Professor Aloysius Ukachukwa Awuzie -VS- The Governor of Imo

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

DATE: 4^th DECEMBER, 2019 SUIT NO: NICN/OW/51/2017

BETWEEN:

PROFESSOR ALOYSIUS UKACHUKWU AWUZIE ………. CLAIMANT

AND

THE GOVERNOR OF IMO STATE
IMO STATE UNIVERSITY
PROFESSOR VICTORIA ADAOBI OBASI DEFENDANTS

(Vice-Chancellor, Imo State University)

ATTORNEY GENERAL OF IMO STATE

REPRESENTATION:

C.E Onyebukwa and A. O Mark for the Claimant.
I. I. Amadi (Mrs); N.G Nwosu, U.A Uzowuru and U. Iwuchukwu for the 1^st and 4^th Defendants.
I.P. Ananaba (now deceased) for the 2^nd and 3^rd Defendants.

JUDGMENT:

This Claimant was the Vice Chancellor of the Imo State University Owerri, (the 2^nd Defendant herein) until his appointment was terminated on the 17/10/2016 by the 1^st Defendant purportedly acting as the Visitor of the 2^nd Defendant for alleged gross misconducts and abuse of his office particularly with respect to application of the TETFUND/NEEDS Assessment Projects. The 1^st Defendant terminated the Claimant’s appointment upon the recommendation of an ad hoc Committee set up and empaneled by the Governing Council of the 2^nd Defendant. Being aggrieved with the manner of his removal and termination, the Claimant instituted this suit against these Defendants.

The Claimant’s case was commenced by way of a complaint accompanied with other originating processes dated and filed the 28/8/2017 wherein he claims against the Defendants for the following reliefs:

A DECLARATION that the 1^st Defendant’s letter dated 17^th October, 2016 and referenced SG/S.0928/II/X titled TERMINATION OF APPOINTMENT AS VICE CHANCELLOR IMO STATE UNIVERSITY OWERRI is null and void, invalid, illegal and of no consequential effect whatsoever having been issued without complying with the Imo State University Law, 1999 Constitution and other existing legislations and best Labour Law practices.
An order of this Honourable Court setting aside the termination of the appointment of the Claimant as Vice Chancellor, Imo State University, Owerri vide the Letter dated 17^th October, 2016 with reference NO SGI/5.0928/11/X with the caption: Termination of Appointment as Vice Chancellor, Imo State University Owerri which is unlawful, unconstitutional, null and void and of no effect whatsoever having been issued in contravention of the Imo State University Law No.5 of 2004 and Section 36 of the 1999 Constitution (as Amended) and other existing Labour Laws and best practices.
A Declaration that the appointment of the 3^rd Defendant as Vice Chancellor of the Imo State University during the pendency of this suit as well as the appeal challenging the suspension of the Claimant from Office is contemptuous, unlawful, unconstitutional and null and void.
An Order of this Honourable Court reinstating the Claimant to his position as the Vice Chancellor of Imo State University, Owerri in accordance with his Letter of appointment dated February 24, 2013.
An Order of this Honourable Court setting aside the Report of IMSU COUNCIL AD HOC Committee on TETFUND/NEEDS Assessment projects in Imo State University Owerri dated August 2015, the resolution of the University Council on the Report of its Ad Hoc Committee on TETFUND and NEEDS Assessment Projects dated November 3, 2015 and the resultant white paper dated 16^th April, 2016 as it affects the Claimant for being unlawful, unconstitutional, null and void and of no effect whatsoever having been done in contravention of the Imo State University Law No. 5 of 2004 and Section 36 of the 1999 Constitution (as amended) and other existing Labour Laws and best practices.
An order of this honourable Court compelling the Defendants to pay to the Claimant the sum of N76,136,000.00 (Seventy Six Million, One Hundred and Thirty Six Million Naira) only being the Claimant’s outstanding salaries and entitlements as vice Chancellor.
An order of injunction restraining the Defendants by themselves, agents, privies or howsoever described from interfering with the appointment of the Claimant or in any manner withholding any of his salaries or other entitlements as Vice Chancellor of Imo state University Owerri until the Claimant’s tenure as Vice chancellor expires on 14/2/19 or is otherwise lawfully determined.

CLAIMANT’S CASE:

After the exchange of pleadings between the parties’ Counsel, the Claimant’s case was eventually opened on 5/3/2018. The Claimant testified for himself as CW 1. He relied on his deposition of 28/08/2017 and adopted same as his evidence in chief. The Exhibits tendered by CW1 are:

Exhibit C “1” – Letter addressed to Prof. U. A Awuzie (Office of the Secretary to the Government of Imo State) for appointment of Vice Chancellor Imo State University, Owerri. Dated 24/2/2013.
Exhibit C “2” – Letter addressed to Prof. Ukachukwu Aloysius Awuzie (Office of the Secretary to the Government of Imo State) Suspension of Vice Chancellor & Appointment of Acting Vice Chancellor, Imo State University dated 2/6/2015.
Exhibit C “3” – Letter of Termination of Appointment of Prof. Awuzie as Vice Chancellor of Imo State University, Owerri dated 17/10/2016.
Exhibit C “4” – Pre-action notice from C.E Onyebukwa & Co. to the 1^st Defendant dated 29/6/2017.

As a matter of fact, trial first commenced before my learned brothers Anuwe and Arowosegbe, JJ and subsequently before me from the 30/10/2018. The Claimant was cross examined by Counsel to the 1^st and 4^th Defendants (1^st set of Defendants) as well as by the 2^nd and 3^rd Defendants’ (2^nd set of Defendants) on the same day whereupon the Claimant’s case was closed that very day.

2^ND SET OF DEFENDANTS’ CASE:

The 2^nd and 3^rd Defendants opened their joint defense on the 13/11/2018. They presented their witness, Mr. Emeka Ejikonye who testified as DW 1. He adopted his deposition dated 3/4/2018 and relied on same as his testimony. A total of 5 Exhibits were tendered, 3 by him and 2 through him by the Claimant’s Counsel during cross examination on the same day. After which they closed their case on the 9/4/2018.

The Exhibits tendered are outlined below:

Exhibit D 1 – Imo State Government White Paper on the Report of the Imo State University Governing Council’s AD-Hoc Committee dated 13/4/2016;
Exhibit D 2 – Resolution of the University Council on the Report of its Ad-Hoc Committee on TETFUND and NEEDS Assessment projects dated 3/11/2015.
Exhibit D 3 – Imo State of Nigeria Official Gazette dated 1/12/2016.
Exhibit D 4 – Report of IMSU Council and AD-HOC Committee on TETFUND/NEEDS Assessment Projects in Imo State University dated August 2015.
Exhibit DW 5 – Remuneration/Welfare package for Vice – Chancellor and other Principal Officers of the Imo State University dated 20/02/2014.

1^stSET OF DEFENDANTS’ CASE:

The 1^st and 4^th Defendants opened their defence on 24/01/19 by presenting their witness Julia Ukaigwe who testified as DW 2. She adopted her amended deposition dated 23/1/2019 and relied on same as her testimony. She again tendered the already admitted Exhibits D2, D3, D4 and so they were taken as already admitted and marked. She was duly cross examined by the Claimant’s Counsel on the same day after which they closed their case.

Subsequently, Counsel filed their respective final written addresses and adopted same on 29/10/2019 consequent upon which it was adjourned to today for pronouncement of this here judgment.

1^ST SET OF DEFENDANTS’ FINAL ADDRESS AND SUBMISSIONS:

The 1^st and 4^th Defendant’s final written address was filed on 30/04/2019. Within, two issues were raised for determination thus:

Whether this honourable Court has the Jurisdiction to entertain the reliefs of the Claimant?
Whether the termination of the Claimant’s appointment as a vice-Chancellor was contrary to the Imo State University Law No.5 of 2004 and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and therefore Unlawful?

On issue number one, learned Counsel submitted that the Court lacks the Jurisdiction to entertain relief E of the Claimant. He submitted that one of the guidelines for determining the jurisdiction of the Court is that the subject matter of the suit falls within the jurisdiction of the Court. He cited C.B.N V. S.A.P NIG LTD (2005) 3 NWLR (PT.911) PG. 152 RATIO 2 inter alia. Accordingly, in determining the said subject matter of jurisdiction, the Court is enjoined to only consider the writ of summons and the statement of claim filed by the Claimant. See GOVERNOR OF KWARA STATE V. LAFIAGI (2005) 5 NWLR (PT. 917) 139 at 151. It was further submitted that from the principal claim made by the Claimant, he is challenging the powers of the ad hoc Committee set up by the 1^st Defendant to investigate his activities and that of other people in relation to the alleged mismanagement of the TETFUND/NEEDS Assessment projects in Imo State University. He is accordingly also challenging the report of IMSU Council ad hoc Committee on TETFUND/NEEDS Assessment Projects in Imo State University, Owerri dated August, 2015, the resolution of the University Council on the report of its ad hoc Committee on TETFUND and NEEDS Assessment Projects dated 3/11/2015 and the Resultant White Paper dated 16/4/2016 which affected his position as VC. It was further argued that other reliefs sought by the Claimant which relate to the propriety of his termination as the Vice Chancellor of the 2^nd Defendant, his claim for reinstatement back to the said position and his claim for the payment of his alleged outstanding salaries and allowances from the date of his removal to the date on which his appointment should have elapsed, are accordingly ancillary because they flow from the Report of the Committee which is here being sought to be side aside. Learned Counsel submitted that from the evidence before this Court, the Claimant has not established how the issue of determining the power of the Imo State Governor to constitute an ad hoc Committee through the University Council to enquire into the affairs of the Claimant and others with regards to the management of the TETFUND/NEEDS assessment projects in Imo State University and the subsequent White paper report arising therefrom, is Labour related. What the Claimant is asking the Court to do, remarked learned Counsel, is to determine the extent of the powers of the Governor of Imo over the 2^nd Defendant institution as Visitor, and this accordingly, does not fall under the realm of Labour Law regardless of the employment contract between the 2^nd Defendant and the Claimant.

It was further offered as argument that this Court being a creation of Statue, must satisfy itself that the 1999 Constitution expressly granted it jurisdiction to entertain this dispute before it, prior to proceeding to hear and determine the suit. He cited AFRICAN NEWSPAPERS & ORS V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (PT. 6) P. 137, EGHAREBVA V. ERIBO (2010) 9 NWLR (PT. 1199) 411.

Accordingly also, relief number 4 made by the Claimant is outside the jurisdiction of this Court not being a labour related matter as such, this Court cannot entertain same. He therefore urged this court to resolve issue 1 in favour of the 1^st and 4^th Defendants.

On issue number two raised, learned Counsel argued that the termination of the appointment of the Claimant was done in consonance with the Imo State University Law No. 5 of 2004 and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended and urged this Court to hold so. It was argued that the Imo State University Law No. 5 of 2004 under Section 16(1) thereat, makes the 1^st Defendant the Visitor of the 2^nd Defendant institution, the Imo State University, with the powers as enumerated under Subsection 2.

It was further submitted that Section 17 of that Law sets out the instances where the Chancellor, the Pro – Chancellor or the Vice – Chancellor can be removed from office. Section 17 (1) accordingly reads thus:

“If it appears to the Visitor that the Chancellor, Pro Chancellor or Vice-Chancellor shall be removed from office on the ground of misconduct or of inability to perform the functions of his office, or for any other good cause, the Visitor may, by notice in the State Gazette, remove the Chancellor, Pro-Chancellor or Vice Chancellor from office”

He submitted that Claimant’s removal from office was as a result of the gross abuse of his office as the Vice Chancellor of the 2^nd Defendant in the management of the TETFUND/NEEDS Assessment Projects in Imo State University where he awarded inflated contracts to his companies running in to hundreds of Millions of Naira. There is evidence that the Claimant is the owner of ECOSYSTEMS DESIGNS, a Consulting firm that did some consultancy jobs for the 2^nd Defendant in the TETFUND/NEEDS Assessment Projects running into several millions of Naira. Counsel referred to page 48 paragraph 3 of Exhibit D 4 being the report of the ad-hoc Committee. Learned Counsel submitted that there is evidence before this Court that the Claimant through his office, directly engaged in the supply of items to the 2^nd Defendant institution under TETFUND/NEEDS Assessment projects. The Claimant and his Special Assistant also played a role in the erection and furnishing of the Science Laboratory constructed for the 2^nd Defendant institution at a contract fee of 350 Million Naira. Counsel stated further that the Claimant through his Special Assistant, sidelined the Desk Officer and encroached into his responsibilities, involved himself directly in the supply of some Air Conditioners to the ICT building, items which had already been supplied and kept in the store. It was discovered that the Claimant did not declare some TETFUND projects to 2^nd Defendant’s Governing Council. Counsel referred to Exhibits D 2 and D 4.

Furthermore, learned Counsel argued that the termination of the Claimant’s appointment by the 1^st Defendant, was done by virtue of his powers as Visitor pursuant to Section 17 (1) of the Imo State University Law. Accordingly, the Visitor terminated the Claimant’s appointment because of his misconduct. It is alleged that Exhibits D 2 and D 4 contain proof of innumerable gross misconducts by the Claimant which justify the 1^st Defendant to exercise his powers to terminate his appointment in accordance with Section 17 (1) of the Imo State University Law. According to Counsel, the term “misconduct” has been defined in CADBURY NIG. PLC V. ONI (2012) LPELR-19821 (CA) to mean “…a dereliction of duty; unlawful or improper behaviour…”. He relied on the decision in NJC & ORS V. SENLONG & ORS (2010) LPELR-4582(CA), where it was held that “gross misconduct” is any “conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer”. He also cited UZONDU V. UBN PLC (2008) LPELR-4535(CA)

Learned Counsel further argued that the conduct of the Claimant in awarding contracts to companies he has interest in and the mismanagement of awards of contracts resulting in some companies absconding with hundreds of millions of naira paid to them upfront without fulfilling their contractual obligations under his watch as the Chairman of the TETFUND/NEEDS Assessment projects in the University, smacks of great misconduct and dereliction of duty which worked against the deep interest of his employer. The 2^nd Defendant lost a lot of Money through contracts paid for but not executed, supply of items to the institution lower than the number claimed to have been supplied, supply of substandard equipment like photocopiers, failure to disclose some TETFUND projects by the Claimant and many more. His removal by the 1^st Defendant was, therefore, lawful and in tune with Section 17 (1) of the Imo State University Law.

It was further stated that this Claimant was given adequate opportunity to answer the allegations made against him from the evidence before this Court as well as from the deposition made by the DW 2 herein. Accordingly, the Claimant appeared before the ad hoc Committee severally and gave his own version of the issues raised before the Committee. Counsel referred to pages 6 – 13 of the Minutes of the second meeting of Council as contained in Exhibit D 4 and also pages 47 – 51 of the Minutes of the 9^th Meeting of the Council as contained in Exhibit D 4. See also INEC V. Musa (2003) LPELR-24927 (SC) where Tobi, J.S.C accordingly held thus,

“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles”.

Counsel addressed further that the Claimant, having been given opportunity to answer the allegations against him which he extensively utilized, cannot turn around to claim the breach of his right to fair hearing. His removal, therefore, was not in breach of Section 36 of the 1999 Constitution (as amended). Learned Counsel stated on that he who asserts must prove. He relied on Section 135(1) of the Evidence Act and also the case OJUKWU V. OBASANJO (2003) FWLR (PT 182) PG 1766 where the Court held.

“The proof lies upon him who affirms, not upon him who denies since by the nature of things he who denies a fact cannot produce a proof”.

Counsel is convinced that the Claimant failed to prove his removal was done in contravention of the Imo State University Law, the 1999 Constitution and other existing legislations and best Labour practices and, therefore, his reliefs before this honourable Court must fail. Accordingly, the Claimant is not entitled to these claims for payment of his salaries and allowances for the unexpired period of his tenure from June, 2015 to February 2, 2019 having been removed lawfully from office before the end of his tenure in line with Section 17 (1) of the Imo State University Law, 2004.

It is accordingly the evidence of the 2^nd and 3^rd Defendants’ witness who had testified during cross-examination, that the entitlements made by the Claimant could only be paid to a person who completed his tenure as Vice Chancellor of the 2^nd Defendant institution. DW 2 was accordingly never contradicted nor discredited by the Claimant’s Counsel under cross examination. It is accordingly thus a cardinal principal of law that evidence which is neither discredited nor contradicted be deemed admitted and the Court must rely on same — See IVIENAGBOR V. BAZUAYE (1999) 4 NWLR (620) 552 inter alia.

It was submitted further that the Claimant, having been legally terminated from office before the end of his tenure as the Vice-Chancellor of the 2^nd Defendant, is not entitled to any salaries and allowances as claimed by him. Also, his claim for reinstatement as the Vice Chancellor of the 2^nd Defendant has been over taken by the effluxion of time since his tenure would have ordinarily ended by the 2/2/2019. This Court cannot not therefore make an order of reinstatement.

Besides all the above, said Counsel, it is accordingly in evidence that the Claimant resigned his position as the Vice Chancellor of the 2^nd Defendant institution to pursue his political ambition and even participated in the just concluded elections where he vied for the position of Deputy Governor. That it is also not in dispute that the Claimant participated in the Senatorial primaries under the All Progressive Grand Alliance (APGA). Therefore, that having resigned voluntarily from the service of the 2^nd Defendant institution to participate in politics, assuming without conceding that he was still the Vice-Chancellor for the period he was still involved in politics, he would not have been entitled to salaries and other allowances as claimed by him now. The learned I. I. Amadi finally urged this Court to resolve this issue in favour of the 1^st and 4^th Defendants and to dismiss this suit entirely.

2^ND SET OF DEFENDANTS’ FINAL SUBMISSIONS:

The 2^nd set of Defendants’ Counsel’s final written address is dated and filed on the 29/04/2019 wherein their Counsel, I. P. Ananaba (now deceased) raised a lone issue for determination thus: “whether the Termination of Claimant’s appointment followed due process and was therefore lawful”.

It was first offered as submission that in determining the sole issue above, this honourable court must be invited to determine whether the findings contained in Exhibit D 4 were reached in congress with the provisions of the Imo State University Law (No. 5) of 2004 and Section 36 of the 1999 constitution of Nigeria(as amended). Learned Counsel stated that the termination of the Claimant’s appointment was purely based on the recommendations of the ad hoc Committee of the Council of the 2^nd Defendant and the resultant findings were published in a White Paper contained in Exhibits D 1 and D 4 and it is necessary to recall that the said ad hoc Committee was set up at the instance of the Visitor i.e. the 1^st Defendant. It was further submitted that the Claimant alleged that the report of the Council’s ad hoc committee and the resultant white paper are unlawful, null and void having been done in contravention of the Imo State University Law (No. 5) of 2004 and Section 36 of the 1999 Constitution. Accordingly, the Claimant never provided or furnished this Court throughout his evidence with the particular sections of the Imo State University Law No.5 that were purportedly breached.

Counsel submitted on that regard must be had to the provisions of the Imo State University Law No. 5 which contains the relevant provisions for the removal of a Vice Chancellor of the University. Section 17 provides thus:

If it appears to the Visitor that the Chancellor, Pro-Chancellor or Vice Chancellor shall be removed from office on the ground of misconduct or of inability to perform the functions of his office, or for any other good cause, the Visitor may, by notice in the State Gazette, remove the Chancellor, the Pro-Chancellor or the Vice- Chancellor.

Counsel is convinced that the salient provisions are clear and unambiguous. The salient points in this provision are therefore “if it appears to the visitor”; “on grounds of misconduct”; and “for any other good cause”.

It was further submitted that by the above provision, the Governor can decide whenever he feels that the Vice Chancellor has committed any acts of misconduct, to remove him from office. That provision did not leave any room for setting up any panel as the 1^st Defendant did in the instant case which resulted to their findings in Exhibit D 1 and D 4 as such, the constitution of a panel of enquiry was a mere surplusage.

Accordingly therefore, the pertinent question is whether the Claimant committed any act of misconduct to warrant his termination. The answer, it is suggested, should be in the affirmative judging from the findings contained in Exhibits D4 and the resultant White paper.

Learned Ananaba submitted that Exhibit D 4 was introduced in evidence by the Claimant and indeed front loaded and also served on the Defendants. However, during trial, the Claimant deliberately refused to tender the said Exhibit because he knew that the contents would be against him. It was accordingly the 2^nd Defendant’s witness, Mr. T.I Igwe (DW 1) who tendered the said document contrary to the expectations of the Claimant. It was further argued that the findings in Exhibit D 4 establish that the Claimant committed acts of gross misconducts. Counsel referred to page 62 of the last paragraph, of that report i.e. Exhibit D 4, where the ad hoc Committee made reference to the relationship between the Claimant and Eco System Design and the evidence of the award of several contracts to the said Company which purportedly belongs to the Claimant. The Committee had found this to be a clear case of abuse of office.

Learned Counsel stated that the Claimant’s acts, according to the findings in Exhibits D 1 and D 4, amounted to misconducts which could be regarded as “gross” he cited Eze V. Spring Bank PLc (2012) ALL FWLR (PT.609) at 1090, para F-H, where the Supreme Court described misconduct as

“A conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Thus, working against deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee”.

He further submitted that a look at Exhibit D 1, particularly in paragraph 3.20 and 3.21, shows that the Claimant mismanaged funds that were meant to be used to carry out projects for the University. He cited CADBURY NIG. PLC. V. ONI (2013) ALL FWLR (PT.665). Counsel further contented that the termination of Claimant’s appointment was gazetted vide Exhibit D 3, in accordance with the provisions of the Imo State University Law No.5 with particular reference to S.17 (1). It is apt to therefore note that Exhibit D 3 is still valid and subsisting, not having been set aside by any Court of competent jurisdiction, remarked the learned Counsel.

Furthermore, that the question whether the Defendants complied with Section 36 of the 1999 Constitution before terminating the appointment of the Claimant as the Vice Chancellor, must be answered in the affirmative. This is accordingly because it is clear that Section 17(1) of the Imo State University Law which deals with the removal of the Vice Chancellor did not make any provision for an opportunity for fair hearing of the Claimant. However, the Defendants complied with the provisions of the 1999 Constitution strictly. As far as Counsel was concerned, fair hearing within the meaning of Section 36 of the Constitution 1999 means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It encompasses the plenitude of natural justice in the arrow technical sense of the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua as in the broad sense of what is not only right and fair to all concerned but also seems to be so. He cited BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 610) AT 335-336, para C-A.

According to Counsel again, from the pleadings and evidence before the Court, it could be deduced that the Claimant was given fair hearing. Claimant purportedly admitted that he was invited by the committee — See Exhibit D4. It was also admitted by the Claimant that he appeared severally before the Committee and in fact answered questions that were put across to him. It is accordingly true that the Claimant appeared before the said Committee thrice, referring again to the said Exhibit D4. Therefore, for the Claimant to claim in his pleadings that he was not given a fair hearing is accordingly false and misleading. It is settled law that where a witness is shown to have made previous statements inconsistent with the evidence given by him at the trial, such witness should be regarded as unreliable, said learned Counsel. He cited AMUSA V. STATE (2002) 2 NWLR (PT. 750) 73 AT PARA A – C and OLADEJO V. STATE (1987) 3 NWLR (PT 61) 419. He thus argued that the evidence of the Claimant must therefore be disregarded as it is settled law that what the employer simply needs to do is give the employee an opportunity to be heard, which was complied with in the instant case. He cited OSAKWE V. NIGERIAN PAPER MILL LTD (1990) 10 NWLR (PT.568) 1 AT 11.

As to whether the Claimant was dismissed or terminated without being tried by a Court of competent jurisdiction as the Claimant’s Counsel may want to suggest, it was submitted that in a statutory employment, as in a common law employment, the employer can dismiss in all cases of gross misconduct. Accordingly, it is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offenses under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offense before proceeding to discipline the employee under the contract of service or employment. He cited EZE V. SPRING BANK PLC (SUPRA). It was further submitted that arising from the investigation of the Claimant, it was found that he abused his office when he utilized same as the Vice Chancellor to mismanage the funds mapped out for projects in the 2^nd Defendant institution and by using companies which he had vested interests in to award contracts to himself indirectly which were nonetheless not executed. Indeed the above acts are in the realm of misconducts and abuse of office which the University can comfortably look into and the appropriate sanctions meted to the Claimant, iterated the learned Counsel. As such, it was within the jurisdiction of the 2^nd Defendant to inquire into the alleged misconducts. He cited GARBA & ORS V. UNIVERSITY OF MAIDUGURI & ORS (1989) 1 NWLR (PT 18) 550 @609 inter alia. Counsel submitted that the sole issue raised for determination must be resolved in favour of the 2^nd and 3^rd Defendants.

Again he submitted that the Claimant did not prove his claims to the alleged entitlements in paragraph 26 of the Statement of facts. The monies accordingly quoted therein with the grand total are in the realm of special damages which ought to be proved specifically. In his evidence, the Claimant failed to prove those entitlements. He urged this Court to refer to its record of the cross examination of the Claimant on 30/10/2018, by the 2^nd and 3^rd Defendants’ Counsel, when he was asked how much he pays for neighborhood security charges and the Claimant’s reply was that he could not remember. It was therefore submitted that the Claimant’s claims are frivolous and unproven.

Counsel further argued on the issue of reinstatement, that the tenure of the Claimant as the Vice Chancellor elapsed on 13/2/2019. Therefore, by effluxion of time, that relief is spent and incompetent. The issue thus being dead, this Court therefore lacks jurisdiction to grant same. He cited AG FEDERATION V. ANPP (2004) 114 LRCN, 2671 AT 2694 AND ADEPOJU V. YINKA (2012) ALL FWLR (PT 624) 26. Learned Counsel concluded that the Claimant’s termination was lawful as compliance with the law was strictly followed and urged this honourable Court to so find and dismiss the cause.

CLAIMANT’S FINAL SUBMISSIONS:

Claimant’s Final Written Address was filed on 17/05/2019. His Counsel filed two separate written addresses, one in response to 1^st set of Defendants and the other, in response to the 2^nd set of Defendants’ final written addresses. Both written addresses are hereby summarized accordingly.

CLAIMANT’S FINAL WRITTEN ADDRESS IN RESPONSE TO 1^ST AND 4^TH DEFENDANTS’.

In response, the Claimant’s Counsel adopted the two issues raised by 1^st and 4^th Defendants in their final written address, thus:

Whether this honourable Court has the Jurisdiction to entertain the reliefs of the Claimant?
Whether the termination of the Claimant’s appointment as Vice Chancellor was contrary to the Imo State Law No. 5 of 2004 and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and therefore Unlawful.

On issue one, learned Counsel submitted that this Court has the jurisdiction to entertain this suit. In determining the jurisdiction of this Court, one must accordingly look at the Statue establishing it. He referred to Section 254C of the 1999 Constitution which sets out the jurisdiction of the National Industrial Court. He submitted that in his relief E contained in paragraph 28 (E) of the statement of facts, the Claimant seeks this Court to set aside the report of the IMSU COUNCIL AD HOC COMMITTEE on TETFUND/NEEDS Assessment projects in Imo State University Owerri dated August 2015, the Resolution of the University Council on the Report of its Ad Hoc Committee on TETFUND and NEEDS Assessment projects dated November 3, 2015 and the resultant White Paper dated 16^th April, 2016 as it affects the Claimant for being unlawful, unconstitutional, null and void and of no effect whatsoever having been done in contravention of the Imo State University Law No. 5 of 2004 and Section 36 of the 1999 Constitution (as amended) and other existing Labour laws and global best practices. Counsel referred to Section 17 of the NICN Act 2011. He specifically submitted that relief E shows that this Claimant seeks to set aside the findings and resolutions arising from or affecting his appointment as Vice Chancellor of Imo State University which failed to comply with the laws setting up the University and which denied him right to fair hearing as guaranteed by the Constitution. These are issues that relate to or are connected with or arose from Labour or dispute arising from workplace as envisaged by Section 254C of the 1999 Constitution. It accordingly also relates to or is connected to a dispute over the interpretation of Chapter IV of the 1999 Constitution especially as it relates to whether the Claimant was afforded fair hearing before the decisions contained in the aforesaid documents were reached. Counsel further submitted that where the issue of fair hearing or interpretation of Chapter IV of the 1999 Constitution is in issue arising from a labour related matter, the National Industrial Court of Nigeria has undoubted jurisdiction to determine same. He cited S.S.A.U.T.H.R.I.I.A.I V. OLOTU (NO. 2) (2016) 14 NWLR (pt 1531) 8 at 18 where the Court of Appeal affirmed the jurisdiction of this honourable Court in respect of the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to employment, Labour and other matters. He cited Council, Fed Poly., Mubi V.Dingoli (2014) 16 NWLR (pt.1433) 371 at 385.

He argued further that the 1^st and 4^th Defendants misconstrued the essence of the Claimant’s case when they submitted in paragraph 4.05 – 4.07 of their written address that the Claimant is merely challenging the setting up of the ad hoc Committee by the 1^st Defendant. There is no such challenge. The Claimant only seeks to set aside portions of the Report or the White Paper which relates to his appointment as a Vice Chancellor. He therefore urged this Court to discountenance the submissions of the 1^stand 4^th Defendants’ Counsel as they are based on wrong premise and assumptions.

On issue two, learned Counsel submitted that the termination of the Claimant’s appointment as the Vice Chancellor of the 2^nd Defendant is unlawful for 4 major reasons. The first is that the termination did not comply with the provisions of the Imo State University Law, 2004. Section 17 of the Imo State University Law, 2004 accordingly provides the manner in which a Vice Chancellor may be removed. Therefore, the only way a Vice Chancellor can be removed from office lawfully is by a notice published in the State Gazette by the Visitor of the University. In the case of the Claimant, there was no such notice published by the Visitor of the 2^nd Defendant notifying the removal of the Claimant from office. What the Defendants did was to write a mere letter terminating the appointment of the Claimant. The said letter, Exhibit C 3 Dated 17^th October, 2016 states as follows:-

“Termination of Appointment as Vice Chancellor, Imo State University

I wish to refer to my SGI/S.0011/S.3/X of the 22^nd November, 2012, my SGI/0117/X of the 24^th February, 2013 and GH/PL/S.162/IV/5 OF 2^ND June, 2015 and to convey the decision of the Visitor of Imo State University to terminate your appointment as Vice Chancellor of the said University with effect from today”.

The letter was signed by Sir Eche George E.U., Secretary to Government of Imo State.

Counsel believes that the said Exhibit CWC cannot terminate the appointment of the Claimant as Vice Chancellor of Imo State University having regard to the provisions of Section 17 (1) of the Imo State University Law, 2004. As such, the purported decision by the 1^st Defendant as the Visitor of the Imo State University to terminate the Claimant’s appointment as Vice Chancellor of the University which was conveyed in the said letter, cannot lawfully terminate the Claimant’s appointment.

He further submitted that Exhibit D 3, which is a State Gazette as tendered by the 1^st Defendant, did not terminate or determine the tenure of the Claimant lawfully. He said a cursory look at the said document will suggest this fact. Besides, argued learned Counsel, the said Exhibit D 3 was not signed by any person. It is also not a ‘Notice removing the Vice Chancellor from office’ because it was accordingly issued on 1/12/2016 just for the purpose to “notify for general information”. As such, the Claimant was removed from office on 10/10/2016. The Defendants have not produced any State Government Gazette of 10/10/2016 or any other Gazette wherein the Claimant was removed from office as a Vice Chancellor.

He further submitted that the second problem affecting the said Exhibit D 3 is that it was not signed by the Visitor of the 2^nd Defendant or indeed any person. The 1^st Defendant can only remove the Claimant as Vice Chancellor in his capacity as the Visitor of the University. Therefore when the 1^st Defendant is not acting in his capacity as the isitor of the University, he has no powers to terminate the appointment of the Claimant. Having not signed Exhibit D 3 in his capacity as the Visitor therefore, Counsel is convinced that this Court must hold that Exhibit D 3 is not the act of the Visitor of the 2^nd Defendant.

He submitted further that where an Act or Law provides for the means of doing a thing or creating a status, it is not lawful to do the said thing in any other manner. He cited IMONIKHE V. ATTORNEY GENERAL OF BENDEL STATE (1992) 6 NWLR (PT 248) 369 at 413 and UDE V. NWARA (1993) 2 NWLR (PT 278) 638 AT 861 amongst others to buttress this point. Counsel emphasized that noncompliance with the provisions of the Section 17 (1) of the Imo State University Law 2004 by the Defendants indeed renders the removal of the Claimant as unlawful and liable to be set aside.

Moving on, learned Counsel argued that another reason for contending that the termination of the Claimant’s appointment was unlawful is that Section 17 (1) of the Imo State University law makes it mandatory that the Vice Chancellor of Imo State University can only be removed from office on the following grounds:

Misconduct
Inability to perform the functions of the office.
Any other good cause.

Counsel argued that the Claimant’s removal was without reason whatsoever, as the termination letter did not specify any reasons for the Claimant’s termination as VC. Accordingly also, exhibit D 3 did not state any reason for the purported termination of the Claimant’s appointment. It was further contended that 1^st and 4^th Defendants’ submission that the Claimant was removed for gross misconduct is incorrect since the purported removal letter never stated any reasons as he was merely thanked for his services. The 1^st and 4^th Defendants cannot utilize oral evidence to modify or add to the contents of a written document — see Section 128 of the evidence Act, and UNION BANK OF NIGERIA v. OZIGI (1994) 3 NWLR (PT 333) 385 AT 400.

He stressed further that it is clear from the above submissions that the 1^st and 4^th Defendants labored in vain by trying to furnish a reason for the unlawful termination of the Claimant’s appointment. Their evidence as to the reason for the termination of the appointment of the Claimant was accordingly an afterthought and so urged this Court to discountenance same. Learned Counsel impressed on this Court to therefore hold that the termination of the Claimant’s appointment was unlawful on the basis that no reason was provided for by the Defendants contrary to the provisions of Section 17(1) of the Imo State University Law, 2004.

Counsel stated further that the third reason why the purported termination of the Claimant’s appointment was unlawful is that he was not given fair hearing contrary to Section 36 (1) of the 1999 Constitution. Accordingly, it is elementary that every other law in the country including Imo State University Law is subservient to the Constitution of the Federal Republic of Nigeria by virtue of Section 1 (1) of the said Constitution. It is therefore wrong for these Defendants to submit as they afforded the Claimant fair hearing as contained in their written address before the 1^st Defendant purportedly removed him as the Vice Chancellor of the 2^nd Defendant institution. The Vice Chancellor must be heard on any alleged infraction before he can be removed. This is irrespective of the wordings of the enabling law because any provision of any law that empowers the Governor to decide arbitrarily a person’s fate without fair hearing, becomes unconstitutional. Counsel stressed further that in order to establish that the Claimant was not given fair hearing, the 1^st and 4^th Defendants concocted falsely that the ad hoc Committee was set up at the instance of the Visitor, whereas Exhibit D 4 contains in its preamble that the University’s Governing Council set up the ad hoc Committee as can be gleaned on page 52 of that document where it was stated that:

“The 8^th Imo State University Governing Council at its inaugural meeting held on June 23, 2015 constituted an Ad Hoc Committee on TETFUNDS/NEEDS Assessment projects”.

He further argued that it is clear that it was the Governing Council of the 2^nd Defendant institution that set up the Committee on its own and not at the instance of the 1^st Defendant.

Accordingly, the Committee was not set up to probe the Claimant or to try him as falsely suggested by the 1^st and 4^th Defendants in their written address. The terms of Reference of the Committee are set out on page 52 of Exhibit D 4, provided as follows:

To look into the finances of all TETFUND and NEEDS projects of the University.
To ascertain the amount of money paid to each contractor to date, and
To determine if the level of work done is commensurate to the amount of money paid.

As such, there was no term of reference which sought to determine whether or not the Claimant committed any infraction. Counsel argued on that Exhibit D 4 established that the Claimant was invited to that Committee’s sitting. The Claimant was not charged with any wrong doing by the Committee. The Committee accordingly interviewed 11 witnesses. The Claimant was not present when the other 10 witnesses testified. The Committee inspected projects in the absence of the Claimant and interviewed other witnesses during the said inspection — See paragraphs 54 of Exhibit D4. This accordingly cannot by any stretch of imagination be regarded as fair hearing.

Counsel thus emphasized that the Court has set up the criteria to be met before hearing in such circumstances can be considered fair. He cited Judicial Service Commission of Cross Rivers State V. Dr (Mrs.) Asani Young (2013) 11 NWLR (pt 1364) 1 at 28, where the Supreme Court stated the criteria thus:

In a judicial or quasi-Judicial body, a hearing in order to be fair must include the right of the person to be affected:-

To be present all through the proceedings and hear all the evidence against him;
To cross examine or otherwise contradict all the witnesses that testified against him;
To have read to him all documents tendered in evidence of the hearing and to have disclosed to him, the nature of all relevant material evidence including documentary and real evidence;
To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
To give evidence by himself, call witnesses if he likes and make oral submissions either personally or through Counsel of his choice.

Counsel contended that none of these conditions were satisfied in this case and urged this Court to hold that the Claimant was not afforded fair hearing.

Counsel continued by adding that the ad hoc Committee was not also constituted in such a manner as to secure its impartiality as required by section 36 of the 1999 Constitution. It is also on record that the 3^rd Defendant was a member of the ad hoc Committee. The 3^rd Defendant was a witness at the Committee, prepared the Report of the Committee, and was a member of the Governing Council that approved the same Report. The 3^rd Defendant at the material time had already been appointed to replace the Claimant on acting capacity and was waiting for the Claimant to be permanently removed so that her appointment may be confirmed. This is contrary to the provision of Section 36 (1) of the 1999 Constitution which requires such tribunal to be set up in such a manner that its impartiality can be guaranteed. The 3^rd Defendant cannot be a judge, prosecutor and witness in her own cause. It is accordingly against natural justice. He cited Olatunbosun V. NISER (1988) 3 NWLR (PT 80) 25 inter alia. He further urged this Court to hold that lack of fair hearing vitiates the actions by the Defendants against the Claimant.

Counsel proceeded to state that the fourth reason why the termination of the Claimant’s appointment was unlawful is that the allegation is criminal in nature which the Defendants do not have the power to try and determine. He cited AMAECHI V. INEC & ORS (2008) 1 SC (PT 1) 36 at 90, where the Supreme Court made it clear that no administrative body has the power to determine criminal matters. Counsel argued that the Defendants had gone ahead to issue a White Paper banning the Claimant from holding any public office and ordering him to refund some money. The Claimant had accordingly shown the decisions reached were premeditated. The cross examination of the DW 2 purportedly shows clearly that the White Paper was issued even before the report upon which it was based was received. He further argued that the Defendants made heavy weather of the issue of Eco Systems Designs in which the Claimant is alleged to have a vested interest. The 1^st and 4^th Defendants accordingly submitted that the Claimant is the owner of Eco Systems Designs Limited. The Company is accordingly a Limited Liability Company and cannot be owned by one person by extant laws, said learned Counsel. He contended that the Claimant was not heard on this issue, and that if the Defendants discovered that the Claimant awarded a contract to a company he is suspected to have an interest in, the first step is to query him so that he may explain his own side of the story. This was never done. It was accordingly on record that the Claimant did not award any such contract. Contracts were awarded by the Tenders’ Board headed by the Pro Chancellor and the payments were approved by TETFUND after assessing the work and satisfying itself that due process were followed in the awards of such contracts and after the contractor must have achieved the required milestone. The Claimant’s testimony before the Committee is accordingly contained on pages 6 – 13 of the Committee’s Report — Exhibit D 3. Counsel believes therefore that the final findings of the Committee on the issue came from their own imagination. The Claimant was accordingly never heard on the issue as such any decisions reached against him must be null and void. He cited MUHAMMED V. A.B.U Zaria (2004) 7 NWLR 9 PT. 1407) 500.

Turning his attention to another key point, which is whether the Claimant is entitled to the reliefs sought, the learned Onyebukwa submitted that the appointment has statutory flavour as such, it can only be terminated according to the provisions of the law governing the Claimant’s appointment. Therefore, noncompliance in respect to his removal from office will ipso facto be null and void and he remains in office as if nothing had happened to his appointment. He cited F.M.C ADO-EKITI V. ALABI (2012) 2 NWLR (PT 1285) 411 at 444, where the Court of Appeal restated this position of the Law.

Counsel thus submitted that this Claimant has shown that he is entitled to his Claims and the consequential order that the letter of 17/10/16 purportedly terminating his appointment, be declared null and void as well as for an order setting aside the termination of appointment of the Claimant, having shown that the Claimant was properly appointed by Exhibit C 1, the Claimant has also shown that his appointment has not lawfully terminated as demonstrated under the arguments proffered under issue 1 above.

Counsel also believes that this Claimant is entitled to his relief in paragraph 28C of his Statement of Fact for a declaration that the 3^rd Defendant’s appointment in his stead as Vice Chancellor, was equally unlawful, null and void. Counsel remarked that if the Claimant was unlawfully removed, it shows that the appointment of the 3^rd Defendant was equally unlawful. The said appointment was also made during the pendency of this suit by virtue of Section 22 (2) of the Imo State University Law which was in contemptuous disregard to the time honoured principle that parties before a Court must not take any steps to over reach the other party or to render the adjudicatory process nugatory.

This Counsel submitted that the Claimant was appointed for a 5 year tenure which the Defendants truncated by suspending him on 3/6/15 and eventually terminating his appointment on 17/10/16. The Claimant is accordingly entitled to a reinstatement if the Court finds that he was unlawfully removed.

He further argued that the Claimant is entitled to his salaries and all other perquisites of his office as contained in Relief 28 F of Claimant’s statements of Facts, the particulars of the entitlements is in paragraph 26 A – F of the statement of facts. The Claimants also relied on Exhibit D 5 which contains the remuneration of the Vice Chancellor and other principal officers of the 2^nd Defendant institution. Accordingly also, DW 1 admitted that the Claimant’s Monthly salary is N840, 000, 00 (Eight Hundred and Forty Thousand Naira) only per month. Item B on page 2 of Exhibit D 5 lists the conventional entitlements of the Claimant. The DW 1 claimed that the said entitlements were reviewed upwards in 2007 but failed to tender the document reviewing same.

He further submitted that by the said Exhibit D 5, this Claimant is also entitled to end of tenure benefits as purportedly contained in item C page 2 of that Exhibit. The Claimant is also entitled to one overseas leave during his tenure and a year’s sabbatical leave with pay at the conclusion of his tenure — see item D on page 3. The Claimant is also entitled under item E on page 4 of the following benefits:

Annual Terminal Basic Salary.
Annual Transport Allowance
Annual Entertainment Allowance.
Annual Salary of entitled domestic staff but not exceeding 4.

He further submitted that end of tenure entitlements were not specifically claimed because the Claimant’s tenure was still running by the time this action was filed. He cited JUSTICE TITUS ADEWUYI OYEYEMI & ORS V. HON. TIMOTHY OWOEYE & ANOR (2017) 12 NWLR (PT 1580) 364 at 404, where the Supreme Court stated the position of the law in similar cases where judgment delivered after the expiration of tenure of persons wrongly removed from office.

Counsel further impressed on this Court on the authority of Oyeyemi V. Owoeye, to order the Defendants to pay to the Claimant the salaries, allowances and severance package applicable to the current occupant of the office at the date of judgment.

Counsel submitted further that the 2^nd and 3^rd Defendants’ contention attacking the relief of the Claimant that entitlements are only paid to a person who completed his tenure as a Vice Chancellor is misconceived. The 2^nd and 3^rd Defendants did not accordingly challenge the particulars of damages provided in paragraph 26 of the Statement of Facts. The remuneration payable to the Vice Chancellor was drawn up by the 2^nd Defendant institution. It did not tender any document or plead any facts to show that what the Claimant is claiming is wrong or outrageous. The facts pleaded by the Claimant are deemed admitted and admitted facts need no further proof. Also, that the evidence of DW 1 on those reliefs is not based on any pleadings and as such, goes to no issue. He cited Alhassan V. Ishaku (2016) 10 NWLR (pt. 1520) 230 at 260.

Counsel further submits that the Committee’s report is tainted with fraud, as averred in paragraph 25 of the Statements of facts. DW 2 accordingly had no explanation to the fraud when confronted, and the Defendants did not also challenge the Claimant’s pleadings on this issue in their Statement of Defence. He finally urged this Court to grant the reliefs and set aside the White Paper, Report on IMSU ad hoc Committee and the University Council Report as it affects the Claimant. The relief in paragraph 28 G is accordingly overtaken by events and he urges this Court to discountenance same. Claimant’s Counsel concluded by urging this Court to resolve all the issues raised in favour of the Claimant and granting the said reliefs as sought.

On the second final written address filed by the Claimant’s Counsel in response to the 2^nd and 3^rd Defendant’s Final Written Address, the learned Onyebukwa merely restated his arguments and submissions contained above. Therefore, the summary made in respect to the Claimant’s Final Written Address in response to the 1^st and 4^th Defendants shall be considered to be the Claimant’s final submissions.

COURT’S DECISION:

Having considered and gone through the processes, evidence, exhibits and testimonies produced by either side, I find and hold that the only issue for determination is “Whether the Claimant is entitled to the reliefs sought”?

However, before I delve into this sole issue, the 1^st and 4^th Defendant’s Counsel raised a question of the jurisdiction of this Court to entertain this suit by stating that this suit is not Labour related and so the Court lacks jurisdiction to determine it. Without mincing words, in a situation where a Claimant seeks remedy for a purported unlawful termination of his appointment, the proper Court to proceed to will be the National Industrial Court by virtue of Section 7 of the National Industrial Court, 2006 which confers on this Court exclusive Jurisdiction to adjudicate on Civil matters in relation to labour, Trade Unions, and industrial relations, environment and conditions of work, health, safety, and welfare of labour and all such matters incidental or ancillary thereto amongst others. These provisions were reinforced and strengthened by Section 254 C (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended by the 3^rd alteration Act. I therefore do not agree with the learned Counsel for the 1^st set of Defendants that this Court lacks jurisdiction to entertain this cause.

It is not in doubt that Claimant’s appointment with the 2^nd Defendant institution is one that is governed by statute. Of course, this can be gleaned from the Claimant’s Appointment Letter. Therefore, as admitted by these parties, it means his appointment enjoys the protection of the law that establishes the 2^nd Defendant’s institution. Therefore, the crux of the instant case is whether the termination of the Claimant was unlawful or unconstitutional and also whether or not he was afforded fair hearing in regards to the manner of the termination of his appointment as Vice Chancellor.

Outrightly, the position of the law is that an employment with statutory coloration can only be determined in accordance with the procedures laid down by the statute establishing the appointment and no other procedure. This is gleaned from the already decided chains of judicial authorities and for sake of this pronouncement, I have listed only the cases of Longe V. First Bank of Nig (2010)LPELR 1793(SC), (2010) 6 NWLR(PT.1189). Plc and CBN V. Igwilo (2007) LPELR 835(SC).

Put differently, this Claimant’s appointment as a Vice Chancellor of the 2^nd Dedendant institution cannot be terminated at any given time, by any person without following the due process of Law establishing the university which is the Imo State University Law No. 5 2004.

I believe the only borne of contention amongst these parties is whether or not the 1^st Defendant as Visitor to the University acted in accordance with the provisions of the Imo State University Law 2004 when it purportedly terminated the appointment of the Claimant as the Vice Chancellor on 17/10/2016 supposedly on the recommendation of the ad hoc Committee set up to investigate the alleged misapplication of the TETFUND/NEEDS Assessment funds by the Claimant. Whereas these Defendants made arguments and submissions to the fact that the Claimant was afforded a fair hearing by the said Committee after he was invited to answer questions put to him in respect of the allegations before their final findings were made, the Claimant believes otherwise stating that the Committee itself did not afford him with a fair trial and that it even lacked the power to investigate him given their terms of reference. The Claimant also alleges that the offenses labeled against him are Criminal in nature and that the ad hoc Committee was set up at the instance of the 2^nd Defendant’s Governing Council and not by the 1^st Dedendant in complete disregard of the provisions of Law No. 5 2004.

The questions which beckon my consideration are obviously as follows:

Whether the termination of the Claimant’s appointment as the Vice Chancellor was in accordance with the Imo State University Law No. 5 and therefore lawful or not?
Whether or not the Claimant was granted a fair hearing before the purported termination of his appointment was effected by the 1^st Defendant?
Whether the Claimant is therefore entitled to the reliefs sought.

On the legality of the termination of his appointment, the Defendants particularly the 1^st and 4^th, had stated that the Claimant was alleged to have misconducted himself when he misapplied the TETFUND/NEEDS ASSESSMENT PROJECTS established for the smooth running of the 2^nd Defendant institution. Accordingly, the Claimant had used his office in a fraudulent manner by utilizing a private company in which he had vested interests to execute certain projects which were not even concluded. The Claimant countered this assertion and stated that his intervention with respect to this matter was not particularly considered by the ad hoc Committee set up to investigate the matter before he was first suspended with effect from 2/6/2015 and eventually purportedly terminated on 17/10/2016. It was further contended by the Claimant that the procedure utilized in his termination was against the law protecting the said appointment.

Interestingly however, none of the parties forwarded the said law no 5 for this Court’s perusal. Nonetheless, Section 17 (1) of that law provides thus:

From the position canvassed by the Claimant, it seems he does not challenge the fact that the Visitor with reference to Section 17 above, does indeed have the power to terminate his appointment if found that he had misconducted himself. What he contends however, is that the Visitor did not in fact, terminate him from office and if he did, such was neither reflected in an official gazette or expressly communicated to him. He also alleges that Exhibit D 3 which purports to be a State Official Gazette is unsigned and same could not have been effected by the State Governor (1^st Dedendant).

Looking closely at the provision of Section 17 (1) of law no 5 of 2004 however, the words expressly intend to grant the Visitor the powers to terminate the appointment of including the Vice Chancellor, upon any ground of misconduct or of inability to perform the functions of his office, or for any other good cause. It means therefore, should the Visitor decide that the Vice Chancellor committed any acts likely to be seen as a misconduct, he has the fettered discretion to terminate the appointment of such holder of office. It is therefore safe to conclude that the letter of termination tendered before this Court as Exhibit CW “C” dated the 17/10/2016 and written by the Secretary to the Government of Imo State, was reflective of the power of the State Governor and as the Visitor of the 2^nd Defendant institution, to terminate the Claimant’s appointment as Vice Chancellor in accordance with Section 17 (1) of Law No. 5 of 2004. It is thus my considered opinion that the termination of this Claimant’s appointment was done lawfully and in substantial compliance with the law establishing the university and I so declare.

On the question of fair hearing by the ad hoc Committee set up to investigate the TETFUND/NEEDS Assessment projects executed during the tenure of the Claimant as Vice a Chancellor, it was his assertion that he was not afforded a fair hearing by the committee in that he was only called as a witness to testify along with 10 other witnesses called up by the said committee. According to the Claimant, he was not informed of the alleged misconducts against him nor was he given any opportunity to produce any witnesses or to cause an intervention on his behalf in accordance with the Constitution of the land under Section 36. He believes also that the non availability of judicial intervention into the alleged misconducts which are criminal in nature, overreaches him and as such, the report of the Committee (Exhibit D 4), ought to be set aside and his appointment reinstated with effect from 2015 when he was indefinitely suspended. Accordingly also, that Exhibit D 1 which is tagged “Government White Paper on the Report of the Imo State University Governing Council’s date hoc Committee on TETFUND AND NEEDS Assessment Projects” was a fraudulent attempt at indicting him for what he was never given avenue to defend.

The 2^nd and 3^rd Defendants countered the above position and had produced evidence to suggest that the Claimant was not denied any fair hearing and that in fact, the setting up of the Committee to investigate him was a surplusage since Section 17 of Law No. 5 does not specifically require the setting up of an administrative panel to determine if a Vice Chancellor misconducted himself in office before he may be terminated by the Visitor.

In VISITOR, IMSU V. OKWONKWO AND ORS (2014) LPELR-22458(CA) the Court of Appeal in Owerri had cause to decide on a matter which was similar to this and had held concerning fair hearing — while referring to the case of CHIEF J.L.E. DUKE Vs GOVERNMENT OF CROSS-RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 at 366 B – C where GALADIMA JSC (as he was then) said:

“By the term “fair hearing” within the context of Section 36 (1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto”

I reckon that although the appointment of the Claimant has statutory flavour and same is protected by the Imo State University Law No. 5 of 2004 Sections 16 and 17 thereof, he cannot be removed from office or disciplined outside the laid down procedures contained in the said law. I had already found above that his termination was in consonance with Section 17 of IMSU Law No. 5.

Now, considering whether or not the Claimant was given a fair hearing by the Committee that recommended his removal as Vice Chancellor, the Claimant who was cross examined on 30/10/2018, had responded to questions from the 1^st and 4^th Defendants’ Counsel thus:

Q: YOU WERE INVITED BY THE AD HOC COMMITTEE ON TETFUND AND NEEDS PROJECTS?

A: I WAS INVITED FOR INTERACTION.

Q: YOU ATTENDED THE COMMITTEE SITTINGS?

A: YES.

Q: YOU MADE REPRESENTATION TO THE COMMITTEE. QUESTIONS WERE PUT TO YOU WHICH YOU ANSWERED?

A: YES.

….

Q: THE REPORT OF THE COMMITTEE WAS PUBLISHED IN A WHITE PAPER?

A: YES

Q: CONTRARY TO YOUR ALLEGATION THAT YOU WERE NOT GIVEN FAIR HEARING, BUT YOU WERE INVITED BY THE AD HOC COMMITTEE?

A: THE PROCEDURE IS WRONG.— See pages 30 to 32 of the record of proceedings.

Under cross examination by Counsel for the 2^nd and 3^rd Defendants, the Claimant was asked the following questions:

Q: THE CHAIRMAN OF THE AD HOC COMMITTEE WAS H.R.H EZE PROF. PETER EBIGBO?

A: YES

Q: THAT COMMITTEE LOOKED INTO THE ALLEGATIONS AGAINST YOU?

A: NO.

Q: THE COMMITTEE INVITED YOU AND SEVERAL OTHERS?

A: YES

Q: THE COMMITTEE ASKED YOU ABOUT YOUR DEALINGS AS VICE CHANCELLOR?

A: YES, I GAVE A DETAILED ANSWER.

Q: YOU NEVER CHALLENGED THE COMPOSITION OF THAT COMMITTEE?

A: NO. I NEVER DID.

See pages 33 to 34 of the Court’s record of proceedings.

The DW 2 who had testified on behalf of the 2^nd and 3^rd Defendants, had stated under cross examination as well amongst other things, that she does not know if the Claimant was invited by the police on the allegations made against him for misapplication of the TETFUND/NEEDS Assessment Projects fundings by the Claimant. She also stated that she was not in any position to verify if he was ever queried by the Governing Council before he was made to face the Committee. When probed further she denied knowing the contents of Exhibit D 1 and that the contents were classified.

Faced with these numerous evidence and accounts by the witnesses, I came to the conclusion easily that the Claimant ought to have known that the ad hoc committee whether set up by the Governing Council of the 2^nd Defendant or by the 1^st Defendant as Visitor, would incidental to their terms of reference, make such recommendations that may affect his position as Vice Chancellor of the 2^nd Defendant institution. Armed with the possibility of such knowledge, it was indeed within his reach to have either refused the Committee’s invitation to attend or to set out to sue the set up Committee from the onset in order to prevent them from sitting and taking any further measures which are likely inimical to him. Therefore, as correctly stated by the learned Counsel to the 2^nd and 3^rd Defendants, the fact that a Committee was even set up to investigate the allegations made against the Claimant was an exercise carried beyond the provisions of the University Law. Much as I agree with this opinion, I am equally mindful of the fact that it is desirous for an employee to be accorded ample fair hearing before any steps are taken to either dismiss or terminate his appointment particularly in this type of employment protected by statute. Giving therefore the facts and circumstances of this case, I am sufficiently satisfied that this Claimant was ipso facto, accorded sufficient fair hearing by the ad hoc committee set up to investigate his activities with regards to the TETFUND and NEEDS Assessment Projects executed during his tenure as a the Vice Chancellor. The fact that he was not made to face a Criminal Court does not deter the Visitor from exercising his right to terminate the Claimant as Vice Chancellor of the University as provided for under Section 17 of IMSU Law No. 5 of 2004. Besides, it is obvious that the report of the Committee whether favorable or not, will still not fetter the Visitor’s right to so act in terminating the appointment of the Claimant as Vice Chancellor. In such instance, I think it will only be fair, to give the express interpretation of the Section as regards the powers of the Visitor to terminate the Claimant as Vice Chancellor. Thus found, I hereby refuse to believe that the Claimant was not afforded a fair hearing and thus do not accept that the Constitutional provision of Section 36 was breached, and I so hold.

On the third question formulated above, having found that the Visitor has the power to terminate the Claimant’s appointment as Vice Chancellor and also having reached the conclusion that he was accorded due and fair hearing by the ad hoc Committee set up by the Governing Council of the 2^nd Defendant institution, I therefore believe that reliefs A, B, C, D, E, F AND G sought for cannot be granted. This however does not prevent the Claimant from whatever entitlements he is legally obligated to upon the termination of his appointment as a Vice Chancellor. Although the writ as well as the exhibits are bereft of any reference to the terminal benefits allowed to be paid in such a situation, I however belief that the Claimant is entitled to such as must be paid before his exit.

The Claimant’s case is dismissed. This is the decision of this Court.

Delivered in Owerri this 4^th day of December, 2019.

Hon. Justice Ibrahim Suleiman Galadima

Presiding Judge

NICN Owerri Division