants to punish me as contained in the letters of 8th February and 31st July, 2018. There was no preliminary investigation conducted by the Head of the Department of Architecture and no report was submitted to the Dean of School of Environmental Technology alleging any act of misconduct against me. There was no committee set up by the Dean of Environmental Technology to the 3rd defendant about any investigation and report of misconduct against me. The 3rd defendant never directed the 4th to intimate me of any allegation of misconduct nor requested me to give reason(s) why disciplinary actions should not be taken against me. No fair hearing as provided in the Conditions of Service of the 1st defendant was accorded me by the defendant to enable me respond appropriately. The defendants grossly neglected and breached the provisions of the Conditions of Service of the 1st defendant and no Staff Disciplinary Committee was set up by the defendants for any formal disciplinary hearing against me. The Committees that were set up by the defendants were with respect to the allegation of plagiarism against a PhD student Mr. Olateju Mukaila Ademola and not against me. The 3rd defendant never referred any allegation of misconduct leveled against me to the Staff disciplinary Committee to consider and decide if the allegation is proven and what disciplinary sanction is appropriate. The 3rd defendant did not report to the 2nd defendant any recommendations that I be removed from office on any ground(s) of misconduct or disciplined with appropriate punishment.  There was no report of any Staff Disciplinary Committee presented to the 2nd defendant by the 4th defendant upon which the 4th defendant’s letter of 8th February, 2018 and 31st July, 2018 written to me was based.

Upon my appeal against the decision as contained in the letter of 8th February, 2018, some members of the Joint Counsel\Senate Committee that considered my appeal were also part of the previous Committee whose decision I appealed against having prior knowledge and involvement in the case.

I was employed by the 1st defendant on 25th July, 2005 as Lecturer II and my appointment was confirmed on 25th July, 2007. I have been due for promotion since October, 2017 as my last promotion was on 1st October, 2014 but same was and has been withheld by the defendants without any just cause. I have been appraised and while my other colleagues and contemporaries were promoted, I was not promoted. I know as a fact that I am being punished over an allegation that was never leveled against me. The members of the student’s supervisory team who in one way or the other were involved in the issue of the plagiarism have been punished. Some of the staff who were deeply involved in the case of plagiarism were given lesser punishment than the one given to me while some were not given any punishment at all.

I know as of fact that as a result of my appeal against the unjust punishment meted on me over the issue of plagiarism against the PhD student, the defendants have denied me all benefits and privileges accruing to me and have threatened to terminate my appointment as a staff of the 1st defendant on any reason whatsoever. The defendants considered my appeal against the disciplinary action they gave me as an affront against their authority. I know as of fact that neither the Committee chaired by Professor A.O. Osunde nor the Joint Council/Senate Committee chaired by Hon. Agoda John Halims OFR found me guilty, culpable or even slightly involved in the case of plagiarism. I know as a fact that student submit their works (thesis for Turn-It-In without the notice or help of the Turn-It-In Officer. The role of the Turn-It-In Officer is to sign the Turn-It-In certificate after the student’s work has attained the acceptable percentage of comparison. In the case of the PhD student Mr. Olateju Ademola Mukaila, I did not sign the Turn-It-In certificate.

I know as a fact that the defendants did not follow all the laid down procedures as provided by the Conditions of Service for Senior Staff and other extant laws of the 1st defendant in passing the verdict punishing me over the case of plagiarism. I know as a fact that the procedures adopted by the defendants against me are fraught with irregularities in the entire process that led to my punishment for no just cause by the defendants. The Conditions of Service of Senior Staff of Federal University of Technology, Minna was not followed. The Committee/Panel that sat and decided my appeal against Joint Council/Senate punishment meted on me was not competent to sit over the matter. I know as a fact that some members of the Joint Council/Senate Committee had prior involvement and knowledge with the case.

Under cross examination, the claimant testified as follows:

The reduction in my salary grade is one of my grievances. It was communicated to me in February 2018 by exhibit OFA 1. The reduction in my salary took effect in February 2018. The reason in the letter for the punishment was negligence of duty. I am familiar with the condition of service relating to discipline. One of the misconduct in the rules is negligence of duty. In May 2018, I left the University to Rwanda. The University did not accuse me of absence without permission. I was not given a query for going to Rwanda without permission. The University has terminated my appointment as at now on the same reason of leaving to Rwanda without permission.

 The plagiarism issue arose in May 2016 when I was Deputy Dean, School of Environmental Technology. One of my duties as deputy dean was to report events that happen in the 1st defendant as it affects my office. The School of Environmental Technology supervises the Department of Urban and Regional Planning. I appeared before Prof. Osunde Committee. I also appeared before the Joint Council Senate. Exhibits OFA 11 and OFA 12 are the committee reports. I told the Committees what I know about the plagiarism cases. The mandate of the two committees was to investigate and recommend punishments. One of the condition for promotion is approval by the Promotion Committee. Promotion is also subject to vacancies. The Council of the University has the final say on staff discipline. The Council takes its decisions from reports of disciplinary committees.

CW1 was reexamined and he stated thus: my appointment was terminated by a letter dated 10/5/2019 email and DHL to me in Rwanda during the pendency of this suit.

The following documents were tendered and admitted in evidence:

  1. Letter dated 8/2/2018- OFA 1
  2. Letter dated 26/2/2018- OFA 2
  3. Letter dated 4/5/2018- OFA 3
  4. Letter dated 10/5/2018- OFA 4
  5. Letter dated 17/5/2018- OFA 5
  6. Letter dated 31/7/2018- OFA 6
  7. Letter dated 3/11/2017- OFA 7
  8. Letter dated 31/10/2014- OFA 8
  9. Letter dated 17/12/2018- OFA 9
  10. Condition of Service of Senior Staff of the 1st defendant revised in 2016.
  11. Report dated 16/6/2017- OFA 11
  12. Report dated 26/1/2018- OFA 12
  13. Letter dated 15/2/2019- OFA 13
  14. Forwarding letter and appeal OFA 14A and B
  15. Letter for leave of absence dated 17/5/2018- OFA 15
  16. Letter and attached letter from Director of Technical Aid Corps dated 17/5/2018- OFA 16A and 16B.
  17. Pay slips Jan-May 2018- OFA 17A-17E.
  18. Letter dated 23/11/2017 forwarding his publications and CV for assessment for Associate Professor- OFA 18
  19. Letter and attached presentation of appeal dated 18/5/2018- OFA 19A and OFA 19B.

 

4.0  CASE OF THE DEFENDANTS:

Danladi Mallam, the Principal Assistant Registrar of the 1st defendant, testified as DW1 for the defendants in line with the statement of defence as follows:

Sometimes in May, 2016, one Mr. Olateju Mukaila Ademola, a PhD student in the Department of Urban and Regional Planning, was discovered to have plagiarized the thesis of a lecturer in the 1st defendant, Dr. N.T.A. Abdulrazack, and it was this plagiarized work that the PhD student submitted for his exit defence examination which took place on 31st May, 2016. Before the exit defence examination of the PhD student, the claimant and some other lecturers of the 1st defendant were aware the PhD student had plagiarized the thesis of Dr. N.T.A. Abdulrazack but they did not take any step or action to stop the external examination of the student from going on or inform the management of the 1st defendant of the plagiarism. The claimant, as the representative of the School of Environmental Technology on the Post Graduate Board of the 1st defendant, also failed to inform the Board that the PhD student had plagiarized. The claimant became aware of the plagiarism case involving the PhD student on 29th May, 2016, being a date for the external defence examination of the student, when he was shown documents by Prof. Zubaru, containing evidence of the extent of the plagiarism of the work of Dr. N.T.A. Abdulrazack done by the PhD student. It was also the claimant, on the eve of the external examination that informed Prof. Morenikeji, the major supervisor of the PhD student, that the student was involved in plagiarism. The claimant also submitted documents of the extent of plagiarism he obtained from Prof. Zubaru to Prof. Morenikeji. On the day of the external defence examination, the claimant and all other staff who were aware that the thesis the student presented for his external defence examination was plagiarized did not stop the examination from taking place but allowed the examination to go on. As a result, the student went on with the examination with a plagiarized thesis. On the day of the external examination of the student, the claimant was in the meeting of the supervisory team of the examination held before the commencement of the examination where the plagiarism issue was discussed. Notwithstanding the fact that the supervisory team, including the claimant, were aware that the student was involved in plagiarism and it was the plagiarized thesis he submitted for the examination, they allowed the examination to hold. As the Deputy Dean of the School of Environmental Technology and also the representative of the School in the Post Graduate Board, it was the responsibility of the claimant to inform the management of the 1st defendant or the Post Graduate Board of the 1st defendant immediately it came to his knowledge that the PhD student was involved in plagiarism but he failed to perform the duties required of his office, as a result of the inaction of the claimant, the student took an external examination with a plagiarized thesis.

After the external examination, a petition was written to the 2nd defendant alleging that the thesis submitted by the PhD student for his external defence examination was plagiarized but he was allowed to take the external defence examination on the plagiarized thesis with the connivance with the lecturers of the 1st defendant. Upon receiving the petition, the 2nd defendant directed that 3rd defendant to institute a disciplinary investigation into the matter. Accordingly, the 3rd defendant set up a disciplinary committee to investigate the role played by staff of the 1st defendant in the plagiarism case and recommend appropriate punishment. The Committee was set up in November 2016 and it was headed by Prof. Osunde.  The Committee gave notice of the investigation and the subject of the investigation to the claimant and all the staff involved in the case and invited them to the hearing. The claimant appeared at the hearing and defended himself.

I have seen the report of the Committee dated 16th June, 2017. From the evidence given by the claimant before the Committee, the claimant:

  1. Admitted he was aware the student was involved in plagiarism on the eve of the external defence examination. He said he was shown documents to that effect by Prof. Zubaru on 30th May, 2016.
  2. Said he was in the meeting of the supervisory team held before the commencement of the examination where the plagiarism issue was discussed and he took minutes of the meeting.

iii.              Was of the opinion that the evidence of plagiarism against the student was overwhelming.

In its report, Prof. Osunde Committee found that the claimant participated in the plagiarism case but did not recommend him for any punishment. This non-recommendation of punishment for staff investigated in the case was specific to the claimant alone. The report of Prof. Osunde Disciplinary Committee was submitted to the 2nd defendant but after considering the report and its recommendations, the 2nd defendant decided to constitute a Joint Council/Senate Committee to further investigate the roles played by staff of the 1st defendant in the plagiarism case and to recommend appropriate punishment among other terms of reference. This Committee was set up in December 2017. The 2nd defendant need not nor is there any law that requires the 2nd defendant to first set aside or reject the report of the Prof. Osunde Committee before setting up the Joint Council/Senate Committee. One of the staff investigated and interviewed by the Joint Council/Senate Committee was the claimant. This Committee gave notice of the investigation and the subject of the investigation to the claimant and invited him to the hearing. The claimant appeared at the hearing and defended himself. The evidence available to the Committee show that the claimant was aware of the plagiarism case before the external examination took place. In his representation before the Committee, the claimant said inter alia:

  1. The case of plagiarism was raised on the day of the examination but the examination was allowed to go on.
  2. The student was not officially informed that he plagiarized until over a month after the external examination when he was invited to appear before a panel.

iii.              The case of plagiarism should have been brought forward immediately but it was not brought forward until more than 1 month after the student must have graduated.

The Committee found that the PhD student was involved in plagiarism but the supervisory team and senior members of the department who had knowledge of the plagiarism were negligent in their duties in handling the plagiarism case. The Committee recommended actions to be taken on some of the indicted staff but did not make any recommendation with regards to the claimant. I have seen the report of the Joint Council/Senate Committee dated January 2018.

The allegations of the claimant that Prof. Osunde Committee and the Joint Council/Senate Committee were set up to investigate the allegation of plagiarism against the PhD student and not for the claimant are not correct. The terms of reference of the Committees shows clearly that the Committees were set up as disciplinary Committees for staff of the 1st defendant involved in the plagiarism. That was why the Committees were instructed to recommend punishment in line with the Conditions of Service of the University. The claimant was one of the staff that played a role in the plagiarism case and he was one of the staff included in the disciplinary investigation.

In the 128th meeting of the 2nd defendant held on 29th January 2018, it considered the reports of the two Committees and found therein that the claimant-

  1. Failed to perform the duties of his office as Deputy Dean of the School of Environmental Technology.
  2. Failed to enforce the Rules of the Post Graduate School being the Post Graduate representative of the School.

iii.              Allowed the external examination to hold despite having knowledge that the PhD student was involved in plagiarism.

On the basis of these facts, the 2nd defendant found that the claimant committed the misconduct of negligence of duty. The punishment for the misconduct of negligence of duty in the Condition of Service is termination of employment or retirement. The 2nd defendant however did not think the claimant should be retired or terminated on account of the misconduct. Accordingly, the 2nd defendant punished the claimant by merely dropping his salary by two steps. The decision of the 2nd defendant was communicated to the claimant in a letter dated 8th February 2018.

I know that the 2nd defendant is the body with statutory power to punish academic, administrative or professional staff of the 1st defendant for misconducts. In the exercise of its disciplinary powers, the 2nd defendant-

  1.  May or may not accept the recommendations of its disciplinary committee. The 2nd defendant can also decide to increase or reduce punishment recommended by the disciplinary committee.
  2. After considering the reports of the investigation of disciplinary committee, take disciplinary action it deems necessary against staff of the 1st defendant found to have committed misconduct. Accordingly, the 2nd defendant may impose a punishment where none was recommended by the disciplinary committee.

By the disciplinary powers of the 2nd defendant, the fact that the Committees did not recommend the claimant for punishment did not preclude the 2nd defendant from imposing a disciplinary punishment on the claimant where it finds in the reports that the claimant committed an infraction amounting to misconduct under the Condition of Service. Under the Conditions of Service of the 1st defendant, it is not necessary that an allegation of misconduct must be made against a staff by an individual to the staff’s head of Department before a disciplinary action can be taken against the staff. Under the Condition of Service, where the 2nd defendant is of the view or believes that a staff has acted in a way amounting to misconduct, a disciplinary action can be commenced against the staff. This was what happened in the plagiarism case when, the 2nd defendant, believing that the claimant and other staff committed misconduct in their involvement in the plagiarism case, directed a disciplinary investigation into the matter. The disciplinary procedure outlined by the claimant in paragraphs 22, 23, 24, 25 29 and 30 of his depositions which he alleged was not followed in his disciplinary action did not apply or come into play in view of the circumstances which called for the investigation into the roles played by staff in the plagiarism case. The petition on the plagiarism case went directly to the management of the 1st defendant and not the claimant’s Head of Department. Accordingly, no allegation of misconduct was made against the claimant to his Head of Department which would have necessitated the disciplinary procedure mentioned by him in these paragraphs to be followed. The disciplinary procedure that took place was the one initiated by the 2nd defendant in exercise of its statutory disciplinary powers.

Upon the receipt of the petition alleging connivance of the staff of the 1st defendant in the plagiarism case, the 2nd defendant in exercise of its statutory power to investigate or try academic or administrative staff of the 1st defendant for misconduct, directed the constitution of a disciplinary committee to investigate the roles played by staff of the 1st defendant in the plagiarism case and prescribe penalty for the misconducts. Accordingly, Prof. Osunde Committee and the Joint Council/Senate Committee were set up respectively to investigate the allegations against the claimant and other staff. The claimant was given fair hearing in the disciplinary action. Both the Prof. Osunde Committee and the Joint Council/Senate Committee are disciplinary committees set up at the instance of the 2nd defendant. The claimant was given notice of the investigation and the subject matter of the investigation by the committees. The claimant was invited to the proceedings of the committees and he was afforded all opportunity to be heard and the claimant made representations to the Committees. All the staff found involved in the plagiarism case were punished in accordance with the level of their involvement, including the claimant whose punishment was communicated to him in letters dated 8th February 2018 and 31st July 2018.

The disciplinary action meted on the claimant in respect of his involvement in the plagiarism case has been completed and the outcome of his appeal has been communicated to him. There is no plan or intention to terminate his employment in respect of that case. By a letter dated 15Th February 2018, the claimant appealed against the disciplinary action to the 2nd defendant. By letters dated 4th and 10th May 2018, the claimant was informed that a joint council/senate committee has been set up to consider his appeal and he was invited to appear before the committee to be heard on his appeal in a meeting slated to hold 17th May 2018. The meeting could not hold on that date however and by a letter to the claimant dated 17th May 2018, the claimant was informed has been rescheduled for 21st May 2018.

Before the new date fixed for his appeal to be heard, the claimant, by a letter dated 17th May 2018 but received by the 3rd defendant on 21st May 2018, applied for leave of absence for 2 years to enable him serve in the Nigerian Technical Aid Corp program as a Volunteer Senior Lecturer in the University of Rwanda. Without waiting for the response of the defendants to his request, the claimant left his duty post on 20th May 2018 to Rwanda.

The defendants nonetheless considered the claimant’s request for leave of absence but refused same on the ground that the disciplinary action against the claimant’s is not concluded yet in view of his pending appeal against the disciplinary action. The defendants communicated their position to the claimant in a letter dated 25th May 2018.

Since 20/5/2018, the claimant has been absent from duty without permission and did not attend the appeal committee proceedings. Consequently, the appeal committee simply reviewed the previous reports on the case, closed the appeal and submitted its report to the 2nd defendant with recommendations. The appeal committee is authorized in the Condition of Service to review the decisions of the disciplinary committee. The 2nd defendant considered the report of the appeal committee and accepted its recommendations. Consequently, by a letter dated 31st July 2018, the claimant was informed that his appeal failed and he is found guilty of negligence and complicity in the plagiarism case. The 2nd defendant also maintained its decision of two steps drop in the claimant’s salary in addition to barring the claimant from holding academic leadership position in the University for 2 years. The appeal committee did not take fresh evidence in the claimant’s appeal. More so that the claimant who appealed refused to appear to be heard in his appeal. There was no new evidence presented before the appeal committee which would warrant the 2nd defendant to vacate the disciplinary punishment given to the claimant. Rather, the punishment of the claimant was reviewed on the basis of facts contained in the reports of the various committees and in accordance with the conditions of service. The disciplinary decision of the 2nd defendant communicated to the claimant in letters dated 8th February 2018 and 31st July 2018 was taken on the basis of the reports of the disciplinary committees of Prof. Osunde and the Joint Council/Senate Committee and the report of the appeal committee.

As a registry staff of the 1st defendant, I know for a fact that in the service of the 1st defendant, promotion is not given as a matter of course. The Condition of Service prescribes certain requirements for promotion of staff and by the terms of the Condition of Service, the claimant was not qualified for promotion in 2017.

Under cross examination, DW1 testified that:

I served as a member of two committees that looked at the case of plagiarism. The first committee was management committee. The second was joint council/senate committee. The name of the chairman of the management committee is Prof. A.O. Osunde. The council committee chairman was Hon. J.H.O. Agoda. I was a member of the committee that sat on the appeal of the claimant against the punishment given to him. I was the assistant secretary of that committee. The members of the council committee were also the members of the appeal committee. The report of the committee of the joint senate council committee did not recommend any punishment for the claiamant. The committee found him culpable of negligence of duty but did not recommend any sanction. The negligence of the claimant was that he failed to report the case of plagiarism to management. The names of the PhD oral external examiners were:

  1. Prof. Sanusi Y.A. – Dean of School of environmental technology.
  2. Prof. O.O. Morenikeji
  3. Dr. N.T.A. Abdulrazak
  4. Dr. Dalim Musa
  5. The claimant.

I do not know if claimant was a member by virtue of being deputy dean school of environmental technology. I am in the registry. This is the office responsible for communicating promotions or otherwise to staff.  I confirm that the defendant wrote the letter dated 17/12/2018 to the claimant. I do not know when the letter was received by whoever.

The following documents were tendered and but two were opposed to by the claimant counsel on the ground that no evidence of the documents on the claimant. They were marked as exhibits DM1, DM2 tendered  and DM3 tendered and ruling reserved till judgment. The documents are;

  1. Petition dated 1/12/2016          – Exhibit DM1
  2. Letter 25th May, 2018              –  Exhibit DM2 tendered.
  3. Letter dated 17th May, 2018     – Exhibit DM3 tendered.

 

5.0  CLAIMANT’S REPLY:

The defendant particularly raised two new facts in the statement of defence. These are the facts relating to; 1.The absence and non-participation of the claimant at the hearing of the appeal pane as he was away in Rwanda. 2. The dismissal of the claimant for absconment from duty as he went for Technical Aids Corp in Rwanda without permission. This surely necessitated a reply. The reply of the claimant to these are as follows;

  1. The appeal committee set up asked me to submit written presentation in six copies which I promptly submitted to Danladi Mallam on 16th May, 2018 who also acknowledged same. On 23rd May, 2018, the secretary of the appeal panel communicated with me on phone while I was in Rwanda on conference call and several questions were asked by the panel which I answered. It was not true therefore that the appeal panel simply reviewed the previous reports on the case, closed the appeal and submitted its report.  The claimant however used the opportunity of the reply to set out his statement of facts in fuller details, more emphatically and forcefully. This is not the purpose of a reply and is not allowable.
  2. My letter dated 17th  May, 2018 was minuted by both the Head of Department and Dean of my School on same day while the 3rd and 4th defendant received the letter on 18th May, 2018 and not 21st May, 2018. The urgency of my redeployment to the University of Rwanda was communicated to the 3rd defendant by the letter from the Directorate of Technical Aid Corps (DTAC) which letter the 3rd defendant never replied.  The letter of 25th May, 2018 was not delivered to me and I was not facing any disciplinary committee as at the time I made my application dated 17th May, 2018.

Other averments and evidence in reply are as follows;

I was not constitutionally empowered to stop the examination as I have no role to play being the deputy Dean. The Dean of the School (SET) was present at the examination venue as the Chairman of the examination panel while the Post Graduate School Representative Prof. Baba was also there at the examination. I as the Deputy Dean is not a member of the examination panel as the Dean was present. I therefore have no power to say anything to stop the examination. I was not a member of the supervisory team or the examination panel and what Prof. Morenikeji told the examination panel was that I received some documents alleging plagiarism but the panel did not have the luxury of time to compare or analyze the documents with the student’s thesis.

The 2nd defendant cannot act in vacuum or arbitrarily but upon the findings, report and recommendations of any disciplinary committee it sets up and the procedures as provided by the Conditions of Service of Senior Staff of Federal University of Technology, Minna 2016. The 2nd defendant by the Conditions of Service of Senior Staff of the Federal University of Technology Minna, 2016 does not have the discretionary power to accept or refuse to accept the report recommendations of its disciplinary committee, increase or reduce punishment recommended by its disciplinary committee or impose any punishment where same was not recommended by its disciplinary committee.

The decision of the 2nd defendant contained in the letters of 8th May, 2018 were not based on the reports of the Committees of both Prof. A.O. Osunde and Joint Council/Senate which Committees did not indict or made out any punishment against me. The Committees of Prof. A.O. Osunde and the Joint Council/Senate are not disciplinary committees as provided for by the conditions of service. 

My action is not statute barred as by the letter of 31st July, 2018 which superseded the letter of 8th February, 2018, I appealed against the decision by my letters dated 3rd October, 2018 addressed to the 2nd and 4th defendants and the 2nd defendant sat over my appeal during its 133rd meeting held on 13th December, 2018 and its decision on the appeal was communicated to me via a letter from the 4th defendant dated 17th December, 2018 but received by my proxy on 17th January, 2019. Thereafter filed this suit on 15th March,  2019 within the prescribed period of the Public Officers Protection Act. By the Conditions of Service of the 1st defendant, I was to exhaust all the internal machineries for resolving conflict before taking any other step outside the school this was what I did by appealing the decision of council as contained in their letter of 31st July, 2018 and the 2nd defendant’s final decision was communicated to me in their letter dated 17th December, 2018.

 

6.0  PRELIMINARY OBJECTION AND CLAIMANT’S REPLY ON POINTS OF LAW:

The defendants filed a preliminary objection on the 25th of March, 2019. The grounds for the objection are:

  1. The suit is statute barred by the effect of section 2(a) of the Public Officers Protection Act.
  2. The suit is not commenced by way of any originating process prescribed by the National Industrial Court of Nigeria (Civil Procedure Rules) 2017.
  3. The Honorable Court lacks jurisdiction to entertain the claimant’s suit.

The issues are argued together as follows:

The case of the claimant is statute barred because it was not commenced within 3 months from the date the cause of action arose. See section 2(a) of the Public Officers’ Protection Act. The cause of action arose on the 31st of July, 2018 when the defendants informed the claimant about the drop in his salary, while this suit was commenced on the 15th of March 2019, thus there is a gap of over 7 months contrary to the provision of the above Act. see Ogboru v. SPDC (NIG) LTD (2005) 17 NWLR (PT. 955) 596\ at pg. 620. Counsel further asserts that this suit falls under the above provision because the act complained about, disciplinary punishment, was done in the exercise of the defendants’ official or public duties. Also, that this provision covers not only natural persons, but also the defendants, public institutions established by law. See Ibrahim v. JSC Kaduna State (1998|) 14 NWLR (Pt. 584) 1 at 36

It is equally the contention of the counsel that the claimant did not use an originating process known to the rules of this Court, as such the suit is incompetent. See Order 3 Rule 1 of NICN Rules 2017. Even if it was a complaint that was filed, it falls short of the requirement for the following reasons: the process is not titled a complaint; the process did not state categorically the reliefs sought as per the requirement of Order 3 Rule 8 of the NICN Rules; the originating process and the statement of fact are one and the same, contrary to the requirement that a complaint shall be accompanied by a statement of fact, see Order 3 of the Court’s Rules.

Three issues for determination were raised by the claimant in the reply and they are argued thus:

  1. Whether the preliminary objection is competent and can be entertained by this court?

Learned counsel argues that the defendants cannot allege breach of rules of Court by the claimant as they are guilty of same and ‘he who comes to equity must come with clean hands.’ See Ibrahim v. Adekunle (2013) All FWLR (pt. 667) 785 @ 794. The defendants filed the memorandum of appearance with only a preliminary objection, which is contrary to Order 15 Rule 1 and Order 30 Rule 2 of the NICN Rules that mandate that a preliminary objection shall be filed together with the statement of defence. See Ameachi v. INEC (2008) All FWLR (pt. 407) at 39 and F.U.T.A. v. ASUU (2013) All FWLR (pt.707) pg. 678 at 683

Counsel further argues that assuming but not conceding that the originating process was not properly filed, it does not vitiate the proceeding. See Udo v. R.T.B.C.S. (2013) All FWLR (Pt. 692) 1771, 1774 at ratio 3.

  1. Whether the suit is statute barred as alleged by the defendants/applicants:

It is contended that the limitation period of 3 months only starts to count after the appeal period in section 7.4 of the Conditions of Service of Senior Staff of Federal University of Technology, Minna has been exhausted. The Counsel asserts that that is when the cause of action arose. Counting from then to when the suit was instituted, it is not up to 3 months. Thus the suit is not statute barred.

7.0  DEFENDANTS’ FINAL WRITTEN ADDRESS

Two issues were formulated for determination and are argued as follows:

  1. Whether the claimant’s suit is not statute barred?

On this issue, Counsel adopts the argument already canvassed in the preliminary objection to avoid repetition.

  1. Whether from the facts and evidence presented before the Court, the claimant’s suit ought to be dismissed for having not been proved?

Under this, Counsel argues the salient complaints of the claimant against the disciplinary punishment which include:

  1. That there was no allegation of misconduct made against him by anybody to warrant the punishment:

On this, Counsel posits that the allegation against the claimant that led to the punishment is that as the Deputy Dean of the School of Environmental Technology he neglected to perform his duties by not halting the external examination of the PhD student accused of plagiarism and failed to report same to the management of the 1st defendant. This negligence is tantamount to misconduct- see section 6.1(vi) of Exhibit OFA 10. As such, after the 2nd defendant received the petition (Exhibit DM 1) alleging these wrongdoings against the claimant and other staff, it went ahead and set up an investigative committee.

  1. That no staff disciplinary committee was set up to investigate him on any allegation of misconduct and that the two committees set up were in respect of the allegation of plagiarism against the student and not for him:

Counsel argues that the two committees were set up in order to investigate the complicity of the staff of the 1st defendant and recommend appropriate punishment and not as alleged by the claimant to investigate plagiarism by the PhD student.  This can be gathered from the terms of reference given to the two committees in paragraph 3.1 of Exhibit OFA 11 and terms (ii) and (iii) of Exhibit OFA 12, notwithstanding the nomenclature of investigative committees used instead of disciplinary committees.

iii.              That the two committees before which he appeared did not find him culpable and did not recommend him for any punishment yet he was punished by two steps drop in his salary:

Counsel argues that by paragraphs 9-10 of exhibit OFA 11 and paragraphs 17-19 of exhibits OFA 12, the claimant has been fully indicted of negligence by the two committees. However, no punishment was recommended. For this, Counsel submits that by section 15(1) of the FUT Act recommendation of punishment is not a condition precedent to the 2nd defendant taking appropriate disciplinary action. What the section requires is for the 2nd defendant to consider the investigating report and impose appropriate punishment. This is so because the 2nd defendant is the body with the ultimate disciplinary powers and not the committee, see section 15 of the FUT Act. For this, Counsel concludes that the 2nd defendant can follow the recommendations of the committee or vice versa; or give a higher or lesser punishment.

  1. That the procedure for discipline in the condition of service was not followed:

Counsel submits that section 15(1) of the FUT Act provides for an alternative disciplinary procedure. Under this, where the 2nd defendant becomes aware of an alleged wrongdoing, it will give notice of the allegation to the staff, investigate the allegation and give the staff an opportunity to be heard and then take decision after considering the report of the investigating committee. In this case, the 2nd defendant upon receiving the petition decided to invoke this procedure.

  1. That he was not given fair hearing:

Counsel submits that although no particulars are given by the claimant of the breach of fair hearing, from the reports of the two committees, the claimant has been given an opportunity to explain himself and what he knows about the plagiarism case. This, the counsel argues is sufficient fair hearing.

  1. That some members of the Joint Council/Senate Committee were also members of the appeal committee:

Regarding claimant’s contention that some members of the Joint Council/Senate Committee were also members of the Appeal Committee, Counsel argues that this is yet to be proved as there is no document tendered in evidence showing a list of the members of the appeal committee, nor was there the report of the committee. Besides, the claimant did not appear before the Appeal Committee.

Regarding the testimony of DW1 that he served in both committees, Counsel submits that by sections 7.3 (h), (c) (i) and 7.4 (b) (i) of the Conditions of Service, only members of the Senate and the Council can be members of the Joint Council/Senate Committee and the Appeal Committee. DW 1 only served as a secretary and not a member. Be that as it may, Counsel contends that even if the participation of DW 1 in both committees is taken as membership of both, this does not render nugatory the decision taken by the 2nd defendant in exhibit OFA 1 reached on 8/2/2018. This is because only the decision of the Appeal Committee will be affected by the dual membership and not a decision already taken prior to setting up of the Appeal Committee.

vii.            That upon his appeal without any fresh evidence, his punishment was increased:

The increase complained of is the 2 year ban on holding any academic leadership position. On this, Counsel submits that this is done in line with section 7.4 of the Conditions of Service which empowers an appeal committee to either review or uphold the decision complained about. Where it decides to review the decision, it can either decrease or increase it as has been done in the present case.

viii.         Denial of benefits and threats to terminate employment:

Counsel submits that the claimant did not mention nor give particulars and instances of the benefits that he has been denied since appealing the decision of the 2nd defendant. Thus, this is not proved for lack of evidence to back the allegation.

On alleged threats to terminate the employment of the claimant, counsel posits that exhibit OFA 9 is the defendants’ final statement on the appeal and there is no intent to change that or terminate the appointment on that account. However, Counsel submits that even though the employment of the claimant has been terminated, it is on a different ground- absence from duty without permission.

  1. Denial of promotion:

Counsel posits that although the claimant made a case for non-promotion, no relief was claimed and the Court cannot grant him what he did not seek. Be that as it may, the claimant has not shown that the conditions of promotion have been satisfied as provided for in section 5.1 of the Conditions of Service which are: approval of the Appointment and Promotion Committee; available vacancy; and NUC approved staff structure. Besides, Counsel concludes that no complain was made for the denial of promotion to the Appointments and Promotion Committee through his Head of Department and Dean.

8.0  CLAIMANT’S FINAL WRITTEN ADDRESS:

Two issues were formulated and argued thus:

Counsel responded to the argument of the suit being ultra vires raised by the defendants in line with his argument in the preliminary objection.

  1. Whether the defendants acted in line with the provisions of the Conditions of Service for Senior Staff of the Federal University of Technology, Minna in punishing the claimant through Exhibits OFA 1, OFA 6 and affirmed by OFA 9?

On this issue, Counsel submits that section 7.3 (a) and (b) of Exhibit OFA 10 which provides the laid down disciplinary procedure was not observed by the defendants before meting out the disciplinary punishment. The procedure is that there must first be an allegation of misconduct to the Head of Department who will then cause a preliminary investigation to be done and report to the Dean or Director within one week. The latter would then cause a committee to be set up to further investigate the allegation to determine whether there is a disciplinary case to be answered. This non-compliance negates exhibits OFA 1, OFA 6 and OFA 9 because OFA 10 is a subsidiary legislation made pursuant to FUT Act 2004. See Yemisi v. FIRS (2013) All FWLR (Pt. 693) CA 1992 para H, at pg. 2012-‘the law is settled that where a disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required before such disciplinary action can be properly based or justified.’

Counsel further argues that the above non-compliance violates the claimant’s right to fair hearing because he was never informed nor investigated by his Head of Department nor was he before any Committee set up by his dean.

It is equally the contention of the Counsel that the alleged complaint received by the defendants in Exhibit DM 1 that prompted bypassing section 7.3 (a) and (b) of Exhibit OFA 10 is bogus. This is because the Prof. A.O. Osunde Committee predated Exhibit DM 1, in that the former was set up on 23rd November 2016, while the latter was alleged to have been received in December 2016. Furthermore, Exhibit DM 1 did not mention the claimant in the list nor was there any allegation against him. Not only this, when he was investigated by the 1st and 2nd committee, no disciplinary recommendation was made against him. Going by section 7.3 (f) and (g) when serious misconduct is proved against a person, a recommendation of either removal or appropriate punishment must be made to the 2nd defendant by the 3rd defendant and the former must act on it. Ditto the case at hand.

Finally, Counsel submits that the 2nd defendant acted ultra vires by imposing punishments that are not listed in sections 7.1 and 7.2 of Exhibit OFA 10. This is because of the legal doctrine of ‘Expressio unius est exclusion alterius’. See also S.I. (Nig.) Plc v. U.E.C.C. Ltd (2015) All FWLR (Pt. 801) 1526 at 1534.

  1. Whether from the totality of facts pleaded and evidence adduced before this Honorable Court, the claimant is not entitled to all the claims/reliefs:

Counsel submits that the claimant is entitled to all reliefs sought because the whole proceedings is a nullity for the arguments canvassed in issue 1. Also, the appeal committee is incompetent because it violates section 7.4(c) of Exhibit OFA 10 which requires that the joint committee of the council and senate must have had no prior involvement with the case. It has already been led in evidence by DW 1 that some members served in both committees. See section 122(2) of the Evidence Act 2011. See also Biezan Exclusive Guest House Limited v. Union Homes Savings & Loans Ltd (2011) 7 NWLR (pt. 1246) 246 @ 285, paras. C-D.

9.0  ISSUES FOR DETERMINATION:

Besides the preliminary objection, the issue for determination in my view considering the facts of this case is whether the claimant is entitled o the reliefs sought.

 

  1. COURT DECISION
  2. PRELIMINARY OBJECTION.

The preliminary objection of the defendants is two legged namely;

  1. The claimant did not use an originating process known to the rules of this Court, as such the suit is incompetent. See Order 3 Rule 1 of NICN Rules 2017. Even if it was a complaint that was filed, it falls short of the requirement for the following reasons: the process is not titled a complaint; the process did not state categorically the reliefs sought as per the requirement of Order 3 Rule 8 of the NICN Rules; the originating process and the statement of facts are one and the same, contrary to the requirement that a complaint shall be accompanied by a statement of facts. Order 3 of the Court’s Rules.

In response, learned claimants counsel contended that  assuming but not conceding that the originating process was not properly filed, it does not vitiate the proceeding.

I have taken a close look at the originating process of the claimant and find as follows;

  1. The complaint of the claimant spans from the 1stto 19th pages, stating out the statement of material facts in full from the 3rd to 10th pages.
  2. The reliefs are set out on the 11thpage.
  3. On the 12thpage is boldly written; MEMORANDUM TO BE SUBSRIBED ON THE COMPLAINT.
  4. The complaint was signed by counsel on the 13thpage and his stamp affixed as required by the Rules of this court.

Order 3 Rule 10(b)(ii) and ( c) (i) of the Rules of this Court requires that ;

10.The complaint shall be  formatted as in form1 and  shall contain-

( b) in PART 2 the following information:

(ii) a clear and concise statement of the material facts establishing the cause of the action in chronological order, on which the party relies, which statement shall be sufficiently particularized to enable any opposing party to reply to ;

( c) The  Complaint shall-

(i)  be signed by the party to the proceedings or by such party’ s legal practitioner:

I find that the process filed did not in any way mislead the defendants nor make it impossible for them to respond thereto. The failure to write complaint on the front page does not vitiate the process and the incorporation of the material facts in the complaint is in line with the requirements of the Rules. The failure to file a separately headed statement of material facts does not vitiate the process. The objection on this ground fails.

  1. That the action is statute barred by reason of section 2(a) of the Public Officers’ Protection Act. The cause of action arose on the 31st of July, 2018 when the defendants informed the claimant about the drop in his salary, while this suit was commenced on the 15th of March 2019, thus there is a gap of over 7 months contrary to the provision of the above Act.

In response, claimant contended that the action is not statute barred. By section 7.4 of the Conditions of Service of Senior Staff of Federal University of Technology, Minna, claimant was to exhaust all the internal machineries for resolving conflict before taking any other step outside the school, this was what he did by appealing the decision of council as contained in their letter of 31st July, 2018 and the 2nd defendant’s final decision was communicated to him in their letter dated 17th December, 2018 but received by his proxy on 17th January, 2019. Thereafter he filed this suit on 15th March, 2019 within the prescribed period of the Public Officers Protection Act.

A cause of action is defined in HADO NIGERIA LIMITED & ANOR. V. CHRISBROWN INTERNATIONAL LIMITED & ANOR. (2013) LPELR-21171(CA) where  the court held;

 “It is settled, from the authorities that a cause of action means the factual situation stated by the plaintiff, which if sustained, entitles him to the remedy against the defendant. It is that set of facts which gives the plaintiff the right to sue the defendant. It comprises every fact which is the material to be proved to enable the plaintiff to succeed”.

In this case, going by section 7.4 of the condition of service, all the material facts that gave birth to the cause of action culminated on 17/1/2019 or earliest on 17/12/2018. The filing of this suit on 15/3 2019 is within the specified three months period.

More so, this case arises from an employment contract, it is exempted from the application of the Public Officers Protection Act. This issue has been recently laid to rest by the Supreme Court in the case of N.R.M.A.F.C V JOHNSON (2019)2 NWLR (PART.1656) P.247 AT 270 where Ariwoola J.S.C held as follows;

There is no doubt, a careful reading of the respondent’s claim will show clearly that it is on contract of service. It is now settled law that section 2 of public officers protection law does not apply to cases of contract.

In a consenting judgment, Aka’as J.S.C also held;

“Since the action instituted by the respondents is a contract of employment, the public officers protection law cannot be involved to bar the action undertaken by the plaintiffs/respondents”.

The objection also fails on this ground.

On the whole, the objection is lacking in merit and same is hereby dismissed.

  1. MERIT OF THE CASE.

Two documents were objected to on the ground that they do not have evidence of service on the claimant. The documents were marked as exhibits DM2 tendered and DM3 tendered and ruling reserved till judgment.

I have observed these documents, they are sought to be tendered on the ground that they were served on the claimant. The documents are not acknowledgment copies but photocopies simplicita. There is no evidence on the face of the documents that copies thereof were served on the claimant and there is no evidence of postal service, this means there is no proof of service and the documents cannot be admitted as documents that were served on the claimant.  

These documents are rejected and are to be so marked.

It is pertinent to note that the following facts are agreed upon by the oral and documentary evidence of both parties;

  1. That the panels set up to investigate the claimant were not called staff disciplinary committees but investigative committees.
  2. That members of these committees also sat as members of the appeal committees.
  3. That none of the committees recommended any punishment against the claimant.
  4. That the council used it powers suo motu to punish the claimant because it believes from the reports of the panels that the claimant was culpable.
  5. That the claimant was dismissed from the service of the defendant on 10/5/2019 on a separate issue, abscondment from duty.

The claimant has prayed for an order of court directing the defendants to pay the claimant the balance of his salary on CONUASS 5 STEP 4 and all other entitlements accruing to him. I have read the entire pleadings and evidence, the claimant never stated how much was his salary and how much it was reduced to as a result of the reduction in grade .Claimant never stated the length for which he was short paid by how much and what is the total of the said balance. There is neither pleading nor evidence of the said other entitlements accruing to him. The implication is that no amount can be awarded even if his case succeeds.

Now, there is no challenge to the dismissal. Granted that the dismissal came after the suit is already pending, but in view of the fact that the dismissal in on a separate ground and same is not being challenged, the balance of his salary on CONUASS 5 STEP 4 and all other entitlements accruing to him are not particularized, the question is whether any judgment of this court on the wrongfulness of his earlier punishment on reduction in salary grade level is a live issue and not academic.

In EVANGELIST MRS. HELEN UKPABIO & ANOR. V. NATIONAL FILMS AND VIDEO CENSORS BOARD (2008) LPELR-4129(CA) the court held;

There is no gainsaying that if no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the Court will not entertain it. The law is that it is an essential quality of a suit or an appeal fit to be disposed of by a court that there should exist between the parties a matter in actual controversy which the court undertakes to decide as a living issue. Moreover, a court deals only with live issues and steers clear of those that are academic. But there cannot be said to be a live issues in a litigation if what is presented to the court for a decision, when decided, cannot affect the parties in anyway. Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379; Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710: Tanimola v. Surveys and Mapping Geodata Ltd. (1995) 6 NWLR (Pt. 403) 617; Ogbonna v. President of Federal Republic of Nigeria (1997) 5 NWLR (Pt. 504) 281 at 287.

In AIYELABEGAN KAYODE A. & ANOR v. SALMAN ABDULFATAI & ORS. (2012) LPELR-7874(CA) the court held;
 

“There cannot be said to be live issue in a litigation, if what is presented to the court for a decision, when decided cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started, so that in case of an appeal, the appeal may become academic at the time it is due for hearing.”

See the case of A.G Federation vs ANPP (2004) LRCN 2671 @ 2994. See also Odedo vs INEC (2008) 17 NWLR (pt.1117) 554, where it was held:

“A suit is academic where it merely makes empty sound and of no practical utilitarian value to the plaintiff, even if judgment is given in his favour…”

The questions to answer in this case at this stage are;

  1. What purpose will be served by the judgment in this case in view of the change in the relationship of the parties during the pendency of this case?
  2. Is the demotion of the claimant a live issue anymore when he is no longer an employee?
  3. How will the judgment of this court affect the parties in anyway?
  4. Of  what  practical utilitarian value is it to the plaintiff, even if judgment is given in his favour?

In the view of the court, bearing in mind the facts earlier pointed out above, there is but one answer to all the above questions and it is “None”.

On the whole, I find that the claimant’s case has become academic by reason of changed circumstances since after the litigation started.

This case is hereby struck out.

I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

 

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, MINNA.

 

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