FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (2012)

FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI

(2012)LCN/5670(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of November, 2012

CA/I/126/2006

RATIO

LABOUR LAW: CATEGORIES OF CONTRACTS OF EMPLOYMENT

In the case of C.B.N. v. Igwillo (2007) 4-5 SC 154 at 172, the Supreme Court identified three categories of contracts of employment. They are (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute or generally said to have statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 549 at 599. The Supreme Court went on to state that an employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. See also Shitta-Bey v. FPSC (1981) 1 SC 41: Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; University of Maiduguri Teaching Hospital Management Board v. Dawa (2007) 16 NWLR (Pt.739) 424. PER CHINWE EUGENIA IYIZOBA, J.C.A.

LABOUR LAW: DUTY OF AN EMPLOYER WISHING TO TERMINATE A CONTRACT OF SERVICE ENJOYING STATUTORY FLAVOUR

The law is well settled that where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant statute or Rules thereunder. Any deviation from the stipulated procedure would render any acts done in respect thereof invalid and liable to the set aside. See: Iderima v. R.S.C.S.C. (2005) All FLLR (285) 431 at 450 D – E; Union Bank of Nig. Ltd. v. Charles Ogboh (1995) 2 NWLR (380) 647 at 669; Ekperokun vs. University of Lagos (1986) 4 NWLR (34) 162; Bamigboye vs. University of Ilorin (1990) 10 NWLR (622) 290 at 320 E – F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

FAIR HEARING: CRITERIA OF FAIR HEARING

The provision of section 36 (1) of the 1999 Constitution, relating to fair hearing, is truly far-reaching. The requirements of fair hearing are ubiquitous.

The basic criteria and attributes of fair hearing have been outlined in Case Law. The rationale of all such binding authorities on the matter is that fair hearing imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict, Ndu v. The State (1990) 7 NWLR (pt.164) 550, 578, adopted by Onu JSC in Ogundoyin v. Adeyemi (2001) 33 WRN 1, 13-14. It, therefore, does not anticipate a standard of justice, which is biased in favour of one party, but prejudices the other. Above all, it is not a technical doctrine, but one of substance, Ogundoyin v. Adeyemi (supra) at pp. 14 – 15, Onu JSC, approvingly adopting the posture which Nnaemeka Agu JSC took in Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 418, 448.

The touchstone is determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard, J. C. C. Inter Ltd. v N.G.I. Ltd. (2002) 4 WRN 91, 104. PER CHIMA CENTUS NWEZE, J.C.A.

FAIR HEARING: REQUIREMENT FOR FAIR HEARING IN A JUDICIAL INQUIRY

In order to be fair, therefore, “hearing” or “opportunity to be heard” in a judicial inquiry, must encompass a party’s right:

(a) To be present all through the proceedings, to hear all the evidence against him/her.

(b) To cross-examine or otherwise confront or contradict all the witnesses that testified against him;

(d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him, except in recognised exceptions

(e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence;

(f) To give evidence by himself, call witnesses, if he likes, and make oral submission either personally or through counsel of his choice, See, Nwanegbo v. Oluwole (2001) 37 WRN 101.; Dawodu v. N. P.C (2000) 6 WRN 116; Durwode v. The State (2001) 7 WRN 50. PER CHIMA CENTUS NWEZE, J.C.A.

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. FEDERAL POLYTECHNIC, EDE

2. THE GOVERNING COUNCIL OF THE FEDERAL POLYTECHNIC EDE

3. DEACON J. S. OKE (ACTING RECTOR FEDERAL POLYTECHNIC EDE

4. MR. SAM BABATOPE (REGISTRAR/SECRETARY TO THE GOVERNING COUNCIL FEDERAL POLYTECHNIC, EDE – Appellant(s)

AND

ALHAJI LUKMAN ADEMOLA OYEBANJI – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Osogbo Division of the Federal High Court delivered on the 25th day of May, 2005 in which the Respondent as Plaintiff in paragraph 23 of his statement of claim at pages 4 – 6 of the record of proceedings claimed as follows:

“(i)Declaration that the purported letter of interdiction of the Plaintiff by the Defendants from the 1st Defendant vide a letter with reference number FPE/SS/294/42 dated the 12th day of May, 2003 is illegal, unconstitutional, ultra vires and null and void as it offends the Plaintiff’s right to fair hearing as guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria 1999.

(ii) An order setting aside the purported letter of interdiction of the Plaintiff from the 1st Defendant’s institution.

(iii) An order re-instating the Plaintiff as a bonafide employee of the 1st Defendant with the full enjoyment of all rights and privileges therein.

(iv) An order of perpetual injunction restraining the Defendants, their servants, agents and/or privies from suspending, terminating and/or dismissing the Plaintiff from the 1st Defendant’s institution.”

The appellants as defendants in the court below filed their statement of defence at pages 17 -21 of the record in which they asked the court to dismiss the plaintiff’s suit.

The Plaintiff/Respondent was a Senior Lecturer in the Department of Accountancy in the employ of the 1st and 2nd Defendants/Appellants. After the release of the first semester 2002/2003 examination results, the 3rd Defendants/Appellants received an anonymous letter written by a group that called itself Concerned Students of the Department of Accounting. In the letter, admitted in evidence as Exhibit “E” they reported a case of alleged academic fraud perpetrated in course No ACC 411: Financial Accounting against the Plaintiff/Respondent who was the course lecturer. The Defendants/Appellants carried out a preliminary investigation and without hearing from the Plaintiff/Respondent dispatched a letter of interdiction dated 12/5/03 Exhibit “B” to the Plaintiff/Respondent. The letter reads:

“AN ALLEGED CASE OF ACADEMIC FRAUD IN COURSE ACC 411: AN INTERDICTION”

You have been alleged to be involved in a case of Academic fraud in course code ACC 411 which you taught last semester. A preliminary investigation conducted at the instance of Management has also established a case of fraud. During investigation, you were alleged to have committed some acts which are inimical to the ethics of your profession. In order to give you a fair hearing and in accordance with the Institution’s procedure, the case is being referred to the appropriate committee for thorough investigation and determination.

However, in accordance with the Public Service Rules and Regulation No. 04403 the case is considered a serious misconduct and as a result, you are hereby (until it is proved to the contrary) interdicted with effect from 12th May, 2003 on half pay, pending the final determination of the case. If the allegation is proved to the contrary, all your rights will be restored.

To this end, you are expected to hand over the courses you are currently handling to your Head of Department and other polytechnic properties, while awaiting further directives from the Staff Profession Ethics Committee of the Institution of which the Secretary is Mr. Adefisoye of Establishment Affairs Division of the Registry.

SGD

Sam. A. Babatope

Registrar

The Defendants/Appellants on that same 12/5/03 served on the plaintiff/respondent a letter of invitation Exhibit “B1” to appear before the Staff Professional Ethics Committee (SPEC) on the 14th of May, 2003. He appeared and was shown Exhibit “F” one of the answer scripts he marked as examiner. Questions were put to him concerning the script. At the end of its sitting, the SPEC came out with its report Exhibit “I” saying that its findings established amongst other things that the Plaintiff/Respondent conspired with one female student, Miss Bolaji Opeseitan to commit academic fraud in course No ACC 411 by allowing the student to re-write the course examination paper at a location other than the examination venue. SPEC recommended the termination of the plaintiff/respondent’s appointment on humanitarian grounds instead of a dismissal. The Expanded Management Committee (which according to the Appellants was performing the duties of the 2nd Defendant/Appellant before the Governing Council was inaugurated) considered the report of SPEC and also came to its own conclusion that the allegation against the Plaintiff/Respondent had been proved. It also issued its own report, Exhibit “J”. The defendants/appellants then invited the Plaintiff/Respondent and gave him the option to resign his appointment or else his appointment would be terminated as the allegation against him which had been proved amounts to gross misconduct. The Plaintiff/Respondent refused to resign and instituted this action claiming the reliefs set out above. The Appellants terminated his appointment by letter dated 31/3/04 Exhibit “D”.

The Plaintiff testified for himself and called no other witness. He tendered five exhibits. Exhibit “A” is his letter of appointment as lecturer 1 in the 1st Defendant institution, Federal Polytechnic Ede. Exhibit “B” is the letter of interdiction. Exhibit “B1” is the letter of invitation to appear before SPEC. Exhibit “C” is the letter of invitation to appear before the Management Committee. Exhibit “D” is the letter of termination of the appointment of the Plaintiff. The Defendants called three witnesses and tendered seven exhibits. Exhibit “E” is the anonymous petition of concerned students. Exhibit “F” is the forged answer script of Miss Bola Opeseitan. Exhibit “G” is the recommendation of the ad hoc committee of four that carried out the initial investigation of the allegation contained in the anonymous petition Exhibit “E”. Exhibit “H” is the internal memo from the Registrar to the Chairman Staff Professional Ethics Committee (SPEC) to carry out further investigation of the alleged fraud. Exhibit “I” is the report of SPEC. Exhibit “J” is the minutes of the meeting of the Expanded Management Committee of 18/3/04 in which the Plaintiff was invited for the last time and advised to resign and he refused. Exhibit “K” is the list of exam scripts collected by lecturers for marking during the period in question. At the close of hearing, both Counsel addressed the court. The learned trial judge then delivered his judgment granting all the four reliefs claimed by the plaintiff as set out above except that the 4th relief was limited to this suit only.

Being dissatisfied with the judgment, the Defendants filed a Notice of Appeal with eight Grounds of Appeal. Briefs were filed and exchanged. Out of the eight Grounds of Appeal the Appellants formulated five issues for determination. They are:

1. Whether the Plaintiff/Respondent was given fair hearing in the determination of his appointment by the Defendants/Appellants. (Grounds I&VII)

2. Whether it was proper for the Learned trial Judge to have overruled himself at the judgment stage and without calling on counsel for further addresses, in respect of the Ruling he delivered on Thursday, 21st day of October 2004 with respect to the relevance or otherwise of provisions of Public Service Rules. (Chapter 11 paragraphs 11206 and 11208), 2000, (Ground III).

3. Whether it is proper in law for the Defendants/Appellants to have entertained Exhibit “E” for the purpose of investigating allegation of examination/academic fraud against the plaintiff/respondent? (Ground II).

4. Whether the trial Judge denied the Defendants/Appellants fair hearing and exhibited bias and malice against them in the course of the trial? (Grounds IV).

5. Whether the trial Judge was wrong in awarding Judgment to the Plaintiff/Respondent in terms of his claims before the court? (Grounds V, VI and VIII).

Learned counsel for the Respondent was of the view that the above Appellants’ issues did not exhaust the issues that call for determination in the suit having regard to the pleadings. Counsel, instead of setting down his issues as additional issues went on to submit that only two issues call for determination in the appeal. The issues are:

1. Whether before the issuance and service of letter of interdiction/suspension, the Plaintiff/Respondent was informed of the allegation against him.

2. If the answer to issue (1) is in the negative, whether the trial judge was wrong in awarding judgment to the Plaintiff/Respondent in terms of his claims before the court.

With all due respect to learned Counsel, issues for determination in an appeal are formulated from the grounds of appeal and not from the pleadings.

Respondent’s issue (1) can conveniently be taken under the Appellants’ issue (1) whether the Plaintiff/Respondent was given fair hearing in the determination of his appointment by the Defendants/Appellants? This issue was formulated from grounds I & VII. Particular (k) of ground 1 at page 68 of the record states:

“It is not necessary to hear the Plaintiff/Respondent before being interdicted pending investigation of the allegation against him”.

I will therefore adopt the Appellants’ issues in the determination of this appeal. All the issues will be treated together because they overlap and are interwoven. The Appellant in arguing the issues adopted arguments in respect of previous issues.

Learned Counsel for the Appellant in his brief submitted that from the totality of the evidence adduced, oral and documentary, the respondent was afforded fair hearing in accordance with the provisions of section 36 (1) of the 1999 Constitution. Counsel argued that a letter of invitation Exhibit “B” was served on the Respondent to appear before SPEC on 14/5/03 and he did appear and he made representations in his defence. By Exhibit “C” the Respondent was invited to appear before the Expanded Management Committee (EMC) and he appeared and was given all opportunity to make his case and he defended himself. Exhibit “E” the anonymous letter was shown to him to read and react to and he did just that. Exhibit “F” the answer script of Miss Bolaji Opeseitan, the subject of the examination fraud was shown to the respondent. He examined same and made comments on his observation. The Respondent admitted in his evidence in chief that he was shown the petition when he went to honour the invitation. He admitted that he attended a second meeting where he was asked to identify the student Bolaji. He admitted that the exam script, the subject of the academic fraud was shown to him and he made his observations thereon. Learned Counsel submitted that in the investigation of the case, the Appellants observed substantially the twin pillars of natural justice of audi alteram partem and nemo judex in causa sua by giving the Respondent adequate opportunity to know the case against him and to answer to it. Relying on the case of National Electric Power Authority V. Akinola Arobieke (2006) and several other authorities, Counsel submitted that the investigating committee will not be required to observe or follow the strict procedure similar to that of a court of law and that even where it refused to give a party an oral hearing at all or the right to cross-examine the witnesses or even where it obtained some of its evidence from other quarters or sources behind the complaint, it will not be regarded as denying him fair hearing or acting contrary to the rules of natural justice. Relying also on Section 12(1) (a) (b) (c); (2) and 3(c) & (d) of the Federal Polytechnic Act Cap 39 LFN, 1990; Counsel submitted that the allegation of academic or examination fraud over which the respondent was sacked is a serious misconduct over which the Appellants have exclusive jurisdiction and power to deal with. Learned Counsel further argued that the suspension of a servant by his master pending investigation of corruption does not necessarily amount to breach of fundamental right to fair hearing. He relied on Arewa v. University of Jos (2000). Counsel submitted that the Respondent’s appointment with the appellants was governed by the Federal Polytechnic Act, Cap 139, Laws of the Federation of Nigeria 1990 and that its determination was based on the Act Sections 12 (1) (a) (b) (c); (2), 3 (c), (4) (5) and 6. Counsel further submitted that it is trite that once the determination of an employee’s appointment was in consonance with the terms of his employment, the employment can be terminated for any reason or for no reason at all. Counsel relied on Exhibit A and the case of Babatunde v. Oshogbo Steel Rolling Ltd (2000) FWLR 1659 at 1672 G-H.

On the issue of the petition against the Respondent being anonymous, learned Counsel submitted that the provisions of Rules 11206 and 11208 of Chapter 11 of the Public Service Rules 2000 do not avail the Respondent as those provisions apply to petitions written by Federal Public servants on matters concerning the officers personally. Counsel argued that the contention of the Respondent which was upheld by the learned trial judge that the appellant had no jurisdiction to act on the contents of the anonymous letter exhibit “E” for the purpose of investigating the alleged fraud against the Respondent implies that the Appellants should have discountenanced it and that it would amount to “law triumphant and justice prostrate” which would be unconstitutional and against the dictates of justice. Counsel relied on Eperokun & Ors v. University of Lagos (1987) 2 QLRN 1 at 43. Counsel submitted that the respondent did not plead or prove the Public service Rules or facts that governed his relationship with the Appellants. He did not also prove that the actions taken by the Appellants contravened the terms and conditions of his employment as shown in his letter of appointment Exhibit A.

Counsel further submitted that the trial judge having ruled on 21/10/04 after taking argument from both sides that Rules 11206 and 11208 of Chapter 11 of the Public Service Rules 2000 were inapplicable to the Respondent’s case cannot at the judgment stage overrule himself on the point without calling on counsel for further addresses. He was already functus officio. Counsel submitted that the action of the trial judge in overruling himself on the point showed bias against the Appellants and also amounted to denial of fair hearing in that he overruled his earlier ruling suo motu without hearing from the Appellants.

Learned Counsel submitted that the relationship between the Appellants and the Respondent is that of master and servant as clearly shown in the letter of appointment Exhibit “A”; that this fact having been admitted by the Respondent need no further proof. The Appellants, counsel argued, had the power to interdict the Respondent to enable it investigate the allegation against him and that the act did not amount to a breach of his fundamental rights. Counsel finally submitted that the learned trial Judge should not have awarded judgment to the Respondent because he marked the examination script where the fraud was evident. The trial judge, he argued was wrong to have rejected the tape recorded conversation between DW3 and Bolaji Opeseitan which confirmed the inter-action between Bolaji and the respondent as regards the fraud.

In reply to these submissions, learned Counsel for the Respondent referred to the provisions of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that the Respondent as rightly held by the trial Judge was not given fair hearing because the letter of interdiction was issued to him before any hearing; and he was not allowed to cross-examine those who testified against him during the investigation. Counsel cited several authorities on fair hearing.

Counsel submitted that the Appellant’s interpretation of paragraphs 11206 and 11208 of Chapter 11 of the Public Service Rules 2000 is misconceived because by those paragraphs an anonymous petition must be discountenanced. Counsel argued that Paragraph 11208 specifically provides that a petition which does not comply with rule 11206 (requirement for stating the full names, staff number, signature and address of petitioner) or which is anonymous will not be entertained. Counsel posed the question whether a fictitious letter, with no name, signature, no matriculation number and no address can be used to set in motion the machinery of justice? Counsel suggested that the inference can be drawn that the Appellants wrote the fictitious letter in order to implicate the Respondent; otherwise what was the motive of DW3 in recording the conversation between him and the lady student, Bolaji without her consent.

In the determination of this appeal, it is important from the onset to ascertain the actual nature of the contract of employment between the Appellants and the Respondent. This is so because the answer to most of the issues raised in this appeal will depend on the nature of the contract of employment between the parties.

The Respondent in the trial court had pleaded and led evidence that he is a Senior Lecturer in the Department of Accountancy, Federal Polytechnic, Ede; an institution established under the Federal Polytechnic Act. It follows therefore that the Respondent’s appointment was governed by the provisions of the Federal Polytechnics Act (No. 33 of 1979) now Cap F17 Laws of the Federation of Nigeria, 2004. This law contains provisions for the employment and discipline of its employees. The employment of the respondent by the Appellants was therefore one with statutory flavour. It is necessary at this stage to point out that this issue was not pronounced on by the learned trial judge. Surprisingly, learned counsel for the Respondent did not plead or lead evidence as to whether the letter interdicting the Respondent was in accordance with the Federal Polytechnic Act which is the law that governed his employment. The Respondent dealt with the alleged unlawful interdiction from the point of view of fair hearing within the provisions of the Constitution. This is not wrongful per se because the Constitution is the grundnorm of all our laws and will prevail over any law that is inconsistent with any of its provisions. In paragraphs 5 & 10 of their statement of defence, the Appellants averred that upon the report of the committee, and in accordance with the relevant Public Service Rule, the Plaintiff was interdicted for three months on half pay with effect from 12/5/03. This in effect means that the Appellants’ assumption is that the Respondent’s employment was governed by the Public Service Rules.

The Appellants however in their written address at the trial court at page 51 of the record submitted that in view of the provisions of the Federal Polytechnic Act, Cap 139, Laws of the Federation of Nigeria 1990 particularly section 12(1)(a), (b), (c); (2), (3)(c), (4), (5) and (6) governing the procedure for removal and discipline of academic/administrative and Technical staff vis-a-vis the evidence before the court, that the Plaintiff was afforded fair hearing. The learned trial Judge did not unfortunately consider the provisions of the Federal Polytechnic Act. He initially resolved the matter from the point of view of fair hearing within the provisions of the Constitution of the Federation which is not out of place but later on in his judgment, his Lordship appeared to have accepted that the governing law is the Public Service Rules. This is not so. In the case of The Council of Federal Polytechnic Mubi v. T.L.M. Yusuf & Anor (1998) 1 NWLR (Pt. 533) 343, the Supreme Court observed:

“… In all the institutions set up by Statute it is incumbent that the Statutory provisions be adhered to when it comes to removal of its officers from office because the institution owe their existence to their statutes and must abide by the statutory provisions governing them…….”

Rule 010101 of the Public Service Rules 2008, the most recent revision provides that the Rules apply to all officers named in the Rule except where they conflict with specific terms approved by the Federal Government and written into the contract of employment or letter of appointment of the officer. It stated further that the rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria. These Rules do not therefore apply to institutions set up under the Federal Polytechnic Act because the Act contains comprehensive and detailed provisions for the discipline and removal of academic, administrative and technical staff of a polytechnic. Section 17(1) of the Federal Polytechnics Act provides:

(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 technical staff of the Polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall –

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

(b) Afford him an opportunity of making representation in person on the matter to the Council; and

(c) If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-

(i) If he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or

(ii) For a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and

(iii) For the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter,

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

(2) The Rector may in a case of misconduct by a member of the staff which in the opinion of the Rector is prejudicial to the interests of the Polytechnic, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of staff may be suspended from office or his appointment may be terminated by the Council, and for the purpose of this subsection, “good cause” means-

(a) any physical or mental incapacity which the Council, after obtaining medical advise, considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b) any physical or mental incapacity which the Council, after obtaining medical advise, considers to be such as to render the person concerned unfit to continue to hold his office; or

(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to hold his office; or

(d) Conduct which the council considers to be such as to constitute failure or inability of the person concerned to discharge the function of his office or to comply with the terms and conditions of his service.

(4). Any person suspended pursuant to subsection (2) or (3) of this section, shall be placed on half pay and the Council shall before the expiration of the period of three months after the date of such suspension consider the case against that person and come to a decision as to:-

(a) whether to continue such person’s suspension and if so on what terms (including the proportion of his emolument to be paid to him);

(b) whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;

(c) whether to terminated the appointment of the person in question, in which case such a person, will not be entitled to the proportion of his emolument withheld during the period of suspension; or

(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine, And in any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.

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

The position therefore is that when there is any reason to remove any person employed as a member of the academic staff of a Federal Polytechnic on the ground of misconduct, the procedure outlined above must be followed.

Section 17(1) of the Federal Polytechnic Act 2004 is in pari materia with Section 12(1) of the Federal Polytechnic Act, 1979 (as amended). The section was interpreted by the Supreme Court in The Council of Federal Polytechnic Mubi v T.L.M. Yusuf & Anor (Supra) It was held that any procedure for terminating an employee’s appointment outside the scope of that section would be unlawful, null and void.

See also UNTH Management Board & Anor vs Nnoli (1994) 8 NWLR (Pt.376) 402.

Learned Counsel for the appellants had submitted that the determination of the employment of the Respondent was based on Sections 12 (1) (a) (b) (c); (2), 3 (c), (4) (5) and 6 of the Federal Polytechnic Act, 1979. With all due respect to learned Counsel, that is not the case. I have set out in full the provisions of Section 17 (1) of the 2004 Act which as I said earlier is in pari materia with Section 12 (1) of the 1979 Act. The procedure laid down in the Act was not followed. While it was permissible under Section 17 (2) of the Polytechnic Act to suspend or interdict the respondent for misconduct, the suspension must be at the instance of the Rector who must be of the opinion that the misconduct is prejudicial to the interest of the polytechnic and the suspension shall forthwith be reported to the Council. The letter of suspension or interdiction Exhibit “B” was written and signed by the Registrar without any indication that he was writing on behalf of or on the authority of the Rector. Worst still the letter indicated that the interdiction was in accordance with the Public Service Rules and Regulation No. 04403. The letter of interdiction Exhibit “B” was clearly not a letter of suspension as envisaged by Section 17 (2) of the Polytechnic Act. There was no evidence that the suspension was reported to the Council. The most important question however is whether by Section 17 (2) of the Polytechnic Act it is right to write this letter of suspension or interdiction without giving the employee any chance whatever of explaining himself that is without giving him any hearing at all.

Interdiction or suspension of the employee with half pay is a kind of punishment. It should not happen without giving the employee a hearing. It is indeed denial of fair hearing and not what is intended by section 17 (2). The proper procedure to adopt is as follows:

1. Once there is reason to believe that an employee may have engaged in misconduct that could lead to his removal from office, the Council of the Polytechnic would give notice of those reasons to the employee.

2. The employee will then be given an opportunity to make representations in person to the council.

3. If he or any three members of the Council so request within a period of one month from the date of the notice (in the case of an academic staff) arrangement should be made for a joint committee of the council and the Academic Board to investigate the matter and to report on it to the Council.

4. After a consideration of the report, if the Council is satisfied that the employee should be removed, Council may remove him by an instrument in writing signed on the direction of the Council.

Where the Rector of the Polytechnic desires to go under Section 17 (2) to suspend or interdict an employee, he must first satisfy himself that the employee did engage in misconduct which in his opinion is prejudicial to the interest of the Polytechnic. How does the Rector satisfy himself of the employee’s misconduct? By conducting a preliminary investigation in which the employee is given fair hearing. It would be wrong and contrary to Section 36 of the Constitution of the Federal Republic of Nigeria which guarantees every citizen fair hearing for the Rector to act without first giving the employee the opportunity to explain himself. In the case of Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290 where a letter of suspension was written under similar circumstances, the employee had appeared and defended himself before two panels at the Departmental and Faculty levels before the suspension. Often this power of interdiction or suspension is used in situations where the employee committed a criminal act and has been charged to court. It would naturally be prejudicial to the interest of the Polytechnic to allow such employee to continue in service while the criminal prosecution is on-going. The Appellants did not deny the fact that the Respondent was not given any hearing at all before he was issued the letter of interdiction. Their contention was that suspension of a servant pending investigation of corruption does not necessarily amount to breach of fundamental rights to fair hearing. They relied on the case of Ayewa v. University of Jos (supra) or [2000] 6 NWLR (Pt. 659) 142. This is an unfortunate misrepresentation of the law. In Ayewa’s case, the employee challenged his suspension by his employer pending investigation of allegation of corruption by taking out a suit for the enforcement of his fundamental rights. The Supreme Court upheld the judgment of the two lower Courts that the case is one of master and servant and not one enforceable under the Fundamental Rights provisions. The issue here is whether the Respondent was given fair hearing before he was issued the letter of interdiction.

Learned Counsel for the Appellant with all due respect misconceived the view of the Court of Appeal in the case of N.E.P.A v Arobieke (supra) or (2006) 7 NWLR (pt. 979) 245 at 275D-H; 277 A-D when he contended that the investigating committee will not be required to observe or follow the strict procedure similar to that of a court of law and that even where it refused to give a party an oral hearing at all or the right to cross-examine the witnesses or even where it obtained some of its evidence from other quarters or sources behind the complaint, it will not be regarded as denying him fair hearing or acting contrary to the rules of natural justice. In N.E.P.A. v Arobieke, the respondent was given fair hearing before the termination of his appointment.

He appeared before an Ad hoc committee set up to investigate his case. He presented his defence, called witnesses and was allowed to cross-examine witnesses called by the committee. Some of his own witnesses in his presence contradicted his own evidence. At the end the ad hoc committee was satisfied that he was guilty as charged and recommended termination of his appointment. His appeal to the Appellant his employer was refused. The Respondent then filed a suit at the Federal High Court for an order of certiorari to bring up and quash the proceedings and findings of the ad hoc committee; to declare the proceedings and the termination of his employment based on it’s findings null and void on the grounds, inter alia of violation of his right to fair hearing and an order for injunction restraining the Appellant from acting on the recommendation of the ad hoc committee. The learned trial Judge Nwogwugwu J. granted all the reliefs sought in the motion for an order of certiorari. The appellant, N.E.P.A being dissatisfied with the ruling appealed to the Court of Appeal Calabar which unanimously allowed the appeal. The Court held that what constitutes fair hearing depends on the circumstances of each case and that in the instant case, the ad hoc committee which was merely administrative, investigative and exploratory and which gave the Respondent sufficient prior notice about the allegation he was to face before it with full adequate opportunity and time to prepare his defence against the allegations made against him did not commit any breach of the twin pillars of the rules of natural justice; that the committee did not violate the provision of Section 33 of the Constitution of the Federal Republic of Nigeria 1979 (section 36 of the 1999 Constitution) on fair hearing. This case is consequently no authority for the view of the Appellants herein that there was no need for them to comply with rules of fair hearing before issuing the letter of interdiction. This Appeal is really not concerned with the efforts of the appellant to give the respondent fair hearing after the interdiction. They did strive but still their effort fell short of the required standard. There is a very vital point in this case which I think escaped the attention of the appellants. It is true that a close examination of the script of Bolaji Opeseitan, Exhibit “F” showed that the script was tampered with by gumming extra sheets to the original exam script. The fraud was established. It was necessary to further investigate thoroughly and establish that the respondent colluded with Bolaji in executing this fraud. It was not enough to assume as the Appellants apparently did that because the Respondent marked the script he was part of the fraud. The evidence of Bolaji should have been taken in the presence of the Respondent and the Respondent allowed to cross-examine her. Most importantly, DW3 who invigilated the paper and who gave evidence linking the respondent to the fraud testified before the investigative panel in the absence of the Respondent. At the hearing at the lower court DW3 admitted under cross-examination that the Respondent was not present when he appeared before the panel. The Respondent had no opportunity to cross-examine DW3. His evidence at page 47 of the record is that he invigilated the course and that after the examination, he asked the students to queue up and submit their papers; that instead of queuing up, Bolaji went to the last line; that two days after the exam, Bolaji came to him to tell him that she wanted to see the Plaintiff and that he jokingly asked her why she wanted to see the Plaintiff; that Bolaji met him again for the second time at Ede where he parked his car and came to-.ask him why he had not contacted the Plaintiff; that the third time around at Osogbo, Bolaji saw him and told him that she had seen the Plaintiff and that things have been sorted out. Unknown to her, he most conveniently had a tape recorder with which he taped the conversation. There is also the evidence of the respondent that he did not collect the scripts until two weeks after the examination. All these underscore the necessity of affording the respondent the opportunity of hearing DW3 tell the story to the investigative panel and the opportunity to cross-examine him. The bottom line is that the learned trial Judge was right in his conclusion that the Respondent was not given fair hearing as required by law. After examining the evidence led before him, the learned trial Judge in his judgment at page 62 of the record observed:

“From the foregoing, it is obvious that the Plaintiff may have been invited into one or two of the 1st Defendant panels to give his own side of the story before handing him a pre-determined judgment BUT CERTAINLY was not given an opportunity to cross-examine those who testified against him that enable (sic) all the three panels viz:- (1) Four men Ad Hoc committee, (2) Management committee and (3) staff Professional Ethics Committee to reach the decisions that they did reach.

The question before us is whether inability to cross-examine witnesses constitutes denial of fair hearing?

Fair hearing within the meaning of section 36 of the 1999 Constitution means a trial conducted according to all the legal rules formulated to ensure justice is done to the parties. It encompasses the plenitude of natural justice, namely Audi alteram partem and nemo judex in causa sua as in the broad sense of what is not only right and fair to all concerned but also seems to be so.

Fairness of Proceedings requires among other things that a person who is tainted by likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly. Furthermore and as is relevant to this case, the person whose conduct is the subject of inquiry should have an opportunity of knowing what evidence has been given against him and to challenge hostile evidence.

(Underlining mine).

The right of a person to fair hearing is so fundamental to our concept of justice that it could neither be waived nor taken away by a statute, whether expressly or by implication. It is one of substance, not a technical one … this court after considering the facts of the case as all the witnesses (both Plaintiffs and Defendants witnesses) testified I am left in no doubt that the Plaintiff was denied fair hearing as he had no opportunity of knowing what evidence had been given against him (see the evidence of PW1, DW1 and DW3 as highlighted in this judgment). The Plaintiff also had no opportunity of challenging the hostile evidence against him since he was unable to cross-examine those witnesses who either wrote the petition Exhibit B or were called by the defendants such as DW3 who admitted giving evidence behind the plaintiff. This denial of fair hearing to the Plaintiff led to miscarriage of justice against the Plaintiff. It has been held that failure of any Tribunal or panel like the panel of the 1st Defendant which has a duty to take decisions to observe any of these twin pillars of the rules of natural justice namely:-

(a) Audi alterem partem – Hear the other side

(b) Nemo judex in causa sua – no one should be a judge in his own cause

Renders the proceedings and decision a nullity (underlining mine)

see Akinfe v. State (1983) 3 NWLR (Pt.85) 729 at 753”

The reasoning of the learned trial Judge cannot be faulted. It is not in doubt that academic or examination fraud is a serious misconduct over which the appellants have jurisdiction and power to deal with. The Appellants claimed to have acted under Section 12(1), (2), (3) (c) & (d) of the Federal Polytechnic Act, Cap39 LFN 1990. There is nothing in those provisions that empower the Appellants to flout the provisions of fair hearing enshrined in the Constitution flagrantly the way they did. At any rate they certainly did not comply with the provisions of the Act. The Council which is the body empowered to act under the Federal Polytechnic Act did not appear to have played any role in the termination of the respondent’s appointment. Neither the expanded Management Committee nor the Staff Professional Ethics Committee qualifies as Council within the meaning of the Act. By Section 17 (4) and (5) of the Polytechnic Act 2004 (Section 12 (4) and (5) of the 1979 Act) the suspension cannot last for more than 6 months. Here, the letter of interdiction Exhibit B is dated 12/5/03 while the letter of termination Exhibit D is dated 31/3/04 which means that the respondent was on suspension for 10 months contrary to the provisions of the Polytechnic Act. It is quite baffling that in spite of the plethora of authorities on this subject, institutions continue to mishandle cases of removal of corrupt employees to such a level that their decisions are constantly being upturned by the courts. It is advisable that these institutions seek proper legal advice before taking any step in these matters.

Learned counsel for the Appellants had submitted that it was improper for the learned trial Judge to have overruled himself on the status of the anonymous letter Exhibit E vis a vis the Public Service Rules. I have earlier determined that the Public Service Rules do not apply here because there is a law that established the Federal Polytechnic, Ede – The Federal Polytechnic Act. Its provisions are comprehensive and detailed with regard to employment and discipline of its staff. There is no room for resort to the Public Service Rules.

Having said this let me examine the actual sequence of events relating to this issue. After the exchange of pleadings and settlement of issues for determination, when the case came before the trial judge, learned counsel for the plaintiff raised a preliminary objection. Referring to Chapter 11 paragraphs 11206 and 11208 of the Public Service Rules (PSR), counsel submitted that the petition being anonymous has no bearing in Public Service Rules and by extension in Polytechnics as Federal Polytechnic Ede has no hand book for staff, hence their reliance on Public Service Rules. Counsel for the defendants in reply submitted that the Public Service Rules were inapplicable. Counsel argued that the regulations deal with a situation whereby a public officer writes a petition to Head of Government concerning him personally and that it is in such a situation that the officer has to make his identity known. Counsel submitted that the provisions of rules 11206, 11208 and 11209 are inapplicable and urged the court to place emphasis on 11201 which defined the word “petition”. The learned trial Judge at pages 33 & 34 of the record of proceedings ruled thus:

“The submission of Alaintiff counsel that the petition against the plaintiff was anonymous and as such ought not to be used against the plaintiff as it is disqualified ab initio govt. (sic) is hereby overruled. I agree in toto with the submission of Defence Counsel that the argument of plaintiff counsel bordering on the petition as defined and explained in the public service rules is totally misguided and as such inapplicable in this case. ”

In his judgment at page 64 of the record, the learned trial judge reversed his ruling and observed:

“I have since discovered that the ruling has a fundamental defect. The issue now is whether the court is functus officio or whether it still has jurisdiction to set it aside”

After examining the circumstances under which a court can set aside its own judgment and the cases relating thereto, the learned trial Judge held that his ruling of 21/10/04 can be likened to a judgment which is fundamentally defective such that it goes to the issue of jurisdiction and competence of the court rendering such judgment a nullity, thereby empowering the court sue motu to set it aside. The learned trial Judge went on to argue that from the contents of the interdiction letter Exhibit B, the express intention of the defendants was that their relationship with the plaintiff should be governed by the Public service Rules and Regulations. It followed then that the argument of the plaintiff as regards anonymous petitions and the relevant sections of the Public Service Rules is sound. He conceded that the very narrow interpretation given to the relevant rules by the defence counsel and which the court sustained is not correct. The trial Judge concluded that the defendants were wrong to have entertained the anonymous petition written against the Plaintiff and that the entire exercise by the Defendants was a nullity. He consequently suo motu reversed his earlier ruling. As far as the substance of the contention of the learned trial judge is concerned, I am of the humble view that his Lordship erred in his conclusion. This is because the Public Service Rules do not govern the relationship of the respondent and the appellants. What applies is the Federal Polytechnic Act. Secondly, the Appellants are right that the petition referred to in that part of the Public Service Rules which will not be entertained if it is anonymous is an appeal by a public servant for special consideration of matters affecting the officer personally. I might just mention that this does not make sense. Why would such an officer write an anonymous petition? The condition has happily rightly been deleted from The Public Service Rules: Corrected Version 2008 (Rule 090208). Anyway, we are concerned here with two live issues. Firstly, whether the learned trial Judge had the power to suo motu reverse his earlier ruling and secondly, whether the appellants were right to have carried out the investigation of the fraud based on the anonymous petition.

The law as correctly set out in his judgment by the learned trial Judge is that a trial judge becomes functus officio once he has delivered his judgment, and has no power to review it except under certain well defined circumstances such as, for example where the court lacked jurisdiction in the first instance.

See Sken consult (Nig.) Ltd v. Ukey (1981) sc 6: Ezeokafor v. Ezeilo (1999) 6 SCNJ 209 at 225. Similarly, once an issue has been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow the parties re-open the same issue for re-litigation. See Nnajiofor v. Ukonu (1985) 2 NWLR (Pt.9) 686 at 688; John Andy Sons & Co. LTD V. National Cereals Research Institute (1997) 3 NWLR (Pt 491) 1; In the case of A.I.C. Ltd v. NNPC [2005] 1NWLR (Pt. 937) 563 (D 597H, the Supreme Court also held that once a court has decided an issue in a particular way, the Court becomes funcfus officio in respect of that issue. With all due respect the learned trial judge’s decision to suo motu set aside his ruling of 21/10/04 on the ground of lack of jurisdiction is not supported by the facts of the case. There is nothing in the record of proceedings to suggest lack of jurisdiction to determine the issue. His Lordship’s action is further confounded by the fact that he reversed his decision suo motu and without hearing the parties. His Lordship was with respect wrong in reversing himself. He was funcfus officio and the issue a matter for the appellate court.

On the decision of the trial Judge that the Appellants had no jurisdiction to act on the anonymous petition Exhibit E for the purpose of investigating the allegation against the Respondent, it is out of the norm for an academic institution to receive an anonymous petition alleging fraud in the conduct of examinations in the institution to fold its hands and do nothing. The attention of the Appellants having been called to the alleged fraud, the proper thing to do is to carry out an investigation. Once there is evidence to support the allegation in the petition, investigation could continue without placing emphasis on the anonymous petition but on the outcome of the investigation.

There is nothing in the Federal Polytechnic Act that bars investigation based on an anonymous petition. All that is required is that the provisions of the Act and the rules of fair hearing be adhered to.

The Appellants did not strictly rely on the anonymous petition in finding the respondent liable. DW3 gave evidence allegedly linking the respondent to the fraud. The problem is that he did not give the evidence in the presence of the respondent and the Respondent was not given the opportunity to cross-examine him. When however DW3 Abdul Azeez sought to tender a tape recording of his conversation with Miss Bola Opeseitan in confirmation of his evidence that the Respondent was involved in the fraud, the learned trial Judge ruled against its admissibility on the ground that a tape recording is not a document within the meaning of the Evidence Act and that even if he was inclined to agree that it is, by Section 91(1) (b); the maker ought to be called as a witness. Since the maker of the tape or the person against whom it was sought to be used was not called as a witness and there was no evidence of her death, it would be a serious breach of fair hearing if she was not given the opportunity to deny or admit the tape.

The learned trial Judge has the issues mixed up. Before the coming into effect of the Evidence Act, 2011, the courts made the best of the situation by expanding the definition of “document” to include computer generated information which to my mind includes tape recordings. See definition of “document” in Section 2(1) of the Evidence Act 1945 as amended and the cases of Yusuf v. ACB Ltd (1976) 1 SC 45: Anyagbosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt. 59) 108: Trade Bank PLC v. Chami (2003) 13 NWLR (Pt. 836) 216: FRN v. Fani-Kayode (2010) 14 NWLR (Pt. 1214) 481 at 5016. Those type of evidence do not fall within the category of evidence made completely inadmissible in law. Rather they fall within the category of evidence admissible upon the fulfilment of certain conditions. In the case of a tape recording, as in other types of documentary evidence, it must be tendered by the maker subject to the usual exceptions. Contrary to the view of the learned trial judge, the maker of the tape recording is DW3. He testified that he recorded his conversation with the lady, Bolaji. But DW3 must lay the necessary foundation that will make the tape recording admissible in evidence. He must lead evidence to show that the tape recording is authentic in the sense that it is the original; that the voice in the recording is indeed that of Bolaji Opeseitan; that the tape was in his custody all the time and that there was no opportunity for anyone to tamper with it. None of these conditions was satisfied. If, for example Bolaji herself had identified the tape recording and admitted the voice therein to be hers, then the tape could possibly be rendered admissible but without such identification and in the absence of the person whose voice was said to have been recorded, the evidence is hearsay. The learned trial Judge was therefore right in ruling the tape recording inadmissible.

All these issues are however peripheral to the main substance of this suit. We are not actually concerned with whether the respondent committed the fraud or not. The issue really is whether the Appellants followed due process and accorded the respondent fair hearing before the termination of his appointment. All the argument of the Appellants in their brief as to whether the trial Judge directed himself properly as to the burden of proof on the Respondent and their contention that the trial Judge considered the evidence of the sole witness of the Respondent and believed it before proceeding to consider the “abundance of evidence” called by the appellants are irrelevant. The issue was whether the Appellants complied with the provisions of the Federal Polytechnic Act and the principles of fair hearing. From the evidence of the respondent and the appellants it is abundantly clear that this was not the case. The Appellants did not comply with Section 12 of the Federal Polytechnic Act 1979 (section 17 of the 2004 Act). The Respondent was not given fair hearing both before the issue of the letter of interdiction Exhibit “B” and during the hearing of his case by the three panels in that he was not given the opportunity to cross-examine those who testified against him. In order to be fair, a hearing must include the right of the person to be affected:-

1. To be present all through the proceedings and hear all the evidence against him;

2. To cross-examine or otherwise confront or contradict all the witnesses that testified against him;

3. To have read before him all the documents tendered in evidence at the hearing;

4. To have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognized exceptions;

5. To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence.

See Baba v. Nigeria Civil Aviation & Anor. (1991) 5 NWLR (pt.192) 388. Learned Counsel for the Appellants had submitted that the reliefs sought by the Respondent were inappropriate for a breach of contract of service. He argued that specific performance or re-instatement is generally not the remedy for breach of contract of service except where inter alia; the contract of employment has a legal or statutory flavour. I have already determined earlier in this judgment that the Respondent’s contract of employment is one with statutory flavour. The Respondent’s employment is governed by the Federal Polytechnic Act and is consequently one with statutory flavour. The Appellants ought to have adhered strictly with the provisions of the Federal Polytechnic Act in interdicting and terminating the appointment of the Respondent. The sequence of events and the exhibits tendered show that the Appellants were not even aware that their actions ought to have been governed by the provisions of the Federal Polytechnic Act. For these reasons I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the Federal High Court of Nigeria sitting at Osogbo Judicial division in suit no FHC/OS/CS/6/2004 delivered on 25/5/05 is hereby affirmed. Costs are assessed at N50, 000.00 in favour of the Respondent against the Appellants.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading before now the well considered judgment of my learned brother, Iyizoba, JCA just delivered. I agree with the reasoning and conclusion.

My brief comments are by way of emphasis only. The law is well settled that where a contract of service enjoys statutory flavour, an employer wishing to terminate the contract must be meticulous in complying with the procedure set out in the relevant statute or Rules thereunder. Any deviation from the stipulated procedure would render any acts done in respect thereof invalid and liable to the set aside. See: Iderima v. R.S.C.S.C. (2005) All FLLR (285) 431 at 450 D – E; Union Bank of Nig. Ltd. v. Charles Ogboh (1995) 2 NWLR (380) 647 at 669; Ekperokun vs. University of Lagos (1986) 4 NWLR (34) 162; Bamigboye vs. University of Ilorin (1990) 10 NWLR (622) 290 at 320 E – F.

Above all, in the termination of an employee’s appointment, by virtue the fundamental rights guaranteed in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the employee is entitled to a fair hearing. The law is equally trite that absence of fair hearing renders the proceedings null and void and of no effect. See: Oloruntoba-Oju & Ors. V. Abdul-Raheem & Ors. (2009) 13 NWLR (1157) 83 at 137 G -H; Olaniyan v. University of Lagos (1985) 9 NWLR (9) 599; Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (300) 426.

In the instant case the appellants failed to afford the respondent a hearing before placing him on interdiction and also took the evidence of certain witnesses behind his back and without affording him the opportunity of cross-examining them. No matter how grave the misconduct allegedly committed by the Aespondent he was entitled to a fair hearing. The learned trial Judge dealt with this issue exhaustively in his judgment. His reasoning and conclusion cannot be faulted.

It is for these and the more detailed reasons contained in the lead judgment that I also dismiss the appeal. I also affirm the judgment of the lower court and award costs of N50,000 in favour of the respondent against the appellants.

CHIMA CENTUS NWEZE, J.C.A.: My learned brother, Iyizoba JCA, afforded me the opportunity of perusing the draft of the leading judgment just delivered now. I agree that this appeal is unmeritorious and should be dismissed. I, too, hereby enter an order affirming the judgment of the lower court dated May 25, 2005.

I, entirely, agree with the leading judgment that the central issue in this case revolves around the pivotal question whether the appellants complied with the provisions of the Federal Polytechnics’ Act and the principles of fair hearing. My Lord has found that the Appellants did not comply with the extant provisions of the said Act. The Respondent was not afforded any fair hearing both before the issuance of exhibit ‘B’ and at the Panel sessions.

It is well-settled that the consequence of the breach of the right to fair hearing in an employment governed by statute is that such an employee is entitled to be reinstated.

In University of Maiduguri Teaching Hospital Management Board v Dawa (2001) 16 NWLR (pt. 739) 424, it was found that the removal of the Plaintiff/Respondent violated his right to fair hearing. At 447-448, the court declared:

Where the provisions of a statute govern the conditions of an employee, the courts regard the employee as having secured a special legal status, other than the ordinary master and servant relationship, with his employer. The employer is bound to comply with those conditions otherwise his act of termination would be declared null and void and any other act based thereon will also be void.

In the instant case, since the employment of the respondent is governed by statute, that brings it within the category of cases where the employee has secured a special legal status and his employment has statutory flavour and can only be determined in strict compliance with the relevant statutory provisions.

The effect is that the only recognised method of terminating an appointment with statutory flavour is by compliance with the procedure laid down in the Constitutive Act of the agency in question. Where there is a breach, particularly, a breach of the inveterate principles of fair hearing, the court would intervene. It will void the unlawful act and order the re-instatement of the victim of the capricious exercise of power. The cases on this point are legion. I will cite only four: Shitta Bay v FCSC (1981) 1 SC 40, 56; Ekperokun v UNILAG (1986) 4 NWLR (pt. 34); Falomo v Lagos State PSC (1977) 5 SC 51; Olaniyan v UNILAG (1985) 2 NWLR (pt.9) 599. Indeed, in Olaniyan v UNILAG (supra) Karibi-Whyte JSC made far-reaching pronouncements on the propriety of a declaratory relief for the re-instatement of an unlawfully dismissed employee. Hear him:

The law has arrived at a stage where the principle should be adopted that the right to a job is analogous to a property. Accordingly, where a man is entitled to a particular job, I cannot conceive of any juridical reason against the view that where the termination is invalid and consequently alters nothing, a re-instatement of the employee, barring legal obstacles intervening between the period of purported dismissal and the date of judgment, is the only remedy

With humility, I, too, see no juridical reason for not ordering the re-instatement of the appellant, see, Iderima v RSCSC (2005) ALL FWR 431. Above all, his complaint is hinged on the violation of a fundamental principle, namely, his right to a good name. As it is often said, a good name is better than riches. In Laoye v FCSC (1989) 2 NWLR (pt. 106) 632, the irrepressible judicial activist, the ever indomitable Kayode Eso JSC announced magisterially and with clinical finality that:

When any one is accused of a criminal offence, he should, in his own interest, and, in the interest of truth and justice, be tried by the ordinary courts of the land. No hush inquiry will take the place of open trial. The right to fair hearing comprehends and includes the right to be heard in the open court in defence of one’s character and good name, when accused of misconduct and offence.

The provision of section 36 (1) of the 1999 Constitution, relating to fair hearing, is truly far-reaching. The requirements of fair hearing are ubiquitous.

In order to be fair, therefore, “hearing” or “opportunity to be heard” in a judicial inquiry, must encompass a party’s right:

(a) To be present all through the proceedings, to hear all the evidence against him/her.

(b) To cross-examine or otherwise confront or contradict all the witnesses that testified against him;

(d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him, except in recognised exceptions

(e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence;

Appearances

AWONIYI ALABI ESQ. WITH F.D. OYEBADE (MRS)For Appellant

AND

IBRAHIM ABDULSALAMI ESQ.For Respondent