MRS OKORIE GLORIA OBIAGELI v. FEDERAL COLLEGE OF EDUCATION (FCE) ZARIA & ORS (2014)

MRS OKORIE GLORIA OBIAGELI v. FEDERAL COLLEGE OF EDUCATION (FCE) ZARIA & ORS

(2014)LCN/7441(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of August, 2014

CA/K/204/2010

RATIO

APPEAL: GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION; WHETHER GROUNDS OF APPEAL MUST STEM FROM THE JUDGMENT OF TRIAL COURT AND ALSO WHETHER ISSUES FOR DETERMINATION FORMULATED MUST BE RELATED AND BASED ON THE GROUNDS OF APPEAL

It is settled principle of law that a ground or grounds of appeal must stem from the judgment of the trial court upon which the Appellant complained. A ground of appeal can arise inter alia from commissions or omissions by the court from which an appeal emanates, in either refusing to do what it ought to do or doing what it ought not to do or even in over doing the act complained of.

It is also trite that an issue or issues for determination formulated must be related and based on the ground or grounds of appeal contained in the notice of appeal filed. It must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal and cannot raise it outside their contemplation otherwise they become irrelevant and liable to be struck out so also the argument made therefrom. See Momodu v Momoh (1991) NWLR (Pt. 769) 608; Adelaja v Fanoiki (supra); Oredoyin v Arowolo (supra) and Triana Ltd v U.T.B PLC (2009) 12 NWLR (Pt. 1155) p. 313. per. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: PROCEDURE OR RULES STIPULATED; WHEN DOES THE FAILURE TO FOLLOW STIPULATED RULES OR PROCEDURE LEAD TO THE COURT SETTING ASIDE THE PROCEEDINGS AND DECISION ARRIVED AT

It is now trite that it is not every failure to follow a laid down procedure or rules that will automatically affect the decision of any court or tribunal or body exercising judicial or quasi judicial function, in this case the Respondents.
Therefore any mere irregularity that does not affect a party’s fundamental right to be heard or that has not resulted to a substantial injustice against a party will not be disturbed, not even on appeal. However, where the right of a party before any court or body empowered to exercise judicial or quasi judicial function is fundamentally affected by the failure to follow the stipulated procedure or rules and or that failure has occasioned a miscarriage of justice against a party, this court will surely set aside the proceeding and the decision arrived at. per. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: DUTY IMPOSED ON A PUBLIC BODY; THE EFFECT OF THE FAILURE OF A PUBLIC BODY TO COMPLY WITH CERTAIN PROCEDURAL SAFEGUARDS IN AN ENABLING ACT OR REGULATION

It is an undeniable fact that the Appellant was a senior staff of the 1st Respondent before her challenged dismissal; therefore the Registrar has not as a matter of obligation possessed with the power to discipline the Appellant. The used of the word “shall” in the regulation, in my view connotes mandatoriness which indicates that the power only lies on the Provost (3rd Respondent). In University of Nigeria Teaching Hospital Management Board V Hope C. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 412, (1994) 10 SCNJ at 98-99 it was said that; “where a public body fails to comply with certain procedural safeguards in an enabling Act or regulation, there is a breach of a duty imposed on it, decision in such circumstances is ultra vires.” Per Ogundare, JSC per. UWANI MUSA ABBA AJI, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; FAIR HEARING AND THE PRINCIPLE OF NATURAL JUSTICE
Fair hearing as enshrined above in our Constitution encapsulated the whole principles of natural Justice which have their roots in the two maxims of Audi Alteram Partem which connotes that a person must be heard and be giving a reasonable opportunity of hearing which is sine qua non and imperative for the court or any statutory authority to afford a party before passing its order or decision. And nemo judex in causa sua which implies that no one should be a Judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none. The oft-quoted aphorism that ‘not only must justice be done but must manifestly and undoubtedly seen to be done ‘made it obvious. per. UWANI MUSA ABBA AJI, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INVOKE ITS JURISDICTION UNDER THE CONSTITUTION TO INTERFERE WITH AND SET ASIDE AN ORDER THAT VIOLATES THE PRINCIPLE OF NATURAL JUSTICE

It is trite law that where an order or decision is reached by anybody exercising judicial function and that order or decision passed is in violation of the fundamental right of a person guaranteed under the Constitution or violates the principles of natural justice and or ultra vires the provisions of the relevant law, then the court of law can invoke its jurisdiction under the 1999 Constitution of the Federal Republic of Nigeria as amended to interfere with and set aside such order. See Yesufu Garba v University of Maiduguri (1986)7 NWLR (Pt. 78) 550; Gani Fawehinmi v Legal Practitioners Disciplinary Committee (1985) NWLR (7) p.300; Federal Republic Of Nigeria v Abiola (Supra); R v Sussex (1924) 1 KB 256. per. UWANI MUSA ABBA AJI, J.C.A.

COURT: JURISDICTION; WHETHER A DISCIPLINARY COMMITTEE HAS THE JURISDICTION TO HEAR AND DETERMINE CRIMINAL CASES

This question has since been answered in the negative to the effect that only regular courts have such jurisdiction by virtue of the Constitution. See Laoye vs. The State (1965) NMLR 111; Obadare & Ors V President, Ibadan West District Grade Customary Court (1964) All NLR 936 at 344 and Sofekun v Akinyemi (1980) 5-7 SC 1 at 737 and Kayode v The State (1966) NMLR 111, Fatayi-Williams CJN at page 18. In Baba v Aviation (supra) cited by the Respondents’ counsel, the Supreme Court Per Nnameka Agu, JSC at p.18 paras G-H said:
“When a person is accused of a crime, once the hearing body is anything less than a jurisdiction body vested with criminal jurisdiction, an administrative body lacks the jurisdiction and competence to try the issue. For such a body is not a court much less a criminal court. Only a court vested with criminal jurisdiction is competent to hear and determine such issue.” In Denloye v medical and dental disciplinary committee (supra) at page 312 the Supreme Court held that:
“In view of all these, we have come to the conclusion that the Tribunal was wrong to have proceeded to try offence punishable under the criminal code and the proceedings in this respect are null and void”
“In effect, where the unprofessional conduct of a practitioner amounts to a crime it is a matter of the court to deal with and once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in Section 3(1b), then the tribunal may proceed to deal with him under the Act.”Also See Legal Practitioners Disciplinary Committee vs. Chief Gani (1985) LPELR SC, 177/1984 NWLR (Pg. 7) 300.” per. UWANI MUSA ABBA AJI, J.C.A.

COURT: ORDER OF THE COURT; WHETHER AN ORDER OF A COMPETENT COURT OF LAW IS VALID AND BINDING ON PARTIES AND THE EFFECT OF THE FAILURE TO OBEY SUCH ORDER

Whether regular or irregular, competent or incompetent, a decision, order or judgment of a competent court of law in respect of what it is constitutionally empowered to do, is valid, subsists and binds the parties affected by it until set aside by the court itself or on appeal by a higher court, that is the effect of the presumption of regularity enshrined in the Evidence Act.

The law is also that, any party who disobeyed such decision, order or judgment is guilty of contempt of the court and any act or acts done in violation and or disobedience of the said, decision, order or judgment is invalid and ineffective in law. However, in case of an order of injunction as in the instant case, if the contemnor falls within the exception to the rule as set out in the cases of:
First African Atlantic Trust Bank Ltd v. Ezegbu (1992) 9 NWLR (Pt. 264) p.132 and Mobil Oil (Nig) Ltd v. Assan (1995) 8 NWLR (Pt. 412) p.129; as follows:-
a. A contemnor can apply to the court for the purpose of purging his contempt.
b. Where he is seeking leave to appeal against the order of which he is held in contempt.
c. He can be heard in support of a submission that, having regard to the true meaning and intendment of the order which he is said to have disobeyed his actions did not constitute a breach of it having regard to all the circumstances, he ought not to be treated as being in contempt; and
d. Where the contemnor is seeking to defend himself when same application is made against him.
With respect to the learned trial judge I do not agree but wonder how would the case of the Respondents be manipulated to fall within the above exceptions? I even tried but quickly caution myself and drew back in order not to fall into or be consumed by the train of injustice against the Appellant.
Because I could vividly recall when this court held in Access Bank Plc v U.L.O. Consult Ltd (2009) 12 NWLR (pt 1156) 534 that; “The issue of contempt has to do with justice itself being flouted rather than the individual court or judge, who is attempting to administer it”. per. UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HABEEB OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MRS OKORIE GLORIA OBIAGELI Appellant(s)

AND

1. FEDERAL COLLEGE OF EDUCATION (FCE) ZARIA
2. COUNCIL, FCE ZARIA
3. PROVOST, FCE ZARIA
4. REGISTRAR, FCE ZARIA
5. BURSAR, FCE ZARIA Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Kaduna in suit No. FHC/KD/CS/15/2007, delivered by M. L. Shuaibu, J on the 9th June, 2008 where the learned trial Judge dismissed the Appellant’s applications.

The Appellant was the Applicant and sued the Respondents at the lower court vide two applications; the first one as per a motion on notice dated 13th day of February, 2007 wherein the appellant prayed the court for the following orders:
1. AN ORDER of Certiorari removing to the honourable court for the purpose of being quashed the decisions and recommendations of council of the 1st Respondent on 25/01/2007 whereof punitive measures were recommended against the Applicant without fair hearing and without any evidence to support same.
2. AN ORDER nullifying the letter dated 26/01/2007 and 30/01/2007 from the 4th Respondent conveying to the Applicant a Warning and Suspension Notice respectively, other punitive decisions/recommendation of the Council of the 1st Respondent having been issued in violation of the Applicant’s right to fair hearing.
3. Such further or other orders the honourable court may deem fit to make in the circumstances.
(See page 1-2 of the records)

The second Motion on Notice dated 14th March, 2007 was pursuant to Order 9 of the Federal High Court (Civil Procedure) Rules 2000 and prayed for the following reliefs:
1. An order setting aside and nullifying the Notice of Dismissal dated 6th March, 2007(attached as exhibit A) issued by the Respondents to the Applicant in contravention and disobedience of the honourable court’s order dated 6th February 2007.
2. An order restoring the Applicant to status quo ante bellum the Respondent’s Notice of Dismissal pending the determination of the substantive suit.
3. Such other orders as the honourable court may deem fit to make.

The third Motion on Notice dated 16th March, 2006 and brought pursuant to Order 46 Federal High Court (Civil Procedure) Rules prayed for:
1. An order committing the Respondents to prison for violation and disobedience to the honourable court order dated the 6th day of February, 2002 by their Notice of Dismissal (attached as exhibit A) purporting to dismiss the Applicant from the services of the 1st Respondents.
2. Such other orders as the court may deem fit to make.
(See pages 73 – 78 of the records.)

The Respondents also filed an application dated 21st March, 2007 pursuant to Order 9 Rule 20, Order 47 Rules 3 and 4 of the Federal High Court (Civil Procedure) Rules 2000 and sought for:
1. An order granting leave of the court for an order setting aside, striking out and/or dismissing the Exparte order obtained and granted by the court on the 6th day of February, 2007 same having been based on an unlawful, premature and incompetent action.
2. And for such further order or orders the honourable court may deem fit to make in the circumstances.

The case of the Applicant (Appellant) is that she had been in the employment of the 1st Respondent for over 11 years and discharging her duties prior to the events leading to this suit. By a letter dated 9th January, 2007, the 1st Respondent wrote her a query on an alleged petition to the Executive secretary, National Commission for Colleges of Education, Abuja, without affording her a copy of the alleged petition to enable her reply appropriately to the contents of the query. The said query gave the Applicant 24 hours within which to respond. That the 4th Respondent by a letter dated 11th January, 2007 again issued her a query alleging criminal offence of plagiarism against her threatening jail sentence, and dismissal from service, the said letter also gave only 24 hours to the Appellant to defend herself, without supplying the work allegedly plagiarised which made it impossible for her to reply appropriately to the said allegation. That despite the above, the 4th Respondent by a letter dated 30th January, 2007 served her with a Suspension Notice and directed the 5th Respondent to place her on a half salary pending the determination of the offence of plagiarism by a committee to be constituted. That the quick successions within which these whole disciplinary and punitive measures were initiated and meted on her all within a period of less than three weeks shows manifest bias against her and breach of her fundamental right to be heard. That the 1st Respondent is a creation of Statute and her appointment is governed by the Federal College of Education Act, Cap. 129, 1992 and the condition of service and that the actions of the 4th Respondent contravened the said laws.

Parties in their respective applications supported with host of exhibits prayed and urged the lower court accordingly. The learned trial Judge considered and dismissed the applications.
In dismissing all the three applications above the learned trial judge held inter alia as follows:
“On the strength of the above and considering the transient nature of procedures of the query and suspension, the Applicant has not made out a case for the grant of an order of certiorari removing the decisions and recommendations of the 1st Respondents of 25th January 2007 for the purpose of being quashed and also nullifying the letters dated 26th January 2007 and 30th January 2007 on grounds of lack of fear hearing.
Consequently, the Respondents are at liberty to partake in this matter, there is however no materials placed before the court to sustain the Respondents application for leave to set aside the exparte order of 6th January 2007 and the applicant’s application for certiorari. In effect, all the three applications have failed and are accordingly dismissed.” (See page 247 of the record)
Dissatisfied with the judgment of the trial court, the appellant appealed to this court by way of notice of appeal dated 29th June 2010

The said notice contains six grounds of appeal which are hereby reproduced without their particulars in the following terms:
GROUND ONE
The learned trial judge erred in law when he held that the Respondents herein as defendants were not in contempt of the Honourable court’s order made on the 06/02/2007 merely because the Respondents had allegedly applied to set aside the said order, there by occasioning a miscarriage of justice.
GROUND TWO
The learned trial judge erred in law, when he held that the Respondents disobedience of the court order dated 06/02/2007 admits of the exceptions adumbrated in MOBIL OIL (NIG) LIMITED V. ASSAN (1995) 8 NWLR (Pt. 412) 129 at 149 and thereby occasioned a miscarriage of justice in his refusal to set aside the notice of dismissal dated 06/03/2007.
GROUND THREE
The learned trial judge erred in law when he refused to exercise his disciplinary jurisdiction by granting the Appellant’s application dated 14/03/2007 seeking to set aside the notice of dismissal served on the Applicant thereby occasioning a miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law by dismissing the Appellants application for certiorari on the allegation that the Respondents had followed due process or “laid down procedure” in querying, warning, suspending and dismissing the Appellant.
GROUND FIVE
The learned trial judge erred in law and thereby misdirected himself when he stated “in the light of the fact that the Applicant is not dismissed from the service of the 1st Respondent and that her grouse relates to the disciplinary procedure leading to her suspension…” her application for setting aside her dismissal cannot be granted and thereby occasioned a miscarriage of justice.
GROUND SIX
The learned trial judge erred in his evaluation of the facts when he held that “the applicant answer to the query of 11th January 2007, and exhibit C… is to say the least an affirmative of the fact that she is being accorded fair hearing and cannot complain afterwards” and thereby arrived at a wrong decision in refusing the applicant’s application for certiorari.

Appellant’s brief of argument dated 15th July, 2010 was settled by S. A. Apinega Esq was deemed filed same date. The Respondents’ brief of argument settled by Yemi S. Adekunle Esq. was filed on 5th February, 2013. The Appellant filed reply brief on the 20th February, 2013.

Out of the six grounds of appeal, Appellant distilled three issues for determination by this court as follows:
(1) Whether the procedures adopted by the Respondents in taking disciplinary actions against the Appellant were not in outright contravention of the Appellant’s conditions of service with the 1st Respondent.
(2) Whether the Respondents accorded the Appellant fair hearing in the entire process that culminated into her eventual dismissal from the service of the 1st Respondent.
(3) Whether the act of the Respondents in proceeding to dismiss the Appellant irrespective of a pending suit and a subsisting order of injunction against them which were duly served did not amount to disobedience and disrespect to court and therefore of no effect.

The Respondents by a notice of preliminary objection dated and deemed filed on 31st May 2013 raise some objections against the appeal on the following grounds:
(1) Whether the Court of Appeal can determine the three issues as formulated by the Appellant on page 3 of the Appellant’s Brief particularly as the issues were formulated as arising from the Appellant and Respondent’s relationship before coming to Federal High Court, Kaduna (or any court at all).
(2) Whether the Appellants Brief is not incompetent having been filed out of the forty five (45) days after the record of appeal was filed as required by the Court of Appeal Rules 2011 in Order 18 Rule 2 (formerly Order 17 Rule 2 of the 2007 Court of Appeal (Rules) and without leave of the Court of Appeal for extension of time.

On the substantive appeal, the Respondents distilled a lone issue for determination; thus:
(1) Whether the Federal High Court Kaduna herein referred to as the trial court was right in dismissing the Appellant’s case.

At the hearing of the Appeal on the 27th May, 2014, Appellant’s learned counsel S. A. Apinega Esq adopted his brief of argument and reply brief as his argument in this appeal and urged us to allow the Appeal. The Respondents also through their learned counsel Yemi S. Adekunle Esq. adopted their argument in support of the preliminary objection and Brief and urged us to dismiss the appeal.

Let me determine the preliminary objection raised before delving into the substantive appeal to avoid an exercise in futility.

Arguing the preliminary objection on ground No.1 of the preliminary objection, the Respondents’ learned counsel reproduced the provisions of Section 240 of the 1999 Constitution as amended to state that jurisdiction of the court is as provided or limited by the Constitution or Statutes. That from the issues formulated by the Appellant, this court is being urged to determine issues or disputes arising between the Appellant and the Respondent as if the parties have not being before any trial court.
That none of the issues was formulated as arising from the decision of the trial court and that the issues ought to be related or based and tied to the findings and decision of the trial court.

It is submitted further that to invite this court to determine whether the Appellant was afforded the fair hearing in meting out disciplinary action against the Appellant by the Respondents is to surreptitiously convert the Court of Appeal to a Court of first instance. That even where there are good grounds of appeal the issues formulated there from must be related to the judgment appealed against especially the ratio of the judgment. Counsel relied on the cases of Zakhem Oil Service Ltd v Art-in-science Ltd (2010) All FWLR (Pt. 547) P.776 at 783; Adelaja v Fanoiki (1990) 2 NWLR (Pt 131) 137 and Layinka v Makinde (2002) FWLR (Pt 109) 1557 to state that even where there are good grounds of appeal, the issues formulated there from must relate to the judgment appeal against.

Learned counsel contended further that the issues formulated by the Appellant particularly issues 1 and 2 cannot be determined without a fresh consideration of the facts or without a fresh inquiry into the dispute which is not the duty of this court. He relied on Zaria V Maituwo (1987) 3 SC 47 and Oredoyin V Arowolo (1998) 4 NWLR (Pt. 114) 172 at 221 to the effect that an appellate Court does not inquire into disputes but the way in which disputes have been tried and decided. And urge us to strike out the Appeal.

Arguing ground 2 of the objection, the learned counsel submitted that the trial court Registrar’s certificate on the printed record was made on 23/4/2009 however the Appellant brief of argument was dated and filed 15/7/2010. That is a period of one year three months after which counsel further submitted is outside the periods allowed by the rule of this court and that rules of court are meant to be obeyed. He relied on Oyeyipo v Oyinloye (1987) 1 NWLR (pt 50) 356; Orobayor v Amata (1981) 5 SC 276 and Ajibade v Fakoyode (1998) 4 NWLR (Pt 545) 184. Learned counsel further urged us to dismiss the appeal on this ground.

In his response on the above argument, learned counsel for the Appellant submitted that the issues in the Appellant brief were properly formulated out of the grounds of appeal filed. He relied on Onwuka Kalu v Chief Victor Odili (1992) 5 NWLR pt 240 p.1 30 at 167.

The learned counsel argued that issue 1 arises from grounds 4 and 5 which challenge the decision of the lower court for affirming the procedure adopted by the Respondents. That issue 2. Relates to ground 6 which complains about fair hearing on which the lower court affirmed that the Appellant was granted fair hearing. That this court can only make a considered decision after looking at the process of fair hearing on the record to see whether the decision of the lower court was proper in the circumstance. Counsel further submitted that issue 3 relates to grounds 1, 2 and 3 in the notice of appeal. That the decision of lower court in refusing to set aside the notice of dismissal of the Appellant forms part of the decision of the lower court which the Appellant appealed against.

On ground 2 of the objection the learned counsel submitted that the filing and grant of the motion on notice in this regard regularised and overtaken this point of objection on notice as the Appellants brief would have been deemed filed within time. Counsel urged us to discountenance the objection.

Having said this, in the instant case, on a close view of the grounds of appeal contained in the record of appeal and the issues formulated by the Appellant, I am of the humble view that all the grounds are stem out from the judgement of the trial court and the issues have bearing with the grounds of appeal as distilled by the Appellant. Issue 1 relates to grounds 4 and 5, issue 2 relates to grounds 6 and issue 3 relates to grounds 1, 2 and 3 in the notice of appeal. All the grounds challenge the decision of the trial court in affirming the decisions of the Respondents which the Appellant felt was wrong. Issues formulated for determination must be read together with the grounds of appeal and not in isolation. It is not of necessity for a party to state that whether the trial court was right or wrong in doing or refusing to do what it ought to have done. What is necessary with issues formulated is that it must not mislead the adverse party and must flow from the grounds and relates properly. See Mil. Admin. Benue State v Ulegede (2001) 17 NWLR (741) 194. Therefore, I found nothing wrong with the Appellant issues for determination and I did not find the issues requiring us to hear the case of the Appellant afresh as contended by the Respondents learned counsel.

On the second ground of objection, that the Appellant’s brief is incompetent having been filed outside the forty five days after the records of appeal was filed as required by the rules of this Court; that since no leave of this Court is sought for extension of time to file brief is incompetent. The Appellant argued that he had filed a motion on notice to resolve the perceived defect and apparent conflict of records in the circumstance and submitted that the grant of the said motion would over take this point of objection as the Appellant brief would have been deemed filed within time.

It is on record of this court that the Appellant filed an application for extension of time to file and serve the Respondents out of time, the said motion was dated 18th February, 2013 and filed 20th February 2013 and granted on 28th November, 2013 deeming the Appellant’s brief properly filed on 15th July, 2010. The grant of the application has corrected and regularised the defect. Therefore I found no merit in the preliminary objection as a whole and is hereby dismissed.
I shall now proceed to consider the appeal on the merit.

Arguing issue one the Appellant learned counsel S. A Apinega Esq. submitted that the 1st Respondent’s condition of service exhibit G3 states the procedure and appropriate bodies that shall take disciplinary action against a staff and in the case of the Appellant a senior staff, chapter 6 of the exhibit G3. That the basis of the motion for certiorari dated 13/2/2007 was with respect to warning and suspension notice dated 26/1/2007 and 30/1/2007 respectively at page 63 and 65 of the records. That the proper procedure of querying, warning and suspension was subverted by the Respondents to the detriment of the Appellant and in particular the action of the 4th Respondent who unilaterally usurped and undermined the authority of the head of department of the Appellant to initiate the query, warning and suspension of the Appellant. Counsel argued that exhibit G7 clearly shows that the Council acted merely on the explanation to the query and not on the report of an investigating committee and it is prejudicial to the Appellant as no ample opportunity was given her to defend herself. He contended that since the laid down procedure of querying, warning and suspension was grossly abused the dismissal of the Appellant cannot stand. That the proceedings contain in exhibit ‘B’ by disciplinary committee demanded the Appellant to prove her innocence without evidence proffered against her. The learned counsel further submitted that the Appellant cannot be compelled to incriminate herself or be convicted as the disciplinary committee did without probative effect of legally admissible evidence. He relied on the case of Effiom v The State (1995) 28 LRCN 320 at 425 and Obo v C.O.E Bendel State (1993) 2 NWLR (Pt 273) p.46 at 57. Learned counsel submitted that in view of the above the dismissal of the Appellant ought to have been set aside by the trial court; and urged this court to hold that the infractions of the laid down procedures against the Appellant were sufficient to warrant the case of certiorari to succeed and therefore should be quashed. And urged us to so hold.

Arguing issue 2 the Appellant’s learned counsel submitted that fair hearing is a constitutional right that is not limited to giving opportunity to the Appellant to defend herself within a reasonable time but includes an opportunity to be tried and punished by an independent and impartial disciplinary body. Section 36(1) of the 1999 Constitution of FRN (as amended) was referred, and counsel contended that the 4th Respondent had without due regard to the principle of impartiality made himself the complainant (accuser), prosecutor and the judge against the Appellant. He referred us to pages 63, 64, 65, 72, and 239 of the records; that also 3 other members of the Appointment, Promotion and Disciplinary Committee, the 3rd Respondent (Dr. Maimuna Yaroson-chairman) Dr. Bukar Bukarbe (representing Federal Ministry of Education) and Dr. Musa Balarabe (representing Ahmadu Bello University) are also members of the 2nd Respondent (the Council) which takes final disciplinary actions against staff in the calibre of the Appellant. For the composition of membership of the 2nd Respondent learned counsel referred us to Section 3(1) of the Federal Colleges of Education Act Cap F8 Laws of the Federation of Nigeria, 2004. It is further contended that these four members of the disciplinary committee listed above, participated actively in the trial of the Appellant and made recommendations to the 2nd respondent where they are also members and participated to consider their own recommendation to dismiss the Appellant.
That this is absolutely devoid of any sense of impartiality by every standard and further submitted that it constitute likelihood of bias. Counsel relied on FRN v Abiola (1995) 31 LRCN 265 at 287; Ogboh v FRN (2002) 4 SCNJ 393 at 404 to state that the trial court ought to have set aside the entire process that culminated into Appellant’s dismissal, and urged this court to so hold and allow the appeal on this issue.

On issue 3, the Appellant’s learned counsel argued that the trial court issued an injunction against the Respondents pending the determination of the suit dated 6th February, 2007 pursuant to motion Exparte, the Appellant proceeded to file a motion on notice dated 13th February, 2007 Counsel referred to pages 100-102 and 1-2 of the records respectively. That by the combined effect of the affidavits of service deposed to by the Appellant and the court Bailiff, the Respondents were duly served with both the orders of injunction and the motion on notice on the 13th February, 2007.

Counsel argued that court orders are not made in vain but meant to be obeyed until set aside. That the notice of dismissal of the Appellant is dated 6th March, 2007 (at page 72 of the records) while this suit was pending till 9th June, 2008. He submitted that the acts of the Respondents in proceeding to dismiss the Appellant in the circumstance amounted to contempt of court and the trial court ought to have nullified the notice of dismissal more so that the contempt was brought to the notice of the court by way of motion on notice dated 14th March, 2007 by Appellant’s counsel. The cases of Unipetrol (Nig) Plc V Abubakar (1997) 6 NWLR (Pt 509) p.478 and Abubakar V Unipetrol Nig Plc (2002) 8 NWLR (Pt 769) p. 242 at 251-252 were cited to the effect that an Appellate Court can reverse an act performed during the pendency of a motion or action which a party had notice of it. The Court was urged to so hold and resolve this issue in favour of the Appellant.

Arguing his sole issue for determination, the Respondents’ learned counsel contended that the Appellant’s case before the trial court was a certiorari application seeking to quash “the decisions and recommendations of the 1st Respondent on 25th January 2007 where punitive measures were recommended against the Applicant (the Appellant) without fair hearing and without any evidence to support same. That the Appellant’s brief in pages 5 and 6 sought to set up a new case in this court by the entire argument on her issue one. Counsel argued that there was no time the issue of ‘Who issues query, warning and suspension from duty’ ever arose during the trial of the case at the trial court. That this appeal is not a complaint against any perverse findings of the trial court he relied on Ebba v Ogodo (1984) 1 SCNLR 372 and Okpalaka v Ume (1976) 9 SC p.269. That the trial court specifically held that he found nothing wrong in the procedure that led to the issuance of the query, warning and suspension which were the plank of the case at the trial. He referred this court to page 244 paragraphs 3 of the records.

Respondents’ learned counsel contended that the Appellant seems to be smuggling the issue of dismissal of the Appellant which was subsequent to the filing of the case and premised upon different and unconnected facts.
Therefore not an issue in the substantive case tried. Counsel urged us to discountenance issue No. 1 and 2 in the Appellant brief.

It is submitted further that in construction of the powers of an establishment exercising disciplinary action over its employees, it has long been established that what matters is whether the establishment possesses the power to issue administrative punishment for acts which it considers as misconduct as in this case, he relied on the cases of Patrick Magit v University of Agriculture, Makurdi (2000) All FWLR (Pt. 298) 1313 at 1336; Garba v University Of Maiduguri (1980) 7 NWLR (Pt 18) 550; Esiaga v University Calabar (2004) All FWLR (Pt 206) p.381.

Respondents’ learned counsel further submitted that the claim that an employee must be given all the opportunities available to a person facing an allegation as if the trial is before a body exercising judicial powers is now misplaced. He referred to Baba v Aviation (1991) 2 NSCC p.145 at 154, to contend that assuming without conceding that the case at the trial was as to the Respondents not making the Appellant face criminal trial before being made to face the administrative panel of the Respondents, that the law is no longer that an institution cannot administratively deal with cases of gross misconduct. Counsel relied on Magit v University of Agriculture, Makurdi (supra) and that the Appellant was granted fair hearing as found by the trial court it is a burden place now on the Appellant to proof otherwise. He cited the case of Babuga v State (1996) 7 NWLR (Pt 460) 279; Shittu v Egbe Yemi (1996) 6 NWLR (Pt. 457)650.

Counsel referred to the committee proceedings at pages 144-146 of the record of appeal to submit that the Appellant had admitted the offence of plagiarism against her. That tribunal will do well by convicting an accused upon his admission, the Respondents need not fish for further evidence to take punitive measures against a staff who admits a wrong conduct. Reliance was placed on Babuga V State (Supra) and Olagunyi V Oyeniran (1996) 6 NWLR (Pt 453) 127.

Learned Counsel contended that while the membership of the Respondents’ disciplinary committee in this regard can be found on page 139 of the records but contrary to his argument, the Appellant’s counsel failed to show that of the Council (2nd Respondent). He relied on Sections 135 and 136 of the Evidence Act 2011. Counsel also cited in reliance the cases of Alhaji Otarun & Sons Ltd V Idris (1999) 6 NWLR (Pt 606) 330 and Aiyetoro Comm. Trading Co. Ltd V NACB Ltd (2003) 12 NWLR (Pt. 834) P.346 to contend that the burden of prove is on who asserts and not on who denies. Counsel further urged this court to distinguish the cases of FRN V Abiola (Supra) And Ogbon V FRN (supra) from the instant case.

The Respondents’ counsel quoted order Number 4 of the injunction at pages 101-102 of the records to submit that the effect is not been for general disciplinary and punitive measures on the Appellant that the Appellant sought an injunction only after the suspension of the Appellant on 13/2/2007 and 30/1/2007 respectively counsel further urged us finally to dismiss this appeal.

In his reply, the Appellant’s learned counsel submitted the Appellant does not seek to set up a new case out in this court. That the Respondents in their brief of argument admitted at page 6 that the issue of fair hearing and lack of evidence were the subjects of the Appellant’s case at the trial court which the learned trial judge held that he found nothing wrong in the procedure that led to the issuance of the query, warning and suspension.

It is also the view of learned counsel that the issue of dismissal also formed part of the decision of the trial court and that the Appellant made it a ground of appeal and an issue for determination on appeal. Learned counsel on the whole urged us to discountenance the submissions of the Respondents, hear the appeal on merit and allow same.
I will determine this appeal by adopting the Appellant’s issues as formulated because they are all encompassing.

ISSUE ONE
Appellant’s learned counsel on this issue argued that in all the three disciplinary actions the Respondents failed and neglected to follow the laid down procedures in the conditions of service of the 1st Respondents (Federal College of Education Zaria). Counsel submitted that they are obliged to follow the conditions of service otherwise the infractions are sufficient to warrant the case of certiorari to succeed and therefore ought to be quashed by the trial court. He relied on Obo V Commissioner of Education Bendel State (supra). While the Respondents counsel argued that the trial court was right in it holding that nothing was wrong in the procedure adopted by the Respondents, argued that what matters first and foremost is whether the 1st Respondents possess the power to issue administrative punishment for acts which it considers as misconduct. Counsel relied on Magit V University of Agriculture Makurdi (supra); Garba V University of Maiduguri (supra) and Esiaga V University of Calabar (supra).

Appellant’s appointment is one with statutory flavour, for the 1st Respondent is a creation of a statute, Federal Colleges of Education Act Cap F8 LFN, 2004) and the laid down rules that regulates their relationship is the 1st Respondent’s condition of service; which in chapter 6 in particular provides for disciplinary procedure for all the disciplinary actions against any staff of the 1st Respondent.
For purpose of reference, I reproduced below the part considered vital to this appeal; thus:
Regulation 6.1
(a) The Provost as the Chief Executive of the College shall have power to exercise general authority over staff and shall have responsibility for discipline in the College.
(b) The Provost shall have the responsibility for the general discipline of all members of staff and in the case of junior staff; the powers of discipline shall be exercised by the registrar on behalf of the Provost.
(c) It is the duty of the Head of Department or division to whose notice of misconduct of an officer is brought to institute administrative enquiry, and in extreme cases of serious offence to report the matter to the provost, through the registrar and recommend appropriate disciplinary measures.
Regulation 6.2 Warning
(a) An employee who has committed a minor misconduct maybe warned orally by the Head of Department.
(b) An employee whose conduct or performance is unsatisfactory shall be given query in writing by the Head of Department. If his explanation is considered by the head of Department as adequate no further action shall be taken. However, if his explanation is unacceptable or is unsatisfactory, the Head of Department shall record the warning in writing against the employee and copy the registrar.
Where subsequent warning becomes necessary, the head of Department shall issue a query to the employee concerned and obtain explanation from him and forward both with his recommendation through the normal channel to the registrar who would then issue a subsequent warning if in his opinion such conduct merits a warning.
Regulation 6.6 Suspension; 6.6.1 provides:-
If it appears to the Council that there are reasons for believing that any of the principal staff or any member of the academic staff/administrative staff of the college should be suspended on the grounds of misconduct or inability to perform the functions of his office, the Council shall:
(a) Cause a notice to be given in writing to the staff concerned drawing his attention to the alleged misconduct or other default.
(b) Set up an investigating committee to investigate and report.
(c) The investigating committee shall consist of three members of Council and one each from academic Board and the congregation.
6.6.2. The Council shall give the staff whose conduct is the subject matter of investigation by the committee, a reasonable opportunity of appearing before the committee and of making such representation as he may think necessary with respect to any allegation make against him.
6.6.3. If the Council after considering the report of the investigating committee is satisfied that the officer whose conduct is the subject matter of the investigation ought to be suspended from office the council may, by instrument, in writing.
(a) Suspend the staff
(b) Make recommendation for the staff’s suspension or removal to the appropriate authority. In the case of the provost, such recommendation should be forwarded to the Hon. Minister of Education.
6.6.4. The Provost may, in a case of misconduct by a member of staff which, in the opinion of the Provost, is prejudicial to the interests of the institutions, after due consideration suspend such member and any such suspension shall forthwith be reported to the council.

On a careful look and examination of the printed record particularly at pages 61-65 that is the first query, warning, second query and suspension notice issued to the Appellant there is no place on record that the Head of Department in this case instituted an administrative enquiry or reported the matter to the Provost and or recommended any disciplinary measure against the Appellant as required by regulation 6.1 (c); the issuance of queries is the duty of the Head of department not the Registrar and by virtue of regulation 6.1. (a) and (b) it is only the Provost that is empowered to discipline any senior staff of the 1st Respondent. The Provost can only donate his power to discipline to 4th Respondent (the Registrar) in cases involving junior staff.

The Appellant’s application for certiorari dated 13th February, 2007 was before the trial court seeking to quash the afore-mentioned 4th Respondent’s ineffective actions, is meritorious and ought to be granted. See ANPP V R.O.A.S.S.D (2005) 6 NWLR (Pt. 920) 140; Ortese V Military Gov. Benue State (1991) 4 NWLR (Pt. 183) 102;
With respect, the learned trial Judge was wrong to have found nothing wrong in the process followed in meting the said disciplinary actions against the Appellant by the 4th Respondent even though contrary to the statutory laid down procedure of the 1st Respondent. This failure to comply with the regulations affect fundamentally the right of the Appellant and the implication of the infractions is that the whole actions and proceedings are of no effect whatsoever on the Appellant. The Respondents cannot place something on nothing and expect it to stand, it will fall. This means that since the foundation is faulty, the whole disciplinary actions also collapsed. I resolved issue one in favour of the Appellant. This resolution suffices to dispose of the appeal, however, I will visit and determine the remaining issues in this appeal.

ISSUE TWO
On this issue the Appellant submitted that fair hearing is a constitutional right that is not limited to giving opportunity to the Appellant to defend herself within a reasonable time but includes an opportunity to be tried and punished by an Independent and Impartial disciplinary body.
Learned counsel relied on section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended to further submit that the 4th Respondent (the Registrar) has without due regard to the above, made himself the complainant (accuser), prosecutor and the Judge against the Appellant; so also the three other members of the disciplinary committee Dr. Maimuna Yaroson – 3rd Respondent, Dr. Bukar Bukarbe (representing Federal Ministry of Education) and Dr. Musa Balarabe (representing Ahmadu Bello University) are also members of the 2nd Respondent which counsel submitted constitutes likelihood of bias. He cited in support the cases of Federal Republic of Nigeria v Abiola (supra) and Ogboh v Federal Republic of Nigeria (Supra).

While the Respondent learned counsel on his part argued that the Appellant is unable to show the membership and constituents of the council of the Respondents which considered the proceeding and recommendation of the committee. That the trial court was fundamentally shielded by Appellant from knowing such facts as well as this court. He argued that the burden is on the Appellant to prove and not on the Respondent who denies. Learned counsel relied on Otarun & Sons Ltd v Idris (Supra) and Aiyetoro v N.A.C.B Ltd (Supra).

Section 36 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides:-
(1) In the determination of civil right and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
a) Provides for an opportunity for the persons whose right and obligations may be affected to make presentations to the administering authority before that authority makes the decision affecting that person; and
b) Contains no provisions making the determination of the administering authority final and conclusive.
Fair hearing as enshrined above in our Constitution encapsulated the whole principles of natural Justice which have their roots in the two maxims of Audi Alteram Partem which connotes that a person must be heard and be giving a reasonable opportunity of hearing which is sine qua non and imperative for the court or any statutory authority to afford a party before passing its order or decision. And nemo judex in causa sua which implies that no one should be a Judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none. The oft-quoted aphorism that ‘not only must justice be done but must manifestly and undoubtedly seen to be done ‘made it obvious.

In the instance case, this issue focus more particularly on the second rule of the principles of natural justice above; the 4th Respondent as evidenced earlier initiated the complaint against the Appellant issued the first query followed by a warning and subsequently issued the Appellant the 2nd query and suspension see exhibits G4, G5, G6 and G7 on pages 61 to 65 of the printed record respectively. As stated earlier the 4th Respondent has no any authority whatsoever to unilaterally usurp the functions of others to issue the said punitive processes under the 1st Respondent’s conditions of service.

The 4th Respondent with some other persons acted as the constituents of the Appointments, Promotion and Disciplinary Committee that tried and found the Appellant guilty of a crime of plagiarism and recommended to the Council of the 1st Respondent (2nd Respondent) to finally dismissed her from the service of the 1st Respondent; the Registrar (4th Respondent) who also acted as the secretary to the 2nd Respondent issued the notice of dismissal to the Appellant Exh. B (see page 130 of the Record).

In my humble view, doubt as to real likelihood of bias is thereby created on the capacities on which the 4th Respondent acted. It was said in Kenon v Tekam (2001) 14 NWLR (733) p.12, the term “Real likelihood” may not be capable of exact definition, since circumstances giving rise to it may vary from case to case but it must mean at least. “A substantial possibility of bias.” This may arise because of personal attitudes and relationships such as personal hostility; personal friendship; family relationship; professional and vocational relationship; employer and employee relationship; partisan in relation to the issue at stake, and a whole host of other circumstances from which, the inference of a real likelihood of bias may be drawn” per Aniagolu, JSC ( p. 40, Paras. B-D)

On a careful examination of all the records before us, I have not seen any petition or a complaint made to the council of the 1st Respondent on the allegation of plagiarism by any individual or group of individuals, not even by D.Z. Reinfat but only by the Registrar (4th Respondent) therefore he actually acted as the complainant (accuser), prosecutor, Judge and the executor of the judgment in this case. This is contrary to the rule of natural justice nemo judex in causa sua.

The disciplinary committee included in it membership the 3rd Respondent (Provost) who acted as the chairman of the disciplinary committee, representative of the Federal Ministry of Education, representative of Ahmadu Bello University. (See exhibit B at page 139 of the printed record). Which the Appellant learned counsel further submitted that they are also members of the 2nd Respondent (the council of the 1st Respondent) and relied further for his submission on Section 3(1) of the Federal Colleges of Education Act Cap F 8 LFN, 2004 which provides the following persons as the composition of the governing council:
Section 3(1) Governing Council
(a) A representative of the federal ministry responsible for education
(b) A representative of the university, who in case of degree awarding colleges, shall come from the university to which the colleges are affiliated for the purpose of moderation;
(c) A representative of the alumni association of the college
(d) Three persons appointed on individual merit on a nationwide basis who should have wide experience of service in the public or private sector.
(e) Two representatives of the academic board of the college;
(f) One representative of the National commission for women
(g) A representative of the national commission for colleges of education and
(h) The provost of the college.

I do not subscribe to the Respondents’ learned counsel submission that the burden to show the composition of the Respondent Council is still on the Appellant. For the Appellant has established by law and facts before this court the membership of the 2nd Respondent (the council of the 1st Respondents). In my firm view the burden then shifted to the Respondents to show if otherwise.

The Respondents having formed an opinion against the Appellant at the disciplinary committee; the same persons participated at the Council to consider the recommendations of the disciplinary committee. It is my respectful view, that the whole of the proceeding, from issuance of query to dismissal notice has not only contravened the principles of natural Justice but also affected the jurisdiction of the committee and council of the 1st Respondent to try the Appellant. See Garba v University Of Maiduguri (Supra); Madukolu v Nkemdilim (Supra) and L. A Lawson v Local Authority Aba (1944) 10 WACA 28 At 229.

The Respondents undeniably conceded as a matter of law that the allegation upon which the Appellant was tried before the disciplinary committee is criminal offence. The Registrar (4th Respondent) in the 2nd Query (exhibit 6 on page 64) issued to the Appellant in respect of the serious nature of the offence stated: “… Indeed this is an offence capable of sending you to jail for years”

The next question that follows in this case is whether the Respondents’ disciplinary committee has the jurisdiction to hear and determine criminal cases? This question has since been answered in the negative to the effect that only regular courts have such jurisdiction by virtue of the Constitution. See Laoye vs. The State (1965) NMLR 111; Obadare & Ors V President, Ibadan West District Grade Customary Court (1964) All NLR 936 at 344 and Sofekun v Akinyemi (1980) 5-7 SC 1 at 737 and Kayode v The State (1966) NMLR 111, Fatayi-Williams CJN at page 18. In Baba v Aviation (supra) cited by the Respondents’ counsel, the Supreme Court Per Nnameka Agu, JSC at p.18 paras G-H said:
“When a person is accused of a crime, once the hearing body is anything less than a jurisdiction body vested with criminal jurisdiction, an administrative body lacks the jurisdiction and competence to try the issue. For such a body is not a court much less a criminal court. Only a court vested with criminal jurisdiction is competent to hear and determine such issue.” In Denloye v medical and dental disciplinary committee (supra) at page 312 the Supreme Court held that:
“In view of all these, we have come to the conclusion that the Tribunal was wrong to have proceeded to try offence punishable under the criminal code and the proceedings in this respect are null and void”
“In effect, where the unprofessional conduct of a practitioner amounts to a crime it is a matter of the court to deal with and once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in Section 3(1b), then the tribunal may proceed to deal with him under the Act.”Also See Legal Practitioners Disciplinary Committee vs. Chief Gani (1985) LPELR SC, 177/1984 NWLR (Pg. 7) 300.”

Therefore the Appellant in the instant case ought to have been tried by a regular court with a competent jurisdiction, if convicted to then face the wrath of the Respondents through the due process of the law. In my view that is what the 1st Respondents’ conditions of service contemplated in regulation 6.6 under interdiction. That is the position of the law not even as Respondents’ counsel contended that since the Appellant admitted committing the crime when asked thus:
Committee: After borrowing another author’s or scholar’s work in your article, what are you supposed to do in your article, so that the actual credit for the areas cited goes to the author while other benefits go to you?
Okorie: I understand. However, I inadvertently omitted acknowledging D. Z. Rimfat in my work.
Committee: As a Senior Lecturer, what are the techniques applied in acknowledging another author’s work after borrowing or citing his work.
Okorie: It is acknowledged either in the main work or the reference section or both as the case may be.
Committee: … Did you actually copy portions of D. Z. Rimfat’s work in your article, “Drug use and Drug Abuse among Youths: Counselling Implication?
Okorie: Yes, but not acknowledging him was an omission.
Committee: Is that all you have to say after lifting three paragraphs and partially lifting six other paragraphs without acknowledging the original author?
Okorie: Actually it was an omission.
This statement “I inadvertently omitted…” in my opinion is not an admission but a good defence to the allegation of plagiarism which the Respondents must disprove, more especially in the case of the Appellant with three articles submitted properly referenced but only the above. I will not say much on it.

The submission of the senior learned counsel for the Respondents, that a disciplinary panel other than regular courts can now try criminal case of gross misconduct and the case of Magit V University of Agriculture Makurdi (supra) relied on by the Respondents’ counsel, with due respect, are both misconception of the settled law. It was said in Garba v University of Maiduguri (Supra) that where persons and authorities assume jurisdiction where they have none they are guilty of denial of fair hearing.
The implication of lack of jurisdiction is that the whole proceeding becomes a nullity ab initio. See Anaekwe v Mashasha (2001) 12 NWLR (Pt 726) P. 70. This issue two is resolved in the Appellant’s favour.

ISSUE NO. 3
The Appellant’s learned counsel on this issue submitted that the trial court granted the Appellant an injunction dated 6/2/2007 that consequent upon the grant of the said injunction the Appellant filed a motion on notice dated 13/2/2007.

Respondents were duly served with both the order of injunction and the motion on notice on 13/2/07. The Appellant further submitted that Respondents in defiance of the said court order issued the Appellant notice of dismissal dated 6/3/2007. That the act of Respondents amounted to contempt of court and that the court ought to have nullified the notice of dismissal. Learned counsel relied on Unipetrol (Nig) PLC V Abubakar (1997) 6 NWLR (PT. 509) 478; Abubakar V Unipetrol Nig. PLC (2002) 8 NWLR (PT. 769) 242 at 251-252.

The learned counsel for the Respondents in his response submitted that the letters which the orders sought to stay are those contained on pages 117-119 of the record of appeal- Warning and Notice of Dismissal. That the Appellant sought the said injunction order on 13th February, 2007 whereas the Respondent had effectively suspended the Appellant from service since 30th January, 2007. That one case cannot have general and unlimited application to the extent of holding the Respondents back from considering any other matter in relation to the Appellant. And urged this court to so hold.

Clearly, the Respondents are not in denial of the fact that there was an order of injunction issued against them by the lower court on 6th February, 2007 pending the determination of the suit; that the Appellant filed a motion on notice dated 13th February, 2007; and that both were duly served on all the Respondents on the 13th February, 2007 as shown on pages 100-102, 66,122, and 123 of the printed record. The Respondents had also conceded that it was after they received the said court process that they subsequently and defiantly issued the Appellant Notice of Dismissal (Exh. B on page 130) dated 6th March, 2007.

The pertinent part of the order of injunction is order number 4 and for ease of reference it’s adumbrated below:
It is herby ordered as follows:
“… that the grant of leave herein sought shall operate as a stay of effect and operation on the applicant of the entire proceedings, decisions and recommendations of the emergency meeting of the council of the Ist Respondent and punitive letters dated 26th January, 2007 and 3rd January, 2007 written by the 4th respondent to the applicant pending the determination of this suit.” (Italic mine)

To start with, the question posed by the Respondents’ senior learned Counsel, whether the Respondents are helpless in taking decision on other disciplinary issues on the Appellant simply because the Appellant has taken the Respondents to court over one separate matter of misconduct? The said order is to stay, make and render the steps taken in the proceedings ineffective but for a period of time, pending the determination of the suit.
The order is not meant to cancel the said punitive letters. It is meant to maintain the status quo of the parties preceding the issuance of the order.
See Madubuike v Madubuike (2001) 9 NWLR (Pt. 719) 689. And in F.D.B. Fin. Serv. Ltd v Adesola (2001) 6 NWLR (pt. 710) 690 at 697 it was held in respect of injunctive order that “status quo ante bellum is the state of affairs existing during the period immediately preceding the issue of the writ”. Accordingly this injunction order in the instant case to say the least stay generally any further other disciplinary action or issues taken or to be taken or the execution of any punitive measures taken by the Respondents against the Appellant, pending the determination of the suit. Therefore any action of the Respondents against the Appellant contrary to the said order is regarded as contempt of the court and such action taken is invalid. See Access Bank Plc v U.L.O Consult Ltd (2009) 12 NWLR (Pt. 1156)534.

I have well considered and scrutinized the whole records of appeal before us; however, I have not in my humble opinion found the Respondents action as one within the exception of the above rule. Therefore, I come to the conclusion that the Respondents’ acts of placing the Appellant on half salary of the sum of N42, 847.51 as February salary against N100, 497.35 paid as full salary in January as a punitive effect of the letter dated 30th January, 2007 issued and the notice of dismissal issued on the 6th March, 2007 are all null and void and of no any legal effect. I so hold. This issue also is resolved in favour of the Appellant against the Respondents.

Therefore this appeal succeeds as a whole and its hereby allowed. The judgment of the trial court delivered on the 9th June, 2008 is hereby set aside. There shall be costs of N50, 000.00 only to the Appellant against the Respondents.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

AMINA AUDI WAMBAI, J.C.A.: I have had the privilege of reading in advance the lead Judgment delivered by my learned brother Uwani M. Abba Aji, JCA.
His Lordship has adequately dealt with all the issues placed before the Court for determination.
I agree with the sound reasoning and conclusions reached by my learned brother that the appeal has merit. I also allow the appeal and abide by the consequential orders made including the order on costs.

Appearances

S. A. Apinega Esq.For Appellant

AND

Yemi S. Adekunle Esq.For Respondent