Rev (Dr) Chinwedum E. Nwadighoha -VS- Michael Okpara University of

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 21^ST FEBRUARY 2019

SUIT NO.NICN/OW/32/2017

BETWEEN:

REV. (DR) CHINEDUM E. NWADIGHOHA CLAIMANT

AND

MICHAEL OKPARA UNIVSERSITY OF

AGRICULTURE, UMUDIKE

THE VICE-CHANCELLOR, MICHAEL OKPARA

UNIVERSITY OF AGRICULTURE, UMUDIKE

(PROFESSOR FRANCIS OGBONNAYA OTUNTA) DEFENDANTS

THE REGISTRAR, MICHAEL OKPARA

UNIVERSITY OF AGRICULTURE, UMUDIKE

(DR. A.C. NWOKOCHA)

THE COUNCIL, MICHAEL OKPARA

UNIVERSITY OF AGRICULTURE, UMUDIKE

APPEARANCES:

CHIEF SAM NWADIGHOHA FOR THE CLAIMANT.
COUNSEL TO THE DEFENDANTS ABSENT.

JUDGMENT

INTRODUCTION

This suit was commenced by an undated complaint filed 15^th May 2017. It was accompanied with the Statement of Facts, Affidavit in Verification on Complaint, List of Claimant’s Witnesses, Written Depositions on Oath by Claimant’s Witness 1, Witness 2, Witness 3, List of Copies of Documents to be Relied Upon by the Claimant, and the copies of these documents. However, the claimant filed an undated Amended Statement of Material Facts on 21^st September 2018, which was deemed properly filed and served on 29^th November 2018. The Amended Statement of Material Facts was accompanied with an unsigned Amended Deposition of Rev. Dr. Chinedum Ephraim Nwadighoha. This was never adopted in Court. By paragraph 35 of the Amended Statement of Material Facts, the claimant claimed the following reliefs:

(A) A Declaration that the Disciplinary measure meted against the Claimant in Dismissing the Claimant from the services of the 1^st Defendant is not in line with the mandatory requirements of the 2015 terms and conditions of service of the Claimant clearly contained in Chapter 11.2(i) and 11.19 Vii a, b, c, d, and e of the Michael Okpara University of Agriculture, Umudike Conditions of Service for Senior Staff 2015. [sic]

(B) A Declaration that the statutory procedure required to be followed by the investigating panel towards the discipline and Dismissing the Claimant from the employment of the 1^st defendant was not followed as same is against the provision of section 16(1) and (2) of the University of Agriculture Decree No. 48 of 1992 making it mandatory that an investigating panel must be constituted by the Vice Chancellor or the senate to determine whether or not a prima facie case has been established against any member of the staff of the university before the investigating panel will be composed, which procedure was greatly abandoned as the Vice Chancellor of the 1^st Defendant was not responsible for setting up the Investigating Panel that found the Claimant guilty. [sic]

(C) A Declaration that the composition of the Investigating Panel towards the discipline and Dismissal of the Claimant from the employment of the 1^st defendant was compromised, same being lopsided as against the provision of section 18(2) of the Universities of Agriculture Decree No. 48 of 1992 making it mandatory that the composition of the Investigating Panel must include as member the President or Chairman of the Union (Academic Staff Union of the Universities) to which the Claimant belonged as statutorily required and must be complied with which procedure was not adopted by the Investigating Panel rendering their findings null and void and of no effect whatsoever. [sic]

(D) A Declaration that the allegations of extortion of money from students, corruption, upgrading of students results, examination malpractices etc leveled against the Claimant amounts to commission of crimes, far removed from the domestic affairs/jurisdiction of Michael Okpara University of Agriculture Umudike as such rights constitutionally have been exclusively reserved to a Court of law set up under the Constitution of Federal Republic of Nigeria where the complaints of the Claimant’s accuser(s) can be ventilated in public and where the Claimant could be sure of getting fair hearing as no other tribunal or Investigating Panel has the power to try the Claimant for any alleged criminal offence inclusive of the Defendants. [sic]

(E) A Declaration that the act of the Investigating Panel in only receiving a so called petition from some faceless people, their act in choosing whom to interview in the absence of the Claimant and their obvious refusal for the Claimant to confront each and every of his accusers in questioning or cross examining them as to the veracity or correctness of their claims/allegations, tantamount to gross violation of the fundamental rights of the Claimant which snowballed into denial of his rights to fair hearing as the Claimant neither knew nor was allowed to confront his accusers whom at best could be regarded as faceless and non-existent which is an abuse of Administrative authority/absolutism and thereby is unconstitutional, null and void. [sic]

(F) A Declaration that the act of the Investigating Panel and Staff Disciplinary Committee in not allowing the Claimant’s teaming witnesses to testify before the committee as to his innocence of the charges leveled against the Claimant is a great violation of the Claimant’s constitutionally guaranteed right to fair hearing and so is unconstitutional, unjustifiable, illegal and wrongful. [sic]

(G) A Declaration that the unending persecution of the Claimant by the Defendants or their cohorts and their determination of the Claimant’s employment after serving the Defendants meritoriously in several capacities for so many years is in bad faith, malicious and in the extreme and needles case of vendetta and termination of Claimant’s appointment wrongful, null and void. [sic]

(H) A Declaration that the kangaroo trial of the Claimant and subsequent condemnation of the Claimant by indicting him by several offences leveled against him and subsequent dismissal of the Claimant by the 4^th Defendant is condemnable and wrongful, unconstitutional and a great violation of the Claimant’s rights. [sic]

(I) A Mandatory Order compelling the Defendants to reinstate the Claimant to his employment with full benefits, effect from 16^th February 2017. [sic]

(J) General damages of N50,000,000.00(Fifty Million Naira] [sic]

Against the above, the defendant filed an Amended Statement of Defence dated 31^st March 2018 and filed 25^th April 2018. It was deemed properly filed and served alongside the Amended Deposition of Mr. A.S. Onoja on 26^th April 2018. The 2^nd application, a motion challenging the jurisdiction of the Court on the ground of not exhausting the internal dispute resolution mechanism before approaching the Court, was on the agreement of counsel to both parties, ordered to be raised, in the final written address.

The matter came up first before my learned brother: Hon. Justice O.Y. Anuwe on 21^st June 2017. It was on this date adjourned to 7^th July 2017 for hearing. The Court did not sit on 7^th July 2017. The next time it sat was 24^th October 2017, and this time around, it came up before me for the first time; Hon. Justice Anuwe having been transferred from Owerri Judicial Division. On this 24^th October 2017, the matter was adjourned to 5^th December 2017 for further mention. The matter came up as adjourned. On this date, because the defendants just served the claimant with a motion and because the defendants did not pay the default fee on the motion, the matter was adjourned to 11^th January 2018 for the application of the defendants and for the correct default fee to be calculated and a report brought back to the Court. The matter came up on the 11^th January 2018 as adjourned, but the report ordered was not in the file, and as a result, the case was further adjourned to 16^th January 2018 for compliance with the Court’s directives.

On 16^th January 2018, the matter came up. The case was again adjourned on this date on the same issue to 6^th February 2018 for report of further investigation ordered into the correct default fee to be paid. The matter came up as adjourned on the 6^th February 2018. On this date, the Court confirmed payment of the correct default fee. This is evidenced in the photocopy of the receipt at page 235A of file. Thereafter, the learned counsel to the defendant: W.O. AGUGO, moved the motion to file the Amended Statement of Defence out of time and to deem it as properly filed and served, the Memorandum of Appearance and Statement of Defence dated and filed 4^th December 2017. The application was granted unopposed but on terms. The claimant was given 7 days within which to file and serve his reply, if any; and the matter subsequently adjourned to 7^th and 14^th March 2018 for hearing. The matter came up on 7^th March 2018 as adjourned and the case was opened. But before this date, the claimant filed Reply to the Statement of Defence on 12^th February 2018. Let us now examine the cases made by the parties in their extant pleadings.

CASES MADE OUT IN THE PLEADINGS

Claimant’s Case

The extant Statement of Facts is the undated Amended Statement of Material Facts filed 21^st September 2018 and deemed properly filed and served 29^th November 2018. The claimant pleaded that he was employed 21^st August 2007 and served the defendants dutifully till 16^th February 2017 when he was dismissed. He pleaded further that after two years that he left as the Director of the Continuing Education Centre and after the former Vice Chancellor had also retired; his predecessor and arch enemy [Professor John U. Ihendinihu] and his cohorts victimized him by concocting allegations of extortion and examination malpractices against him. He pleaded that, sequel to these, a Panel of Investigation set up was not by the 2^nd defendant, as required by law but, rather generated and headed by Professor Ihendinihu to investigate him and other staff of the Centre on the allegations. The claimant said, as a result, the report of the Investigation Panel was flawed. The claimant pleaded that, concocted petitions were allegedly received against him, from faceless people, who neither appeared before the panel to substantiate the alleged petitions, nor were available for cross-examination.

The claimant pleaded that the Investigation Panel before inviting him to their meeting fished for evidence at his back by inviting all the students of the Continuing Education Centre and chose 28 of them and 33 staff of the Centre and that, the petitioners and the petitions written, were equally shielded from him. The claimant pleaded that Professor Ihendinihu had a deep-seated hatred for him because he took over from him after the students rejected him, when he returned from South Africa, as the Director of the Continuing Education Centre; and was therefore biased against him. The claimant pleaded that, it was after Professor Ihendinihu sent his accusers away, satisfied that he had gotten what he wanted against him and that the Investigation Panel invited him alone, raising the issues of extortion of money and authorizing his coordinators to illegally upgrade results. The claimant pleaded that he was further asked to suggest ways to improve the administration of the Continuing Education Centre [CEC].

The claimant pleaded further that he was denied the opportunity of fielding witnesses as his witnesses were locked out of the venue of the Panel. The claimant said after the Investigation Panel completed its work in this biased manner, it forwarded its report to the Staff Disciplinary Committee, which sat without inviting the claimant and based its decision on the faulty report of the Investigation Panel. The claimant pleaded further that, the Investigation Panel was not properly constituted; and that the 4^th defendant based its decision to dismiss him on the faulty reports of the Investigation Panel and the Staff Disciplinary Committee by sustaining all the criminal allegations against him. The claimant therefore claimed the reliefs earlier reproduced in this case.

Defence

The defendants’ defence is as contained in the Amended Statement of Defence dated 31^st March 2018 and filed 25^th March 2018 and deemed properly filed and served 26^th April 2018. The defence as pleaded, was that, the defendant complied with the terms of employment of the claimant, as contained in his letter of appointment. And that, following the inquiry of the 3^rd defendant, it was unearthed that, the American University where the claimant obtained his PhD was not recognised by the Federal Ministry of Education hence, he was ordered to undergo another PhD degree within 3 years. In further defence, it was pleaded that, the claimant’s predecessor in the office of CEC did not make any allegations against the claimant but that, rather allegations of extortion and illegal upgrading of results were leveled against some teachers at the Continuing Education Centre, as a result of which the Vice-Chancellor, by a letter dated 21/9/2015 constituted a panel of investigation on the matter, which Panel was additionally directed, to also identify other staff and persons involved; and that, while the Panel was investigating the mater, it discovered the claimant was one of the persons involved.

The defence also pleaded that the claimant never raised the issue of the composition of the panel and neither that of bias nor complaint against any of the members; and that, the claimant and all people involved testified and presented their cases. It was also pleaded in the defence that, all rules were complied with. The defendants also raised the defence that, at the time the Panel sat, there was crisis of leadership in the Union of the claimant, making it impossible to recognise leadership of any of the factions but that, all members of the panel were actually members of the academic staff, except the secretary. The defence also pleaded that the claimant and all the other people investigated were confronted with the allegations against them and afforded adequate opportunities to defend themselves. It was pleaded too, that no witness of the claimant was barred from testifying on his behalf. The defence pleaded that the Staff Disciplinary Committee by law has no jurisdiction to take representations but only considers proceedings of an Investigation Panel.

The defence pleaded that the Staff Disciplinary Committee sat and made recommendations to the Council Committee on Staff Discipline [Council Committee], who in turn again invited all persons involved, including the claimant, heard them and allowed them to put across their cases before making recommendations to the Council. The defendants pleaded too, that the reports of the panels were not faulty and that, no criminal trial was held against the claimant. The defendants also pleaded that the suit was premature for failure to exhaust the internal dispute resolution mechanisms of the 1^st defendant. The Court was finally urged to dismiss the suit with cost.

Claimant’s Reply

The claimant further joined issue in the Reply dated and filed 12^th February 2018 and pleaded that, contrary to the assertion in the Statement of Defence, his PhD degree from a University in the US was not illegal, but just that, it was from a university not recognized by the Ministry of Education in Nigeria. The claimant stated further that, he got the Nigerian PhD within the three-year deadline given him; and that, the issue of non-recognition of his initial PhD had nothing to do with the issue of his dismissal. The claimant denied receiving the dismissal letter on 28/2/2017 but on 31/03/2017 and said, whereas the letter was backdated 16/02/2017 while he remained in active service of the defendants till 31/03/2017. The claimant also pleaded that; it is not true that the allegations of extortion and illegal upgrading were made against some teaching staff and not specifically against the claimant, as the letter of dismissal bore out the falsity. The claimant further pleaded in reply that, it was the former Vice Chancellor: Professor Edoga that set up the Council to investigate him and others, but that, it was neither she nor the Council under her that dismissed him but rather, the 2^nd defendant who was just came in to pass a verdict on a matter heard by different Council and Committees, and which Council and Committees, did not recommend dismissal. The claimant replied that he is opposed to the defence that he never objected to the composition of the Investigating Panel, Staff Disciplinary Committee and the Council Committee as they all neglected to allow claimant’s witnesses to appear to testify.

The claimant also replied that all the defendants are juristic persons. The claimant also replied that he was not told in writing, of the grounds on which he was being considered for dismissal, before he was dismissed. The claimant also replied that, the mandatory requirement of law that, before the Investigation Panel could determine whether a prima facie case is established against him, it must have the Chairman of his Union, was not obeyed, and the law was further breached, in that, the defendants constituted themselves into a law court by trying allegations of crime leveled against him and found him guilty. The claimant also replied that, he was not informed of the specific day or date that question of his dismissal would be brought before the Committee and that, he would be entitled call witness. The claimant replied that, his counsel wrote the defendants to retrace their steps and rescind his dismissal, but they refused. The claimant said that, bias is proved, when it is realized that virtually all the people accused of the same offence, even those that were the principal culprits, had been recalled, while some were never even sanctioned, and that, rather it was only the claimant, that the defendants said was a mere accessory after the fact that was hounded.

Thus ended the pleadings. It was on the bases of the above pleadings that the parties led evidence at trial, and their respective counsel filed final written addresses, in proof of their respective cases. I shall now move to the trial proceedings.

TRIAL PROCEEDINGS

Claimant’s Testimonies

The case opened with Rev. Dr. Chinedum Nwadighoha, the claimant, who testified on behalf of himself as CW1. CW1 affirmed and observed all the other preliminaries. Thereafter, CW1 identified the witness statement on oath deposed on 11th May 2017. CW1 also identified another witness statement on oath made on 12^th February 2018. CW1 adopted these two witness statements on oath as his evidence-in-chief. CW1 thereafter put forward some documents and applied to tender them. The learned counsel to the defendant said he would only object to the ones that were photocopies. Exhibits A and B, which were originals, were therefore tendered, without opposition and, marked accordingly. However, after the admission of Exhibits A and B [supra], the learned counsel to the defendant withdrew his objection to the photocopies. Hence, Exhibits C, photocopy of a promotion letter was admitted and marked accordingly. Before proceeding further, the learned counsel to the claimant: CHIEF SAM NWADIGHOHA, applied to substitute Exhibits A and B with their photocopies. This application was granted without objection.

Later, the photocopy admitted as Exhibit D1-105 (82a and 85a) without objection was marked accordingly. Later, three documents marked as Exhibits E(1-2), F, and G, which were all originals were admitted without objection, and accordingly marked. Immediately thereafter, the learned counsel to the claimant sought to substitute them with their photocopies. This application was granted without objection. After this, Exhibits H(1-2) and J were tendered without objection and marked accordingly. The learned counsel also substituted them, with the kind permission of the Court, and without objection. Later, photocopies of two reports were tendered without objection and marked as Exhibits K(1-15) and L(1-21) respectively. The dismissal letter was tendered without objection and marked as Exhibit M(1-2), and was immediately substituted with its photocopy without objection too. Finally, Exhibit N(1-2) was tendered without objection and accordingly marked. The evidence-in-chief of CW1 was brought to an end; and the matter adjourned to 14^th March 2018 for cross-examination and continuation.

On 14^th March 2018, the matter came up as adjourned. CW1 was cross-examined without re-examination and thereafter discharged. Thereafter, CW2 was led in evidence. After affirming, CW2 adopted his witness deposition made 15^th May 2017 without tendering any document. Thereafter, his evidence-in-chief was brought to an end. Immediately after, CW2 was cross-examined without re-examination. Thereafter, the case of the claimant was closed; and the matter adjourned to 25^th and 26^th April 2018 for defence and cross-examination.

Testimonies of the Defence

On 25^th April 2018 when the matter came up for defence, the counsel to the defendants was absent without reason. Hence, the matter was adjourned to the following day: the 26^th April 2018, a date previously fixed for the case. On 26^th April 2018, the matter came up as adjourned. However, the learned counsel for the defendants informed the Court of the pendency of two applications of theirs. The learned counsel to the claimant said he would not object to the first of the two but would oppose the second. Thereafter, the learned counsel for the defendant moved the application for leave to file Amended Statement of Defence and to deem it as properly filed and served. This application was dated 31^st March 2018 and filed 25^th April 2018. It was granted with cost of N5,000.00. The learned counsel to the claimant suggested that the 2^nd application be taken after conclusion of trial, to which suggestion, the learned counsel to the defendant agreed. The Court therefore ordered that the 2^nd application be brought up at the final address stage. Subsequently, the matter was adjourned to 7^th and 10^th May 2018 for defence and cross-examination.

The matter came up on 7^th May 2018 as adjourned, but the matter could not go on as scheduled, as the defence counsel was absent. The matter was adjourned to the earlier date of 10^th May 2018 for defence and cross-examination. On 10^th May 2018, the matter came up, but the defence counsel said his witness was not in Court. The case was, as a result, adjourned to 6^th and 7^th June 2018 for defence and cross-examination. It came up on 6^th June 2018 as adjourned and the defence opened their case with DW1. DW1 affirmed and complied with all the other preliminaries. DW1 adopted his witness deposition on oath made 4^th December 2017 and the Amended Witness Deposition made 25^th April 2018. Thereafter, the learned counsel to the claimant told the Court that he had examined the 6 documents the defence intended to tender and that, he was not objecting to any. The 6 documents were tendered and admitted and marked as Exhibits DW1, DW2, DW3, DW4, DW5, and DW6 respectively. Evidence-in-chief of DW1 was brought to an end and the case adjourned to 7^th June 2018 for cross-examination.

On 7^th June 2018, the matter came up as adjourned, and DW1 was cross-examined. The cross-examination was concluded on the same date and there was no re-examination. Thereafter, the defence closed their case. The case was thereafter adjourned to 25^th September 2018 for adoption of the final written addresses.

ADOPTION OF FINAL WRITTEN ADDRESSES

On the said 25^th September 2018, the Court did not sit because, before then, I had been transferred from the Owerri Division and was yet to secure fiat to continue with my part heard matters. The matter was therefore adjourned off record to 29^th November 2018. On this date, when the matter came up, the learned counsel to the claimant moved the claimant’s application to amend his Statement of Facts and the witness deposition. The application was granted unopposed. Thereafter, leave was granted to the claimant’s counsel to change the name “Charles” to ‘Francis’ on the heading of the Amended Statement of Material Facts. On this date, the defendants were foreclosed from filing their final written address for failure to file within time. The claimant’s counsel was therefore called upon to go ahead with adoption of the claimant’s final written address, which had been filed after the time for the defendants to file theirs lapsed. The learned counsel to the claimant moved the claimant’s final written address dated and filed 24^th September 2018. Thereafter, the Court ruled that the defence counsel would be allowed to reply orally on points of law.

But, the learned counsel for the defendants asked for a date to enable him file reply on points of law. The case was therefore adjourned to 6^th December 2018 for the defendants to file their reply on points of law. On this date, the Court did not sit and the matter was adjourned off record to 10^th December 2018. On 10^th December 2018, the matter came up as scheduled, and on this date, the learned counsel to the defendants made oral application praying the Court to vacate its order foreclosing them from filing final written address. This application was opposed; and the Court upheld the objection and the Court refused to vacate its earlier order foreclosing the defendants and struck out the final written address of the defendants dated 4^th December 2018 and filed 5^th December 2018. The learned counsel to the defendants: O. MMADUKA adopted the reply on points of law dated 4^th December 2018 and filed 5^th December 2018; and urged the Court to dismiss the suit. The case was thereafter adjourned to 9^th January 2019 for judgment.

Judgment was not ready by 9^th January 2019. For this reason, the judgment was adjourned sine die till it was completed within the statutory time frame when a date would be communicated to the counsel for its delivery. When it was ready a date was accordingly communicated to counsel to the parties. Having got to this stage, the next thing is for me to summarise the final written address of the claimant and the reply on points of law filed by the defence, being the only final written addresses legally available for summary. I proceed.

SUMMARIES OF THE FINAL WRITTEN ADDRESES

Claimant’s Final Written Address

CHIEF SAM E. NWADIGHOHA franked the final written address of the claimant. The learned counsel to the claimant distilled 5 issues for the determination of the suit, to wit:

(i) Whether the Procedures strictly required to be observed before the dismissal of the Claimant from the employment of the 1^st Defendant as contained in its Regulations as exemplified in its Conditions of Service For Senior Staff 2015 tendered and admitted as Exhibit D1-D5 [sic] (82A-85A) and the Act guiding the procedure for the Discipline and Removal of the 1^st Defendant’s Academic Staff which is Section 17 (1) a, b, c of the Federal Universities of Agriculture Act, CAP. F22 strictly complied with before the discipline and dismissal of the Claimant?

(ii) Whether the procedures for staff discipline/composition of the Investigation Panel that was set up and actually tried the Claimant compromised or lopsided against the provisions of 18 (2) of the University of Agriculture Act CAP. F22 Laws of the Federation of Nigeria and Chapter 11.2 (i) of the Conditions of Service For Senior Staff 2015?

(iii) Whether the fundamental right of fair hearing of the Claimant or any of his fundamental rights was breached by the Investigation panel set up to try the Claimant by the 1^st Defendant’s Panel of Investigation or other trial committees? [sic]

(iv) Whether the allegation of extortion, upgrading results, examination malpractices and other corrupt practices leveled against the claimant amount to commission of a criminal offence far removed from the domestic affairs/jurisdiction of the 1^st defendant? [sic]

(v) Whether from the facts and circumstances of this case, the accusations leveled against the Claimant and the guilty verdict passed on him and his subsequent dismissal was not done in bad faith, malicious, an extreme and needless case of vendetta and thereby condemnable, unconstitutional and a great violation of the Claimant’s rights? [sic]

ISSUE 1:

Whether the Procedures strictly Required to be Observed before the Dismissal of the Claimant from the Employment of the 1^st Defendant as Contained in its Regulations as Exemplified in its Conditions of Service for Senior Staff 2015 Tendered and Admitted as Exhibit D1-D5 (82A-85A) and the Act Guiding the Procedure for the Discipline and Removal of the 1^st Defendant’s Academic Staff which is Section 17 (1) a, b, c of the Federal Universities of Agriculture Act, CAP. F22 Strictly Complied with before the Discipline and Dismissal of the Claimant?

Arguing issue 1, the learned counsel to the claimant submitted that the employment of the claimant has statutory flavour. On this, the learned counsel cited C.O.E., Ekiadalor v. Oasyande (2010) 6 NWLR (Pt. 1191) 423 at 427, ratio 6; Bamgboye v. University of Lagos (2001) 10 NWLR (Pt. 622) 290 at 413, E-G; Osisanya v. Afribank Plc (2012?) [No further details provided]; and Determination of Contract of Employment in Nigeria, South Africa and Zimbabwe – Femi Aborisade (2015), Humanitias Consult Ltd & Centre for Labour Studies, Ibadan. The learned counsel argued that the 1^st defendant was created by Federal University of Agriculture Act [FUAA] and that, by virtue of Chapter 11.2 and 11.9 (vii) a, b, c, d, e and f of Exhibit D1-D105 (82A-85A), which is the Conditions of Service for Senior Staff [CSSS] and reinforced by section 17(1)(a), (b), & (c) of the FUAA, were not complied with in the dismissal of the claimant.

The learned counsel argued that, the word “shall” as employed in these provisions denotes compulsion. The learned counsel argued that the claimant had in paragraphs 35(A) of his Statement of Facts? [Amended Statement of Facts] and paragraph 6(a)-(d) of the Reply to the Amended Statement of Defence and the Further Witness Depositions pleaded that it was mandatory that these provisions be complied with. The learned counsel argued that, the claimant testified that he was not afforded any opportunity of submitting representation to the Panel, and that, the witnesses of the claimant in the persons of Mr. Uchenna Iheanacho and Pastor Arowodo were locked out of the corridor of the 3^rd defendant during trial. The learned counsel submitted further that, the non-compliance is also shown by the refusal of the defendants to put the representative of his Union [ASSU] as a member of the Panel of Investigation as mandatorily required. The learned counsel argued that DW1 agreed under cross-examination that the representative of ASSU was not a member of the Panel but said it was because the Union had factions that time. The learned counsel argued that, Exhibit DW5 showed that ASSU was very much in existence then, except that, it had leadership tussle and that, the defendants only could not wait in order to avoid the incoming new administration.

The learned counsel argued that, the credibility of the claimant was not shaken under cross-examination and that, he was not asked any question on all these facts pleaded and canvassed above. The learned counsel argued that, the claimant also maintained that he was not informed of the specific day of discussion of his dismissal as required by law. The learned counsel cited CBN v. Dinneh (2010) 17 NWLR (Pt. 1221) 125 at 133, ratio 9 and Alhassen v. A.B.U. Zaria [no further details supplied] to the effect that, in adhering to fair hearing, an employer must still follow the procedure required of employer in the regulations or conditions of service in order to properly dismiss an employee against whom misconduct bothering on criminality is alleged. The learned counsel argued that, in employment law, any exercise of power of discipline must be done in the manner spelt out in the enabling law and that, parties cannot by consent negotiate out of the provisions of the law. The learned counsel cited Adeniji v. N.B.N. Ltd (1989) 1 NWLR (Pt. 96) 212 at 413-414, H-B and Governor of Ekiti State v. Akinyemi (2017) 17 NWLR (Pt. 1276) 373 at 387, ratio 15. The learned counsel urged the Court to hold that the employment of the claimant has statutory flavour by virtue of section 17(1)(a)-(c) of the FUAA and the CSSS. The learned counsel thereafter moved to issue 2.

ISSUE 2:

Whether the Procedures for Staff Discipline/Composition of the Investigation Panel that Was Set Up and Actually Tried the Claimant Compromised or Lopsided Against the Provisions of 18 (2) of the University of Agriculture Act CAP. F22 Laws of the Federation of Nigeria and Chapter 11.2 (i) of the Conditions of Service For Senior Staff 2015?

The learned counsel argued that, the composition of the Investigating Panel, which investigated the claimant, was compromised and not properly constituted because the representative of ASSU, as required by section 18(2) of the FUAA was not a member. The learned counsel drew attention of the Court to paragraph 35(B) of the Amended Statement of Material Facts and paragraphs 32 and 36 of the deposition where this was pleaded and evidence contained. The learned counsel submitted that, Chapter 11.2(i) of the CSSS, which made exactly the same provision, reinforced section 18(2) of the FUAA. To support this contention, the learned counsel cited Haruna v. University of Agriculture, Makurdi (2005) 3 NWLR (Pt. 912) 233 at 243, ratio 11, which held that, to determine whether or not a prima facie case had been established against a member of staff of the University, the Investigating Panel must include the President or Chairman of his Union. The learned counsel submitted that, the only way to legally terminate an employment with statutory flavour is to comply strictly with regulations governing such employment. On this, the learned counsel cited Haruna v. University of Agriculture, Makurdi [supra] 413-414, H-B. The learned counsel urged the Court to hold that the laws regulating this appointment were not observed in terminating the employment of the claimant. Thus, argument on issue 2 came to an end, and the learned counsel moved to issue 3.

ISSUE 3:

Whether the Fundamental Right of Fair Hearing of the Claimant or any of His Fundamental Rights Was Breached by the Investigation Panel Set Up to Try the Claimant by the 1^st Defendant’s Panel of Investigation or other Trial Committees?

The learned counsel argued that the claimant pleaded how his fundamental rights were breached in paragraphs 19-23, 26, 28-29 of his pleadings and paragraphs 20-24, 27, 29, 30 and 31 of his deposition to the effect that, he was set up by the Head of Investigating Committee, Professor John Ihedinuhu by telling him that the Investigating Panel had received only reports indicting him of the offences and that, the petitioners took to their heels when invited and could not defend their contradictions. The learned counsel said that, the claimant never saw the report nor was he shown any, and that, those that made the report, if any, were faceless and did not confront the claimant. The learned counsel also said that, the claimant was never afforded the opportunity to cross-examine his accusers, assuming they existed and that, they were shielded from him or they never existed while the two witnesses he sought to call were shut out in the crucial Investigating Panel. The counsel said CW2 confirmed this.

The learned counsel argued that, as weighty as the allegations leveled against the defendants by the claimants were, the defendants did not cross-examine the claimant on these allegations on 14/03/2018 thus, making his evidence to remain unshaken. The learned counsel drew attention to section 3.0 of the Report of the Investigation Panel [Exhibit K1-15] and argued that, it showed the manner in which petitions were allegedly received from faceless students who did not testify before the claimant nor made available to the claimant for cross-examination. The learned counsel argued further that, mandatory prescriptions of Article 11.9 vii (a)-(e) of Exhibit D1-D5 (82A-85B) and section 17(1) (a) & (b) of the FUAA with regard to fair hearing were flagrantly breached in that claimant was neither given notice before his trial nor was he afforded opportunity to field witness. The learned counsel argued too that, the defendant did not tender any evidence of compliance during trial. The learned counsel invited the Court to take note of the evidence of CW2 on 14/03/2018 on this. The learned counsel cited Mil. Gov. Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675 at 683, ratio 7 to the effect that, trial cannot be fair where a party to the proceedings is denied hearing or opportunity of being heard. The learned counsel argued that, the denial of fair hearing became more accentuated when the 2^nd stage or level of committees that tried him merely based their decision on the faulty foundation of the 1^st Investigation Panel by not also given him hearing at all or the opportunity of being heard. The learned counsel argued that, they sat independently and dismissed the claimant.

The learned counsel argued that the third panel [the Council of Senate] on the matter acted right when it exonerated the claimant after reviewing the works of the two previous panels. The learned counsel invited the Court to peruse the report of this panel – Exhibit DW6 at sections 5.01, 8.00 and 9.00. The learned counsel cited Akintemi v. Onwumechili (1985) 1 NWLR (Pt. 1) 68 and Unilorin v. Adesina (2010) 9 NWLR (Pt. 1199) 331 at 347, 407-408, H-C; 409-410, A-B, to the effect that, courts would interfere in the internal affairs of citadels of learning in order to protect breach of rights of citizens. The learned counsel finally invited the Court to answer this issue in favour of the claimant and against the defendant. The learned counsel thereafter moved to issue 4.

ISSUE 4:

Whether the Allegation of Extortion, Upgrading Results, Examination Malpractices and other Corrupt Practices Leveled Against the Claimant Amount to Commission of a Criminal Offence Far Removed from the Domestic Affairs/Jurisdiction of the 1^st Defendant?

The learned counsel argued that, a close perusal of Exhibits K (1-15), L(1-21), and M(1-2), which are the reports of the Investigation Panel and that of University Staff Disciplinary Committee and the letter of dismissal respectively, showed clearly that, the claimant was cited for, convicted and dismissed on, criminal offences. The learned counsel referred the Court to paragraph 1.0 of Exhibit K(1-15) and paragraphs 5.0 (F(i)-(ii), 6.0. The learned counsel cited Wikipedia, part 6 of the Criminal Code and Okonkwo & Naish: Criminal Law in Nigeria (2^nd Ed., Spectrum Law Publishing, Ibadan, 1992) p. 356 for the definition of ‘extortion’. The learned counsel also argued that, the offence of upgrading result is also a criminal offence under section 9 of the Examination Malpractices Act. The learned counsel also argued that, corruption is an offence in Nigeria under the Criminal Code, EFCC Act, ICPC Act and Money Laundering Act. The learned counsel thereafter cited N.A.U. v. Nwafor (1999) 1 NWLR (Pt. 587) 116 at 121, ratio 4 on how to determine if an allegation is of criminal nature. The learned counsel argued that, examination malpractice is a serious criminal offence, which could only be tried, in a competent court of law and that, the trial of the claimant before the domestic panel of the defendant is void for lack of jurisdiction. On this, the learned counsel cited Egwu v. Uniport (1995) 8 NWLR (Pt. 414) 419 at 425, ratio 6; University of Ilorin v. Akinrogunde (2002) 3 NWLR (Pt. 755) 626 at 629, ratio 1. The learned counsel urged the Court to hold that, the allegations against the claimant were criminal in nature and that, the domestic panels of the defendant lacked the vires to try and convict on them. The learned counsel thus ended arguments on issue 4 and moved to issue 5.

ISSUE 5:

Whether from the Facts and Circumstances of this Case, the Accusations Leveled Against the Claimant and the Guilty Verdict Passed on Him and His Subsequent Dismissal Was Not Done in Bad Faith, Malicious, an Extreme and Needless Case of Vendetta and thereby Condemnable, Unconstitutional and a Great Violation of the Claimant’s Rights?

The learned counsel argued that the claimant copiously pleaded how he had had been dutiful and was only being victimized by his rival, Professor John Ihedinuhu, who set up a panel of investigation against him at the exit of Professor Hilary Edoga and the appointment of Professor Charles Otunta. The counsel also said that the claimant pleaded that despite the touch of bias, the said Professor John Ihedinuhu chaired the Investigation Panel and denied him all opportunities of fair hearing. The learned counsel submitted that, it was not the present Vice Chancellor that set up the panels and that, it was the Council which was supposed to find the claimant guilty that found out, at the final stage, the errors in the trial of the claimant and expressed doubt on the culpability of the claimant in Exhibit D6, its Report, particularly at page 4, 6 and 7 at paragraphs 5.01, 8.00 and 9.0.

Citing section 17(1) of the FUAA, the learned counsel argued that, it remained perplexing that the Council, who legally had the power to dismiss the claimant, pointed out the flaws in the panels works and refused to order the dismissal of the claimant, and merely said he should be warned, yet the claimant was dismissed. The learned counsel referred the Court to Exhibit M1-M2 and argued that, it was at variance with Exhibit DW6 and thus, contradictory. The learned counsel argued that, arising from this, it is obvious that the claimant could not have been dismissed, and whoever dismissed him, lacked the vires to so act. The learned counsel opined that, the implication was that, Exhibit M1-M2 was forged by the claimant’s traducers and not authorised by the Council. The learned counsel finally urged the Court to reinstate the claimant in view of all the above, and particularly, because the claimant is just being punished for approaching the Court for redress while all the other persons dismissed for the same allegations had been reinstated because they apologized whereas, the claimant who did not commit any offence refused to beg. The learned counsel urged the Court to grant all the claimant’s reliefs.

I move to the next address, which is the reply on points of law by the defendants. This is so, because the claimant’s counsel filed the final written address first, at the failure of the defence to file theirs within time. Subsequently, the defence was foreclosed from filing final written address and ordered to address only on points of law and the attempt to reopen this issue was overruled and the final written address irregularly filed struck out. To the reply on points of law I go.

Reply on Points of Law

EMMA E. UKAEGBU franked the Defendants’ Reply on Points of Law. On issue 1 of the claimant, the learned counsel replied that section 28(4) of the FUAA recognised the scenario that played out in the instant case and permits the defendants to excuse the representative of the claimant’s union in a situation where it would be unreasonable to wait for the representative because, at that time, the union was in crisis and had no recognised chairman or executive. The learned counsel argued that, by paragraphs 26 and 27 of the Statement of Facts of the claimant, the claimant admitted that the Investigation Panel confronted him with all the allegations against him and that, all these allegations are gross misconducts under Chapter 11 of the Conditions of Service of Senior Staff. The learned counsel referred the Court to Exhibit M1-M2. The learned counsel argued that, the defendants gave the claimant fair hearing and opportunity to cross-examine his accusers and to field witnesses, if he had.

The learned counsel argued that, the claimant did not show to Court that, he drew the attention of the panel to any of the said witnesses and the Panel refused to hear them or locked them out. The learned counsel submitted that, the defendants complied with the procedure in terminating the appointment and that; the claimant even admitted he was heard in relation to the complaints of gross misconducts against him. Thus, reply in respect of issue 1 ended and the learned counsel moved to issue 2.

On issue 2, the learned counsel replied that, because most members of the panels were members of the claimant’s union before the crisis that denied them of having a recognised chairman, the matter was taken out of the facts of Haruna v. University of Agriculture [supra] cited by the counsel to the claimant. The learned counsel argued that, since there was not in existence, recognised chairman of the claimant’s union as at the time the panel sat, there was no way the defendants could have appointed a non-existent chairman to be in the panel. The learned counsel on this basis, urged the Court to distinguish the facts of this case from that of the above cited case. Thus, ended reply on issue 2, and the learned counsel moved to issue 3.

On issue 3, the learned counsel argued that, the claimant knew and was informed of all allegations against him; and that, the defendants denied paragraphs 21-31 of the Statement of Facts of the claimant alleging denial of fair hearing. The learned counsel argued further that, the defendants could not be expected to invite the claimant’s witnesses who were not known to them and whose addresses were not made known to them. The learned counsel argued further that, by the admission of the claimant in paragraph 27 of the Statement of Facts that he was confronted with the allegations against him and that he responded, and by the fact that, his dismissal letter showed the concurrence of the events that led to his dismissal, the claimant could not be heard to complain of lack of fair hearing, as fair hearing could not be applied by parties at their comfort but must be based on facts for the Court to be persuaded. On this argument, the learned counsel cited Ogwuche v. BSCSC (2014) 7 NWLR (Pt. 1406) 374 at 393-394, F-E.

The learned counsel argued that, fair hearing lies in the procedure adopted and not in the correctness of the decision and that, the administrative panel does not need to formulate a formal charge against the claimant to succeed. The learned counsel argued that, it was enough, once the claimant was made aware of the allegations against him and given opportunity to be heard. The learned counsel cited Arobeke v. NELMC (2018) 5 NWLR (Pt. 1613) 383 and UBA Plc v. Oranuba (2014) 2 NWLR (Pt. 1390) 1 at 36. The learned counsel submitted that, by dint of these authorities, it is clear that the complaints of the claimant on denial of fair hearing cannot hold. The learned counsel argued that, the claimant was given fair hearing by being informed of the allegations against him and that, whether or not he cross-examined those who testified against him goes to no issue. The learned counsel cited Eigbe v. NUT (2008) 5 NWLR (Pt. 1081) 604 at 623-624, E-A, D-E and Musa v. Fed. Min., Tourism, Culture & NAT Orientation (2013) 10 NWLR (Pt. 1363) 556 at 583, E-H.

On issue 4, the learned counsel argued further that in UBA v. Oranuba [supra] 42, B-F, it was held that, it would not matter whether the employee was first prosecuted for criminal allegations before dismissal, once the court is satisfied that the employee was given fair hearing by confronting him with the allegations and affording him the opportunity of being heard. The learned counsel also cited Eze v. Spring Bank Plc (2011) 18 NWLR (Pt. 113) at 134-135, D-F and submitted that, in it, the Supreme Court explained that Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 did not lay down the principle that, once a crime is detected, an employer cannot dismiss an employee unless he is tried and convicted first. The learned counsel submitted that, the allegations on which the claimant was dismissed pursuant to Chapter 11.9 of the CSSS constituted gross misconducts under chapter 11.11(x) and (ix). Reply on issue 4 was thus ended and the learned counsel moved to the last issue.

On issue 5, the last issue, the learned counsel, citing Kato v. CBN (1991) 9 NWLR (Pt. 214) 126, submitted that, sentiment has no place in issue of law. The learned counsel argued that, the defendants complied with procedure in dismissing the claimant and afforded him fair hearing thereby and that, the competent authority, which could dismiss him, the Council, in this case, did, as exemplified in his letter of dismissal. The learned counsel argued that, the Council had the discretion to appropriate punishment to the claimant notwithstanding the recommendation of the investigation panel. The learned counsel argued that, the claimant could not therefore complain against the discretion of the Council to dismiss him. The learned counsel argued that, by virtue of Chapter 11 of the CSSS, dismissal is the appropriate punishment for the allegations against the claimant, once proved. Finally, the learned counsel urged the Court to dismiss the suit.

Thus ended the reply on points of law. The next thing is to give my decision. But before doing this, I wish to state unequivocally that I have carefully read all the processes in the case file and fully digested the relevant ones. I have also taken the evidence on record alongside the final written addresses. I have consulted the significant authorities cited on issues. I now give my decision and the reasons for the decision.

COURT’S DECISION

First of all, let me address a preliminary issue in this case: the issue of the Motion on Notice challenging the competence of this action for not fulfilling conditions precedent before its commencement. The defendants, by a Motion on Notice dated 31^st April 2018 and filed 25^th April 2018 raised this issue. However, by the agreement of counsel to the parties on 26^th April 2018, during continuation of trial, the issue was fixed for the address stage. The defendant, who was foreclosed from filing final written address, is deemed not to have brought this issue up. It follows that; this objection was not moved at all, at any stage of the proceedings till the case was adjourned for judgment.

I could have taken the pains to recall counsel to the parties to address me on this issue, being that, it is jurisdictional point. But I decline for two reasons: In the first place, the issue is not one of substantive jurisdiction but, procedural, and therefore waivable, and not having been moved, it is deemed waived; and in the second place, it is an issue which needs evidence to decide, meaning that, counsel to parties must just formally present the issue before the Court, and to do this, I must have to recall counsel to move the motion. To now recall counsel under this situation, where counsel had been foreclosed from filing final written address because the claimant filed his first, would amount to encouraging delinquency/tardiness in prosecution of cases. Parties/counsel must bear the consequences of their tardiness. The issue is therefore deemed waived/abandoned, not withstanding that it was raised by motion – Mansour v. Carnco Foods (Nigeria) Limited (2014) LPELR-22443 (CA) 20, B-D and Fenton Keynes Finance Ltd v. Transply Nigeria Limited (2010) LPELR-4156 (CA) 15, C-D. The motion, not having been moved, is accordingly struck out – see Eshenake v. Gbinije & Ors (2005) LPELR-7541 (CA) 23, C-E.

I now come to the issues canvassed in the final written addresses of parties. The counsel to the claimant distilled five issues for the determination of this case. I consider these issues, though, all relevant, but prolix. The defendants did not formulate any issue because they only have reply on points of law legally before the Court. In my own estimation, I think three of these issues, if reformulated, are enough to take care of the case. I proceed to re-formulate them thus:

Whether the defendants complied with the provisions of the extant statutes and conditions of service of the claimant in dismissing the claimant?
Whether the defendant are in breach of the right of the claimant to fair hearing in the proceedings leading to his dismissal; and
Whether the allegations against the claimant are criminal in nature and if, whether the defendants have the vires to try the claimant on these allegations, find him guilty and dismiss him?

These issues are intertwined. I will consider them together. In the main, four points were raised in the three issue distilled above in the arguments of counsel. The first is that, the Chairman or President of the claimant’s Union was not included in the initial panel that heard the case of the claimant as required by law. The second is that, the defendants did not generally comply with the procedure and law in dismissing the claimant. The third is that, arising from the non-compliance with procedure, the claimant’s right of fair hearing was breached. And the fourth is that, because all the allegations against the claimant bordered on crimes, the claimant was supposed to be tried in a regular court and that, only after securing conviction, could he be legally dismissed. I think before progress could be made on all the three issues as formulated above and the four points arising therefrom, since all dovetail into non-compliance with procedures specified by law, it is important that the relevant provisions of the main statute that fall for consideration – That is, the Federal University of Agriculture Act [FUAA] – be properly construed and given their true purports.

I take sections 17(1) and 18(1)-(4) of the FUAA first. Now, section 17(1)(a)-(c) of the FUAA provides thus:

“17 (1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University, other than Vice-Chancellor, should be removed from office or employment on the ground of misconduct or inability to perform the functions of his office or employment, the Council shall –

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

(b) afford him an opportunity of making representations in person on the matter;

(c) appoint a Staff Disciplinary Committee, and if the Council, after considering the report of the Staff Disciplinary Committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.”

Whereas, section 18(1)-(4) of the FUAA provides that:

(1) “The Vice-Chancellor or Senate shall constitute an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff.

(2) The Investigation Panel shall include the President or the Chairman of the union to which the staff being investigated belongs.

(3) The Vice-Chancellor shall constitute a Staff Disciplinary Committee which shall consist of such members of the Senate as he may determine, to consider the report of the Investigation Panel.

(4) The report and recommendations of the Staff Disciplinary Committee shall be forwarded to the Council for consideration and decision.”

A community construction of sections 17(1)(a)-(c) and 18(1)-(4) of the FUAA, which are the relevant sections to this dispute, would reveal that, there are five different phases of deliberations/procedures to be carried out before a staff of the categories in issue could be lawfully removed. To these categories the claimant falls. Surprisingly, Chapter 11.2 of the CSSS interpreted the provisions of sections 17(1)(a)-(c) and (18)(1)-(4) of the FUAA, and came to the conclusion that they create only three layers or three phases of the procedures to remove a staff. Thus, there is a conflict between sections 17(1)(a)-(c) and 18(1)-(4). This has, in a way, engendered a misconception, which has reflected in the presentation of the cases of parties and arguments of counsel in this dispute. The CSSS, being a subsidiary legislation, gives way to the FUAA, an Act of parliament, in case of conflict – see Ebebi & Ors. v. Denwigwe & Ors. (2011) LPELR-4909 (CA) 27-28, F-C. The correct interpretation of these provisions is that, two procedural phases are to be set up by the Vice-Chancellor under section 18(1)-(4) of the FUAA and three phases by the Council under section 17(1)(a)-(c) of FUAA. Once a complaint or petition comes to the Vice-Chancellor under section 18(1), he mechanically performs two functions and does not exercise any discretion. The two phases under section 18(1) of FUAA are: s/he sets up the Investigation Panel, and the Staff Disciplinary Committee to establish whether a prima facie case had been established against a staff.

The report and recommendations of the Disciplinary Committee set up by the Vice-Chancellor is sent to the Council for consideration and decision. The consideration and decision of the Council on the report sent to it constitutes the first phase at the Council level. Thus, the Council would first determine whether ground exists for removing the person from the report submitted to it. After deciding that ground exits, this activates the Council to take two other further separate steps or constitute two separates bodies under section 17(1)(c) of the FUAA: Appointing another Staff Disciplinary Committee, and secondly, it would sit by itself, as a body, to consider the Report of the Staff Disciplinary Committee it appointed by itself, and if satisfied that the person be removed, such person would then be removed by an instrument in writing signed on its direction. Thus, the Council, as a body, acts twice while a Committee of its acts once, making altogether, three phases at the Council.

It could be seen clearly now that the cumulative procedures for removal of a staff are in five phases and not three. Chapter 11.2 of the CSSS omitted the Council at the initial step by which the Council determines that ground exits for removal and second phase by which the Council considers the report of its Committee and apportion appropriate and final decision [inclusive of punishment]. From the tenor of section 18(1) & (4), it is clear that, it is from the report of the Staff Disciplinary Committee constituted by the Vice-Chancellor that, the Council forms its opinion that it appears to it that ground exits for the removal of the person. If it does not appear to it that ground exists for the person to be removed after studying the report of the Disciplinary Committee constituted by the Vice-Chancellor, the matter logically ends there. The person is left to be. But once it appears to it that the person be removed, it goes on to appoint a Staff Disciplinary Committee. But it would appear that the Council, under section 17(1) could also independently initiate removal from office without recourse to the Vice-Chancellor, if it appears to it, from information derived from another source other than the Staff Disciplinary Committee constituted by the Vice-Chancellor, provided it follows the laid down procedures under section 17(1)(a)-(c) of the FUAA. The procedure enumerated under section 17(1)(a)-(c) seemed to be self-executing while that under section 18(1)-(4) is not.

The purport of section 18(1)-(4) of the FUAA would therefore seem to suggest that, the Vice-Chancellor, when s/he initiates procedure for removal, could not complete it without recourse to the Council. That underlies the reason why there are two separate Staff Disciplinary Committees – one constituted by the Vice-Chancellor and the other by the Council. That also underpins the reason why the Council via another Staff Disciplinary Committee appointed by itself, conducts another hearing. In any case, it is very clear from the nature of functions to be performed by the Investigation Panel and the Staff Disciplinary Committee set up by the Vice-Chancellor that their works are inchoate: just to determine the existence or otherwise of prima facie case; and thereafter hand over to another body to conduct the real trial. Thus, the second Staff Disciplinary Committee appointed by the Council would take representations from the person to be removed. Otherwise, there would not have been the need to carry out another trial. It would even appear that the real trial, where the accused is to be given full fair hearing, is at the level of the Staff Disciplinary Committee appointed by the Council; since at the level of the two bodies constituted by the Vice-Chancellor, everything is limited to mere investigation to determine whether a prima facie case is established against the suspect. This is similar to a fact-finding exercise, wherein the person suspected may or may not be invited and if invited, it would be for the purpose of fact-finding and not as an accused person.

That my interpretation is correct, is plainly shown by the fact that, no specific provision is made for appearance of the suspect before the two bodies constituted by the Vice-Chancellor whereas, section 17(1)(a) & (b) of the FUAA mandated that the accused be given notice of the reasons for his trial and be afforded the opportunity of making representation in person on the matter. It could be seen plainly that the real trial is at this level. Section 18(3) specifically provided that all the members of the Staff Disciplinary Committee to be constituted by the Vice-Chancellor must be picked from members of the Senate whereas, this limitation is not placed on the Council in the appointment of another Staff Disciplinary Committee, presumably from amongst itself.

This is so, because, a distinction must be drawn between the words, “constitute” and “appoint”, used in the two different sections and the clear fact that, the Vice-Chancellor is a single individual, while the Council is a composite body. So, the Vice-Chancellor cannot constitute a committee from himself while the Council, being a composite body, could appoint a committee from amongst itself. This is definitely to ensure that the same set of persons under the same authority do not constitute these two separate disciplinary bodies. But when the report of the Staff Disciplinary Committee appointed by the Council gets to the Council, the Council sits as a body and not as a Committee, to consider the report of its Disciplinary Committee appointed from amongst itself. After considering the report, if it is satisfied that the accused be removed, the Council may so remove him by an instrument in writing signed on its directions.

Thus, it is not the recommendations of the first Disciplinary Committee constituted by the Vice-Chancellor that the Council would consider to arrive at its decision, as suggested by the CSSS. It is the report of its own Staff Disciplinary Committee that it instead considers. The report of the first Disciplinary Committee constituted by the Vice-Chancellor is simply and only for two purposes: for the Council to form an opinion whether or not it appears to it that the person be removed, and secondly, to enable the Council cull from the report, the reasons or grounds for setting in motion the procedure for removal of the person. Once this opinion is formed, and the offences or misconducts alleged against the accused are digested from the report and these are communicated to the accused person with the caveat that s/he has a right to make representation in person on the matter: that is the end of that report. Another full-fledged inquiry of a higher pedestal [real trial] must be conducted, divorced from the investigation conducted by the Investigation Panel convoked by the Vice-Chancellor. That this is the intendment is very clear from the fact that the Investigation Panel convoked by the Vice-Chancellor and the Disciplinary Committee constituted by the Vice-Chancellor to review the work of the Investigation Panel and render a report are only to establish a prima facie case.

The report of the Committee constituted by the Vice-Chancellor is like the police investigation report upon which a charge is culled and filed for the proper prosecution or trial that comes up later in courts or for more serious offences, it is like the legal advice from a Ministry of Justice establishing prima facie case upon which formal information/charge and proof of evidence are drafted for filing in courts for proper trial, where the issue of fair hearing becomes preeminent. At the stage of establishing prima facie, requirement of fair hearing is always minimal such as those required under the Judges rules for taking the confessional statements of suspects, by taking the suspects to senior police officers, who did not partake in the investigation, to confirm the confession again, which rules are not mandatory but merely desirable and only dictated by prudence.

And I think the phrase “prima facie” has its ordinary legal meaning in the context: that is, there is ground to proceed. It is not the same as proof, which comes later when the court is to find whether the accused is guilty or not. That is why, under section 18(1)-(4), apart from the need to coopt the Chairman of the claimant’s union into the Investigation Panel, no other provision or elaborate provision is made to secure fair hearing because, no trial is conducted at that stage. This has significant implications. It would be noted that, it is after the draft of the misconducts alleged and service on the person to be removed that the Council appoints the second Disciplinary Committee. The second Disciplinary Committee appointed by the Council would conduct a trial by itself and render its report to the Council. The recommendations of the second Staff Disciplinary Committee appointed by the Council itself are not final too, but the decision of the Council on the report is final.

So, it would be against procedure for the Disciplinary Committee appointed by the Council to simply base its report on a review of the report of the Disciplinary Committee convoked by the Vice-Chancellor without conducting a trial or inquiry as mandated by law or without intrinsic evidence that trial was conducted by it. It had no business reviewing the reports of the Investigation Panel or that of the first Disciplinary Committee constituted by the Vice-Chancellor as suggested by the CSSS. Its business is to conduct independent trial and come up with its decision/recommendations without reference to or influence from the report of the Staff Disciplinary Committee constituted by the Vice-Chancellor. In the same way, it is not the business of the Investigation Panel and Disciplinary Committee convoked by the Vice-Chancellor to apportion punishments to staff investigated. Their business is limited to establishing whether or not a prima facie case is made out. So, terms of reference Nos. iv and v of Exhibit K1-15 and Nos. 4 and 5 of Exhibit D4, are totally ultra vires by virtue of section 18(1) of the FUAA.

This forms a bird’s-eye view of composite construction of sections 17(1)(a)-(c) and 18(1)-(4) of the FUAA. Let us now see how the defendants complied with these provisions. On the point that the Chairman of the claimant was not included in the very first panel as required by law, the learned counsel to the defendants conceded this fact but, with a rider that, section 28(4) of the FUAA permits the defendants to bypass this requirements in the event that it would be unreasonable to include such a statutory member in a situation as the instant one, where internal strife did not allow ASUU, the claimant’s union to have a leader in the University. For this reason, the learned counsel argued that Haruna v. University of Agriculture, Makurdi [supra] cited by the learned counsel to the claimant would not apply.

Good enough, this authority is based on exactly the same statute as the one falling for consideration here, and on exactly the same provisions: that is, the Federal Universities of Agriculture Decree No. 48, 1992 [now Act], sections 15 and 16 therein, which are now sections 17 and 18. I disagree with the views expressed by the learned counsel to the defendants because; the relevant facts of that case and the instant one are very similar. In that case, the Minister of Agriculture performed the function of dismissal assigned to Council because, there was no Council in place. Secondly, the Chairman of the plaintiff’s Union [ASUU] was also excluded in the deliberation of the Investigation Panel. The Court held that these omissions were fatal to the procedural laws governing dismissal of a staff of the plaintiff’s cadre and the dismissal was set aside – see p. 44-45, C-A Haruna v. Federal University of Agriculture, Makurdi [supra] also in (2004) LPELR-5899 (CA). Though, I take note that the issue of section 28(4) was not raised therein but, it is significant that the Court held that, failure to include the Chairman of the plaintiff’s union and the usurpation of the functions of the Council by the Minister were fatal in the procedure adopted to dismiss the plaintiff therein. This is exactly the same with the situation here with regard to the omission of the Chairman of the claimant’s union in the transactions of the Investigation Panel. The decision was that these provisions could not be waived and that they were in absolute terms – see p. 44-45 [supra].

It therefore becomes necessary to examine the provisions of the FUAA on which the justification of the procedure adopted in the instant case revolved: that is, the provisions dealing with the issue of non-inclusion of the Chairman of the claimant in the Investigation Panel constituted by the Vice-Chancellor. I proceed to examine the provisions. Now, section 28(4) of the FUAA provides:

“The validity of any proceedings of any body established in pursuance of this Act shall not be affected by any vacancy in the membership of the body, or by any defect in the appointment of a member of the body or by reason that any person not entitled to do so took part in the proceedings.”

Whereas, section 18(1)-(2) of the FUAA provides that:

“18. (1) The Vice-Chancellor or Senate shall constitute an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff

(2) The Investigation Panel shall include the President or the Chairman of the union to which the staff being investigated belongs.”

It would be observed that section 18(1) & (2) makes it mandatory for the Vice-Chancellor to appoint an Investigation Panel, which must include the Chairman of the union to which the person being investigated belongs. This is repeated by Chapter 11.2(1) of the CSSS. The implication is that, this requirement that the Chairman of the Union to which the suspect belongs, be included, is mandatory and cannot be negotiated or ignored. It is a duty imposed by statute unlike the Judges’ rule derived from practice. It is a duty to be performed. If sections 18(1) & (2) and 28(4) of the FUAA are construed together, it would be apparent that two are contrary to each other and cannot both fulfill themselves, more so, in view of the fact that, both used the word “shall” as the operative verb. It leads to an investigation of the meaning of “shall” as used in both instances. If it is taken that section 28(4) whittles down the effect of section 18(1) & (2), it would suggest that the word “shall” in section 18(1) & (2) might be merely directory – see INEC & Ors v. Iniama & Ors (2007) LPELR-8063 (CA) 24-25, A-A. And if this is so, the implication is that Hurana v. Federal University of Agriculture [supra], on which the claimant’s counsel relied, and which did not take cognisance of section 28(4) of the FUAA, might have, with the greatest respect to the Court of Appeal, been decided per incuriam. But whether or not it was decided per incuriam, the principle of law is that, a lower court cannot depart from a binding decision of a higher court under the doctrine of stare decisis. It must obey the decision of the higher court, notwithstanding its opinion – see Onyemaizu v. Ojiako & Anor. (2000) LPELR-10373 (CA) 36-37, E-F. I have earlier held that the facts of the instant case and that of Haruna v. Federal University of Agricluture, Makurdi are similar, so, I am bound by precedent laid down there, notwithstanding that the decision did not take cognisance of section 28(4) of the FUAA. I have not been able to find another authority from either the Supreme Court or more recent authority from the Court of Appeal on this issue. I remained bound by Haruna v. Federal University of Agricluture, Makurdi [supra], whether or not it was arrived at per incuriam.

However, it is even my view that, the decision in Haruna v. Univsersity of Agriculture, Makurdi [supra] remains valid by itself and binding on this Court apart from the force of stare decisis, notwithstanding that it did not take cognisance of section 28(4) of the FUAA. The decision is valid for other reasons. We must look at the surrounding circumstances of the provisions of section 18(1) & (2). Section 18(1) & (2) of the FUAA, provides for the inclusion of the Chairman of the claimant’s union in the deliberations of the Panel. This is to protect the interest of the staff being investigated. It imposes a statutory duty on the defendants and for the benefits of the claimant. It imports the doctrine of fair hearing and natural justice into the proceedings of the Panel in issue. In effect, it confers a right on the person being investigated and this right cannot just be set aside with a mere wave of the hand. The “shall” used twice in the two provisions, is to secure this right guaranteed otherwise, the word “shall” would not have been used twice. It is to be presumed that the legislature used no word in vain. By the use of the word “shall” twice in the section, the legislature laid emphasis on the mandatoriness of the need to make the leader of the claimant’s union a member of the Investigation Panel. The word “shall” therefore imposed an obligation on the Vice-Chancellor to ensure the protection of this right – Adams v. Umar & Ors (2008) LPELR-3591 (CA) 54-55, F-E.

It is in this sense that Haruna v. Federal University of Agriculture [supra] interpreted these provisions and came to the conclusion that they are mandatory. Therefore, the “shall” as employed therein connotes compulsion. This is because when a statute confers a right on a citizen and another provision strives to take such right away, the right infringing provision must be construed strictly and narrowly – see FCDA v. Sule (1994) LPELR-1263 (SC) 30-32, E-A. Section 28(4), which attempts to take away the right granted the staff being investigated, must therefore be narrowly construed. If a strict construction of the provision of section 28(4) the FUAA is employed, the “shall” as employed therein, is merely directory and not obligatory since, it imposes no duty or obligation. Besides, it would even be observed that, section 28(4) says that it is the validity of the proceedings of the body that would not be affected by such vacancy in the body and not that, the composition would be valid.

This can be likened to proceedings of a court well conducted without jurisdiction on the part of the court. Such proceedings, however well conducted, would be a nullity because of the lack of jurisdiction and not because of any inherent defect in the proceedings. In like manner, the composition of the Investigation Panel, which omitted the Chairman of the claimant’s union is defective and lacks the jurisdiction to conduct any investigation, thus, the Court cannot take cognisance of any such investigation conducted in breach of the mandatory provisions of section 18(1) & (2) of the FUAA. In this wise, the Court did not decide on the validity of the proceedings but could not just take cognisance of them, since the Panel lacks jurisdiction to carry on the proceedings by virtue compositional incompetence. And I so hold.

The argument of the learned counsel to the defendants that, the provisions were not complied with simply because there was crisis in the claimant’s union at the material time cannot hold. This is because, the provision for suspension of staff exists in the FUAA – see section 17(3) of the FUAA. This is to be utilized in a situation, as in the instant case, to keep the claimant out of the school system pending when the Panel of Investigation could be properly set up. This tallies with the views of the Court of Appeal in Haruna v. Federal University of Agriculture [supra] when it held that the Minister could not usurp the functions of the Council and that the usurpation and the absence of the Chairman of the plaintiff’s union in the Investigation Panel made the dismissal unlawful. Otherwise, the intendment of the provision that the Chairman of the claimant’s union be coopted would be a mere paper tiger without the teeth to bite and it would not have been necessary at all, to insert it into the FUAA. This would be against the grain that the legislature does not use words in vain. And I do not think that is the intendment of the provision.

This therefore reinforces the bindingness of Haruna v, Federal University of Agriculture [supra] and that it is fully applicable in the instant case, contrary to the arguments of the learned counsel to the defendants. The facts of the case and the instant one are very much similar, as I have earlier found. The requirement for inclusion of the leader of the claimant’s union is for purposes of securing fair play and to eschew bias or vendetta. In short, it is to ensure fairness in the investigation of the allegations against the claimant. In a way, the provision springs from section 36 of the 1999 Constitution, which guarantees fundamental right to fair hearing and natural justice, and thus cannot therefore be waived aside like that. While fair hearing might not be fully applicable to the Investigation of the Panel, the need to include the claimant’s chairman cannot be waived, being a statutory requirement that imposed duty on the defendant and conferred right on the claimant. Its requirement is exterior to the deliberations of the Panel and failure in that respect is fatal. It has superior constitutional flavour of very significant dimensions, which cannot be taken away by a mere inconsistent provision in an Act.

Now, we go to the other aspects of the case. The claimant had pleaded that the defendants did not comply at all with all the mandatory provisions of the relevant statutes and the CSSS and his counsel had marshaled arguments in support. The defendants had pleaded to resist these and the defence counsel canvassed arguments in like manner. The first port of call is the Report of the Investigation Panel that kick-started the whole process. The defendants tendered Exhibit DW4, the instrument by which the Investigation Panel was set up. The instrument has the following introductory sentence:

“Following allegations of extortion of money and other corruption charges leveled against Mr. Emelike Ukeje, Engr, Emma Nwaka, Engr. Ekwe, Engr. C.K. Okoro, Alamba Chuks C, Ujah Promise and Engr. Ironkwe all teaching staff of the Centre for Continuing Education (CEC), the Vice-Chancellor has approved the constitution of a Panel to investigate the matter…”

The terms of reference are:

To determine the veracity or otherwise of the allegation of extortion of money from students, collecting of money from students to upgrade examination scores and collection of illegal charges for project, project defense and entertainment.
To identify other staff/persons so involved.
To invite staff/students who may have useful information to give to the Panel.
To recommend appropriate sanctions for the staff/persons found culpable.
To recommend ways of forestalling such occurrences in the CEC.

From the tenor of section 18(1) of the FUAA, it is clear that the Vice-Chancellor could only set up an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff. The implication of this is that, there must be in existence allegation against a member of staff, on which the Investigation Panel must be set up to examine if a prima facie case is established against such staff. It is not the other way round. This becomes more so, in the instant case that the claimant raised the issue of bias and persecution. And incidentally, it is in the course of this extra voyage that the name of the claimant, which did not originally feature was mentioned. But, I shall not give any premium to this because; there is no evidence that the claimant raised the issue of bias or persecution against the Panel when he appeared before it – Ukah & Ors v. Onyia & Ors. (2016) LPELR-40025 (CA) 27, A-C. This is more so because:

“…allegation of bias cannot be founded on the judgment itself; rather, it must be extrinsic to the judgment of the court…a complaint of bias or denial of fair hearing has to be strictly proved and shall not be based on mere conjecture, speculation, or the subjective personal views of party or his counsel.”

It is therefore too late in the day for the claimant who had appeared before the Panel without raising these issues to attempt to raise them in his pleading for the first time. Be that as it may, the crux is that, it is before this very Investigation Panel that it seemed, the claimant clearly admitted that he appeared; because the claimant pleaded that the Panel interacted with him on the issue of extortion of money and later asked him to suggest ways of surmounting the challenges faced by the Continuing Education Centre. It would appear too, that this is the only body, amongst the bodies that investigated the allegations, that interacted with the people affected generally – see Exhibit K1-15, particularly at paragraph 3.0 – Mode of Operation. It is clear from a perusal of Exhibit DW6, which is the Report of the Council Committee on staff Discipline, the next body that is mandated by compulsion to give notice to the accused of the reasons for the proposal to remove him and to afford him the opportunity of making representation in person on the matter.

Nevertheless, I have earlier held that section 17(1) of the FUAA, is the section that actually grants full right of any person to be removed to fair hearing. So, like I held earlier, the function of the Investigation Panel is just that of fact-finding for the purpose of rendering opinion on whether prima facie case had been established. But for the Disciplinary Committee appointed by the Council, it must comply strictly with the provisions of section 17(1)(a) & (b) of the FUAA, which guaranteed extensive fair hearing. Did the defendants adhere to these in the instant case? Paragraph 3.00 of the Exhibit DW6 comes handy. It says:

“The Committee studied the report of the Investigation Panel and University Staff Disciplinary Committee on Alleged extortion of money from the students of Continuing Education Centre (CEC). The Council Committee on Staff Discipline commends the Investigation Panel in particular for its painstaken [sic] and thorough Investigation and aligned itself with the observation and findings out-lined in the reports. However, the Council Committee on Staff Discipline (CCSD) wishes to observe as follows…”

The above quoted paragraph appears to show the method adopted by the Staff Disciplinary Committee appointed by the Council to carry out its assignment. It suggests that it just reviewed the previous reports before it without any evidence that it complied with section 17(1)(a) & (b) thus, fueling the fight that procedure was not followed and that, the claimant was not afforded fair hearing. But careful investigations show that, that is just on a cursory and disjointed examination of the report. A composite perusal suggests otherwise. And the law is that, a composite document must be given holistic construction to arrive at proper interpretation of any part or the whole. Careful perusal of the whole of the contents of Exhibit DW6 reveals otherwise, i.e. that, there was compliance with the provisions of section 17(1)(a)-(b). Paragraph 9.00 (1) & (b) titled “REV. C.E. NWADIGHOHA” shows:

“Many of those accused of result upgrade claimed that they were ordered to do so by Rev. C.E. Nwadighoha. Although there were no documented evidence but a letter written by Mr. Victor Dibie, Mr. Stanley Nwosu and Dr. Mrs. J.A. Nmesirionye were sufficient to conclude that students who did not satisfy graduation requirements were made to graduate. In this regards, the CCSD recommends as follows:

(1) That Rev. C.E. Nwadighoha should be given stern warning for his ignoble role in results manipulation in CEC during his tenure. This conclusion is premised on the interview held between him and Dr. Mrs. J.A. Nmesirionye where the later confronted him with evidence boardering [sic] on students who still had carry-over [sic] when they were graduated.

(2) Rev. C.E. Nwadighoha was found to have done more damage to a Unit of the University yearning for innovative administrative capability with his style of leadership that was based on impunity and total disregard for regulation. It is therefore, advised that Rev. C.E. Nwadighoha should not be appointed into serious administrative position in the University for the next ten (10) years.” [Underlines supplied for emphasis]

From the above, especially the underlined portion, it is clear that the claimant appeared before the Staff Disciplinary Committee appointed by the Council and was confronted with the evidence of the allegations against him and afforded the opportunity of seeing his accuser [at least, the one on whose evidence, the Committee relied on to find the claimant guilty]. Though, the method by which evidence of compliance with section 17(1)(a) & (b) of the FUAA was proved in this instance, leaves much to be desired, as it gives room for some doubt or ambiguity, as to whether it was actually before the Disciplinary Committee appointed by the Council that the interaction actually took place or before the previous Investigation Panel. This is especially so, bearing in mind the introductory paragraph of Exhibit D6, as quoted above, which seems to suggest that the Staff Disciplinary Committee appointed by Council merely reviewed the previous report to reach its decisions. However, I read through the Investigation Panel Report and the report of the Staff Disciplinary Committee appointed by the Vice-Chancellor and could not find any story of interaction between the claimant and the said Dr. Mrs. J.A. Nmesirionye. It means this story was not culled from those sources but from the report of the Committee appointed by the Council. This proves the fact that, the Staff Disciplinary Committee appointed by Council conducted this trial involving the interaction between the claimant and Dr. Mrs. J.A. Mmesirionye and thus, afforded the claimant the opportunity of confronting his accuser face-to-face.

Although, it would have been neater, had a method like that employed in Exhibit K1-15 been used, wherein, a segment was tagged “Mode of Operation”. But nevertheless, the failure to use this method should not detract from the substance of the proceedings nor vitiate the proceedings, as no particular method was prescribed for writing of the report. So far, the message is conveyed and ambiguity avoided, the report stands. This is more so, as the claimant himself had cleared the seemingly doubt created under cross-examination. To put the matter beyond reasonable doubt, the claimant, under cross-examination, admitted quite clearly that he appeared before the Staff Disciplinary Committee appointed by the Council by giving the following answers:

“It is not true that I extorted money and illegally upgraded students’ results. I was invited to face a panel in respect of those allegations. I was also invited to face the Council Disciplinary Committee. The Staff Investigation Panel asked me the way forward for the CEC. I was not asked about extortion of money. The Staff Investigation Panel also asked me the source of money for entertainment of resource [sic] the CEC during project defence. The Council confronted me with the issues of extortion, upgrading of results and other corrupt practices for the first time. They said I was not directly involved but that it was those working under me. And their report exonerated me and only said I should be warned…but the Council did not recommend that I be dismissed.” [Underlining supplied for emphasis]

From the above, it is clear beyond reasonable doubt that, the claimant appeared before the Disciplinary Committee appointed by the Council and was asked questions relating to the grounds on which he was dismissed. It is clear from this too, that, at least, he was invited before he appeared before the Committee or at least, he got information about the proceedings and the date, which enabled him attend. It is also clear from the report of the Staff Disciplinary Committee appointed by the Council that, the claimant was confronted with his accuser, at least, the one whose evidence was used to find him guilty. So, if he did not utilize that opportunity to cross-examine her well, that is his headache. Therefore, the complaint that the Council just based its decision on the report of the Disciplinary Committee constituted by the Vice-Chancellor is obviously unfounded. I also found that it was totally unwarranted the assertion that the Disciplinary Committee appointed by the Council expressed doubt on the guilt of the claimant, rather, it found the claimant guilty and gave its reasons as shown above. I think the claimant had in mind, the Disciplinary Committee constituted by the Vice-Chancellor, which reviewed the work of the Investigation Panel and expressed some reservations on the quality of evidence adduced. But this Panel, as I have held earlier, is just a fact-finding one for the sole purpose of determining the existence or otherwise of a prima facie case.

Taking in the above, I think the defendants satisfied, to a very large extent, the requirements of, at least, section 17(1)(b) of the FUAA. It now remains the complaint that the claimant was not issued with written notice as required by section 17(1)(a). But the claimant himself did not tender or give any evidence [whether oral or documentary] of the means by which he was invited or by which he became aware of the proceedings and the dates, so that, we can see or appreciate at a glance, the non-compliance with section 17(1)(a) of the FUAA. He admitted that he appeared before the said Committee. Hence, the presumption is that he was regularly invited. If he now asserted irregularity in his invitation, he has the burden to prove such irregularity. He who asserts must prove. In this situation, the presumption of regularity arises, and the Court is well justified to presume that a notice was regularly issued until the contrary is proved, notwithstanding that the defendants did not show proof by which means they complied with section 17(1)(a) of he FUAA – see Nduka & Ors v. Sule (2013) LPELR-23629 (CA) 22, A-B; and particularly Shitta-Bay v. Attorney-General of the Federation & Anor. (1998) LPELR-3055 (SC) 54-55, D-G, where the Supreme Court expatiated this doctrine thus:

“Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have ben rightly done. This is expressed in the common law maxim in Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts…”

It is not in dispute that, the claimant appeared before the Staff Disciplinary Committee appointed by the Council. If he appeared, the presumption is that, he must have been given adequate notice in accordance with law. And if issue of adequate notice is been contested, and evidence exists that he appeared before the Committee, he ought then, to give evidence of exactly how he came to be aware of the sitting of the Disciplinary Committee appointed by the Council and the means by which he so became aware. Because by this turn of events, his being invited or notified of the proceedings is no longer in issue, what is in issue is: improper invitation. And if that is the case, the legal presumption favours the defendants. The claimant who asserted the contrary has the burden to prove that he was not properly invited by showing how he was invited and pointing out the impropriety involved. Failing in these, no reasonable tribunal would believe his story that he was not properly invited in accordance with law. I therefore hold that the claimant was properly invited and given adequate opportunity of being heard in accordance with section 17(1)(a) & (b) of the FUAA.

Nevertheless, that is not the end of the matter. The fact remains that the claimant also complained of being tried for a criminal offence by a body other than regular courts, and that as such, the trial before the Committees of the defendants is null and void. The defendants countered these and submitted that, the extant position of law is that, it is not compulsory that an employer must first take an employee accused of misconducts bordering on crime to court and secure conviction before the employee could be dismissed, and that, it is sufficient if the accused is confronted with the misconducts in question and given the opportunity to be heard. Both the counsel to the defence and the counsel to the claimant are wrong in the extreme views they both took. None of the positions they took is iron-cast without exceptions – that is the general nature of legal principles and doctrines. It all depends on what transpired from the time the misconducts in issue were allegedly committed by the employee, the nature of trial at the domestic forum and the conducts or answers of the employee to the allegations at this forum and sometimes, the nature or quality of the evidence against the accused employee – see Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR-959 (SC) 34-35, E-A; Arinze v. FBN Ltd (2004) 11, A-E; and Eigbe v. NUT (2007) LPELR-8310 (CA) pp. 20-21, [no further details provided].

These three authorities, the first two, from the Supreme Court, and the third, from the Court of Appeal represent the current state of the law on the right of employer to dismiss an employee notwithstanding that such employee is accused of commission of conducts that amount to crimes, when this right can be exercised and how; and that, the correct exercise of this right by an employer would not amount to violation of the right to fair hearing nor constitute usurpation of the powers of courts. But it is significant to note that Arinze v. FBN [supra] deals with the right of an employer under common law and not that of an employer in an employment that enjoys statutory flavour. Nevertheless, the three authorities have established beyond per adventure that, once, an employee admits the commission of allegations bordering on crimes or, if there is incontrovertible and irresistible evidence against such employee, the employer, whether under common law or employment clothed with statutory flavour, can go ahead to dismiss such employee, provided adequate notice of the allegations against him with particularities were served on him and opportunity was afforded him to respond. They held that dismissal in such situations would not infringe the right to fair hearing guaranteed by the Constitution nor usurp the powers of courts to try criminal offences as guaranteed by the Constitution.

Now, the claimant herein was accused of allegations, most of which dovetail into crimes – extortion, upgrading of marks and alteration of results. I have held that, in the circumstance of this case, the presumption of regularity applied and that the claimant was afforded the opportunity to be heard and to confront his accuser. In a nutshell, I held that the requirements of section 17(1) & (b) of the FUAA had been complied with. The logical thing would have been to hold next that the dismissal, even though, based on allegations of crimes, was justified. But the mere fact that the defendants fully complied with the provisions of section 17(1)(a) & (b) of the FUAA would not end the issue of dismissal based on allegations of crime by virtue of the three authorities cited above. All the tests, as prescribed in the above authorities, must cumulatively be passed before the dismissal could be given imprimatur by courts of law. In the instant case, there is no evidence that the claimant admitted, in an unequivocal manner, the commission of the offences in issue – rather, what is apparent to the Court is that, the claimant denied these allegations or at any rate, the various reports did not indicate clearly that the claimant admitted the allegations.

Secondly, it is not clear from the reports, especially, exhibit D6, the nature of the evidence with which the claimant was confronted by his accuser, whether the evidence was incontrovertible or not, nor is it clear too, the response of the claimant to the confrontation, whether he admitted directly or by conduct or denied the evidence flatly. This is more so, when the report admitted that, most of the pieces of evidence against the claimant were not documentary evidence. It means that, there was no incontrovertible evidence against the claimant. It is also clear that, the claimant was not shown to have unequivocally admitted the commission of the misconducts in issue before the panel or committee. It simply means that, there is the need for proper trial before a competent court of law, where the guilt of the claimant could be proved beyond reasonable doubt. In such a situation, the defendants cannot take advantage of the leeway provided by the authorities in issue to dismiss the claimant on allegations of crime. The employee must be taken to court and conviction secured before he could be lawfully dismissed.

Having reached this point, the logical thing would have been to ordinarily hold that the dismissal was null and void but, I do not think the circumstances of this case permits that. This, I say, because of the contents of Exhibit M1-2 [the dismissal letter]. At paragraph 4, it states:

“The report was forwarded to the Council Committee on Staff Discipline and the Committee also found you guilty of all the charges and observed that you as Director of the Centre have done more damage to a Unit of the University that was yearning for innovative administrative capacity because your style of leadership was based on impunity and total disregard for regulation.” [Underline supplied for emphasis]

From the above, it is clear that the claimant was not only dismissed on the allegations of crime but also on acute lack of administrative efficiency leading to impunity and disregard of regulations. This is coming from the Council, which has the authority to dismiss the claimant and based on the report submitted to it by its Committee. This finding of the Council lifted from paragraph 9.00 – (2) of Exhibit DW6 [Report of the Disciplinary Committee appointed by Council] is covered by section 17(1), which states that “…inability to perform the functions of his office or employment…” [Underline supplied for emphasis], is one of the grounds on which an employee could be removed. Even if the claimant was not found guilty of all the criminal misconducts alleged, the fact is incontrovertible that, under the claimant’s tenure, all sorts of atrocities and irregularities happened in a place the claimant superintended over, showing clearly humongous lack of administrative wherewithal on the part of the claimant. The implication is that, the claimant lacked requisite administrative capacity for the office and was thus, unfit for the office. This ground alone, without more, is sufficient to ground the removal or dismissal of the claimant. The argument of the claimant that, because he was not recommended for dismissal, the dismissal was wrong cannot hold. Rather, what matters is, whether ground had been established for his dismissal and the Council adopted this to dismiss him.

It is totally at the discretion of the Council to determine the appropriate sanction to be meted on an employee, provided the offence committed and the punishment apportioned are commensurate with the sanction grid provided in the CSSS and the FUAA; and in this case, I have found that section 17(1) of the FUAA provides a sanction grid that corresponds with the removal or dismissal of the claimant for the gross misconduct of total lack of administrative competence charged. The section says “…inability to perform the functions of his office or employment…” is a veritable ground for removal. And likewise, Chapter 11.11 xiii of the CSSS makes “proven case of gross incompetence in the performance of duties” specie of gross misconduct with the sanction grid of dismissal. Therefore, the argument that Exhibit M1-2 [the letter of dismissal] is in conflict with Exhibit D6, which recommended warning, and as such, issued without authority, is grossly misconceived. In the same manner, the argument of the learned counsel to the claimant that, it was perplexing that the claimant was dismissed, even when the Council found fault with the report of the Disciplinary Committee empaneled by the Vice-Chancellor, which said he should be merely warned, is misplaced.

The learned counsel failed to appreciate the distinction between the Disciplinary Committee empaneled by the Council and the Council as a body. Whereas, it is the Committee appointed by the Council that tries the claimant and recommends sanction, if found culpable. However, it is the Council that decides the final punishment to apportion. And in this, it is not bound by the recommendation of its Disciplinary Committee. The report of the Disciplinary Committee appointed by the Council did not find the claimant innocent but actually found him wanting and recommended that the claimant should be sternly warned in addition to been banned from holding any sensitive office in the University for ten years. And in reviewing the report and recommendations of this Committee, the Council upped the sanction to that of removal. The Council acted quite intra vires its powers; and I so hold. The argument of counsel that it was not the Council that issued his dismissal letter is obviously wrong. There is no evidence that Council was not in existence as at the time he was dismissed so, it must be presumed that the Council indeed ordered his removal as contained in the dismissal letter tendered. And if the claimant wants to puncture this, he must adduce evidence that this supposed illegality was brought to the attention of the Council and its reaction thereto. The claimant sued the Council, and the Council defended this dismissal, how can the claimant claim that the Council was not the one that dismissed him. The mere fact that a new Council replaced the old one would not estop the new Council from considering the report of the Committee and sanctioning the dismissal of the claimant. The Council does not take fresh evidence. It only acts on the Report of its Committee.

All things being equal, the Council, not being bound to accept the recommendations of its Committee, would be justified in dismissing the claimant in the instant case. But all things are not actually equal; as I have found earlier, on the issue of failure to coopt the Chairman of the claimant’s union into the Investigation Panel, as required compulsorily by section 18(2) of the FUAA, which failure is fatal to all the subsequent steps and eventually the dismissal. This is tantamount to failure to meet condition precedent. The dismissal of the claimant is therefore void and of no effect on this ground alone. For this sole reason, the claimant succeeds. The dismissal is hereby set aside. I therefore grant reliefs (C) & (I) alone. All the other reliefs: (A), (B), (D), (E), (F), (G), (H), & (J) fail. Relief (A) fails because the dismissal handed the claimant could be justified under section 17(1) of the FUAA and Chapter 11.11 xiii of the CSSS, had it not been that, the condition precedent set out in section 18(2) of the FUAA was not complied with. So, in effect, Chapter 11.2(i) and 11.19 viii a-d are not applicable to the case of the claimant. Relief (B) is not grantable because there is no evidence on record supporting it and the provisions cited are not even relevant to the case of the claimant.

Relief (D) is not grantable, as explained earlier. The current position of law admits of exceptions and once the exceptions are met, domestic tribunal could dismiss on account of allegations of crime. Relief (E) is not also grantable because, I have held earlier that, the Investigation Panel is not ipso facto required to even listen to the claimant. It dose not have trial responsibility. The requirement of fair play therein is served by the cooption of the Chairman of the claimant’s union into the Investigation Panel. It is just a fact-finding body for the sole purpose of rendering a verdict of whether or not a prima facie case had been established against a staff. The only compulsory requirement is that, the Chairman of the claimant must be present. The same thing goes for relief (F). In addition, no evidence is even produced in support of relief (F) as the claimant accepted under cross-examination that both the Investigation Panel and the Disciplinary Committee appointed by the Council gave him hearing and he did not positively say he applied to the Panel to bring witnesses and was denied the right. He only said his witnesses were locked out. Why? He did not say. It is not the duty of the Court to fish for evidence for him. This type of evidence cannot avail him in the face of denial by the defence. At best, in situations like this, evidence will be at equilibrium; and therefore of no use to either side.

I have even held that, at the Investigation stage, the only requirement of fair hearing attached is the cooption of the Chairman of the claimant’s union as a member of the Investigation Panel and that, the attendance of the claimant might even be dispensed with. Since at that stage, no trial is conducted nor conviction secured: the only thing that is done is to see if a prima facie case is established against the suspect staff. And the record of the Disciplinary Committee appointed by the Council, where the real trial took place, confirmed that the claimant was afforded fair hearing and went further to show that the claimant met face-to-face with his accuser. It was never pleaded nor evidence led that the claimant raised issue of bias and persecution before the Panel or at any point throughout the different phases of the procedures for removal. Hence, having failed to raise those objections at the Panel and the Committee stage of the Council; and having participated at their proceedings, it is too late in the day to plead and lead evidence on them – see Ukah & Ors. v. Onyia & Ors [supra]. So, relief (G) is not grantable, and likewise (H). Relief (J) is not grantable because the claimant has been reinstated and the circumstances of this case do not merit the grant of punitive damages.

On the whole, I repeat, the claimant succeeds and I grant reliefs (C) and (I) alone. All the other reliefs are refused. Consequently, I hereby set aside the dismissal of the claimant by the defendants. The defendants are hereby ordered to reinstate the claimant with payment of his arrears of salaries and allowances from the period of his dismissal on 16^th February 2017 till compliance with this judgment. The judgment is to be obeyed within a grace period of 30 days from today. Failure to obey thereafter would attract an interest of 10% per annum.

I award no cost. Both sides are to bear their costs. Judgment is entered accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA