ADO v. ABU GOVERNING COUNCIL & ORS
(2022)LCN/16066(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/K/166/2021
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
YAKUBU ADO APPELANT(S)
And
1. AHMADU BELLO UNIVERSITY GOVERNING COUNCIL 2. VICE CHANCELLOR, AHMADU BELLO UNIVERSITY 3. THE REGISTRAR, AHMADU BELLO UNIVERSITY RESPONDENT(S)
RATIO
THE PRINCIPLE OF HE WHO ASSERTS MUST PROVE
First and foremost, it is trite law laid down by a plethora of case law that he who asserts must prove. See MAIHAJA VS. GAIDAM (2017) LPELR–42474 (SC) where the Supreme Court held that:
“Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” PER IDRIS, J.C.A.
WHETHER OR NOT ADMITTED FACTS ARE THE BEST FORM OF EVIDENCE
This is because it is trite law that admitted facts are usually regarded as the best evidence. See the case of DIN VS. AFRICAN NEWSPAPERS OF NIG. LTD (1990) 2 NSCC (PT. 2) 313. Additionally, the Minutes of the 151st Ahmadu Bello University Governing Council meeting Exhibit D13, shows that the Council consisting of the Chairman (Arch Mohammed Dewu) received Exhibit D11 which is the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (SSDC) 25th Annual Report. The first element of the Statute 8 of the Ahmadu Bello University Law was therefore fulfilled. PER IDRIS, J.C.A.
THE PRINCIPLE OF NATURAL JUSTICE
This relates to the second element of Statute 8 of the Ahmadu Bello University Law which requires that the employee be given a reasonable opportunity to be heard by the Council. Counsel for the Appellant relied on the case of F. U. T. MINNA VS. OLUTAYO (2018) ALL FWLR (PT. 935) PAGE 1255 AT PAGE 1252 in submitting that the principle of natural justice demands that a person accused of misconduct must be afforded the opportunity to:
“(a) know the allegation against him;
(b) be present when the case against him is heard, and
(c) not only to state his side of the allegation but also to contradict the case against him by the cross-examination of the witnesses called by his accusers.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, appealed against the decision of the National Industrial Court, Kaduna Division in Suit No. NICN/ABJ/348/2018 delivered on the 4th day of February, 2021 by Honorable Justice Sinmisola O. Adeniyi.
The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that the Appellant commenced an action challenging his unlawful termination /dismissal from Ahmadu Bello University, Zaria. The Appellant as plaintiff in the Court below, claimed against the Respondents as defendants, the following reliefs:
a. DECLARATION that the dismissal of the Claimant vide dismissal letter dated 11th February, 2013 from the service of Ahmadu Bello University unlawful, void and has no effect.
b. A DECLARATION that the claimant is still a staff of Ahmadu Bello University.
c. AN ORDER setting aside the dismissal letter dated 11th February 2013
d. AN ORDER directing the Defendants to pay the Claimant herein, all salaries and/or any other entitlement due or to which he is entitled to from the day his salary was stopped to the day the Defendants comply with this order.
e. N12,000,000.00 (Twelve Million Naira) only General Damages.
f. Cost of action
And for such further order or other order(s) as the Honourable Court may deem fit to make in the circumstance of this case.
ALTERNATIVELY
a. AN ORDER directing the defendants to change the action taken on the claimant from Dismissal to Termination. And for such further order or other order(s) as the Honourable Court may deem fit to make.
The Appellant’s case at the lower Court was that he was suspended from his employment with the 1st Respondent based on a petition written to the Respondents. That, while he was on suspension he received three queries by which he was alleged to have committed three different acts of misconduct. The Appellant replied all the queries after which he was dismissed from service.
The Appellant then brought an action stating that he was not given a fair hearing and the lower Court disagreed.
Dissatisfied with the judgment of the trial Court, the Appellant filed an Amended Notice of Appeal dated the 22nd day of February, 2021 comprising of 2 (two) grounds of appeal. The parties adopted and filed their respective briefs of argument.
In the Appellant’s brief of argument dated the 3rd day of September, 2021 as settled by his counsel Mohammed Sani, Esq the following 2 (two) issues for determination were distilled from the grounds of appeal thus:
1. Whether the trial Judge was right to hold in his judgment that the onus is on the Appellant to prove that he did not appear before the joint committee of Council and Senate despite the unambiguous wordings of the letter of invitation dated 18th January, 2013 and dismissal letter dated 11th February, 2013 among other documents. (Distilled from ground one of the grounds of appeal)
2. Whether from the totality of the evidence and/or documents from the Respondents, a fair trial was indeed accorded to Appellant at the Senior Staff Disciplinary Committee as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended when he was not given the opportunity to see and cross-examine any of the witnesses that testified against him to warrant his dismissal from the service of Ahmadu Bello University Zaria. (Distilled from ground two of the grounds of appeal)
On issue one learned counsel for the Appellant argued that the learned trial Judge misapprehended the law and thereby acted in error when he decided that the Appellant did not prove that he did not appear before the Joint Committee of the Council and Senate. Counsel further argued that by virtue of Statue 8 of the Ahmadu Bello University as well as Section 5d(iv) of the Regulation Governing the Conditions of Appointments of Senior Staff of Ahmadu Bello University, the Appellant ought to have appeared before the Joint Committee of the Council and the Senate for any disciplinary action and not the Senior Staff Disciplinary Committee. Counsel submitted that the Appellant was invited to appear before the Senior Staff Disciplinary Committee vide letter dated 18th January, 2013 marked as Exhibit C6 and the Appellant was dismissed vide a letter dated 11th February, 2013 marked as Exhibit C7, which was pursuant to the report received by the 1st Respondent from the Senior Staff Disciplinary Committee. It was then submitted that based on the evidences the Appellant did not appear before the Joint Committee of the Council and the Senate. Additionally, it was further submitted that the Appellant stated in evidence that he did not appear before the right committee and that the Court had decided in the case of OHA VS. UZOMA (2015) ALL FWLR PART 790 that “the best evidence of the contents of a document is the production of that document.”
Counsel also argued that apart from the oral testimony of DW1, the Appellant appeared before the Joint Committee of the Council and Senate and no other document shows that the Appellant appeared before the Joint Committee of the Council and Senate. Council submitted that it is a misconception of law to assume that the Senior Staff Disciplinary Committee is the same as the Joint Committee of the Council and Senate. The case of OSITA VS. NANKA MKRO FINANCE BANK LTD (2016) ALL FWLR (PT. 946) AT PAGE 1078 RATIO 7 was relied on.
Counsel then argued that Exhibits C6 and C7 were presumed to be authentic having been admitted without contest and also that a document is presumed to be authentic if it is properly executed by the government official. The case of UKEJE VS. UKEJE (2014) ALL FWLR (PT. 730) AT PAGE 1323 was cited. It was then argued that the contention of the Appellant was to the effect that despite the unambiguous wordings of Exhibits C6 and C7 the Appellant did not appear before the Joint Committee of the Council and Senate and the Respondents could not provide a credible defence to counter same by telling the Court that the committee the Appellant appeared before is the same one enshrined in the statute. Additionally, it was submitted that the issue of non-appearance before the Joint Committee of the Council and Senate was indeed pleaded, evidence adduced and documents tendered but the Court pretended not to see it and maintained that the onus remains on the Appellant to prove same. This, the Appellant argued led to a miscarriage of justice as the judgment was perverse. The case of GLOBAL SOAP & DETERGENT INDUSTRY LTD VS. N. A. F. D. A. C. (2011) ALL FWLR (PT. 599) PAGE 1025 AT PAGE 1030 was cited in support.
Counsel for the Appellant then submitted that assuming but not conceding the fact that the said Senior Staff Disciplinary Committee is same as the Joint Committee of the Council and Senate then it is clear by Regulation 8(5)(d) of the ABU statute that before taking a decision, the council shall receive and consider a report on the case by the Joint Committee of the Council and Senate consisting of the chairman of the council and equal members of the council and senate. This, the Appellant argued shows that the chairman of the council must indeed be the person that chaired the committee that adviced the dismissal of the Appellant to the governing council. It was submitted that the Chairman then was one Arc. Mohammed Dewu and that the said Mr. Dewu according to the Appellant, chaired the appeal session which means he was further part of the committee that recommended the dismissal and also part of the appeal panel which negates the principle of natural justice. The case of UNIVERSITY OF UYO VS. ESSEL (2006) ALL FWLR (PT. 315) PAGE 80 AT 86 R. 7 was cited in support.
Council also argued that the purported report of the Joint Committee of the Council and the Senate on Senior Staff Disciplinary Matters that recommended the dismissal of the Appellant was not signed and likewise the minute of the 173rd (Regular) meeting of the Governing Council of Ahmadu Bello University was also not signed and endorsed by the council members. The cases of GLOBAL SOAP & DETERGENT INDUSTRY LTD VS. N.A.F.D.A.C. (SUPRA); IKEM VS. DAH PACKAGING LTD (SUPRA); AREGBESOLA VS. OYINLOLA (2011) ALL FWLR (PT. 590) PAGE 1292 AT PAGE 137 and IRONKE VS. UBA PLC (2017) ALL FWLR (PT. 879) PAGE 650 AT PAGE 658 R. 10 were relied on.
Counsel to the Appellant argued that failure of the Appellant to appear before the Joint Committee of the Council and Senate is a clear violation of the Appellant’s fundamental right to fair hearing enshrined in Section 36 of the 1999 Constitution as amended. Additionally, Counsel argued that having led and tendered evidence that he did not appear before the Joint Committee of the Council and Senate and the unworthiness of vital documents of Exhibits D11 and D13 the Respondents obviously had nothing to fall on as defence and the trial Court ought to have acted on the Appellant’s evidence but instead disregarded it. Furthermore, Counsel argued that though some of the Appellant’s reliefs at the trial Court were declaratory which the Appellant ought to have proved, and that the Appellant have taken advantage of Exhibit D11 and D13 tendered by the Respondents as decided by the case of PETER DA’APE & ANOR VS. IBRAHIM MUS & ORS (CA/YL/EPT/AD/SHA/201/ 2019).
On issue two counsel submitted that the trial Court did not properly consider the issue of fair hearing or even evaluate the evidence of PW1 properly with regard to fair hearing and natural justice. The case of AYORINDE VS. OYO STATE GOVERNMENT (2007) ALL FWLR (PT. 365) PAGE 709 AT PAGE 711 was relied on. Counsel then argued that the contention with regard to issue two of this appeal is to the effect that the Appellant was not given the opportunity to see the witnesses that made such grievous allegation against him and testified against him. It was then submitted that the touchstone for determining the observance of fair hearing in trials is not the question of whether any injustice has been occasioned due to want of hearing but rather the question of whether opportunity of hearing was afforded to the parties entitled to be heard and also consists of the whole hearing. The case of EMENEGOR VS. STATE (2010) ALL FWLR PART 511 PAGE 884 was relied on.
In conclusion, learned counsel for the Appellant argued that an administrative panel such as the Ad-Hoc committee in its enquiries may not necessarily strictly adhere to such rules of natural justice as it exists in a Court as known to our law. It was submitted that it is standard and basic that rules of fair hearing, natural justice can neither be compromised nor waived.
The Respondent on their own part filed a Respondent brief dated the 23rd day of September, 2021 and settled by A. Is’haq, Esq. in the said brief, the Respondents’ Counsel adopted the Appellant’s two issues for the determination of this appeal and same is reproduced thus:
1. Whether the trial Judge was right to hold in his judgment that the onus is on the Appellant to prove that he did not appear before the joint committee of Council and Senate despite the unambiguous wordings of the letter of invitation dated 18th January, 2013 and dismissal letter dated 11th February, 2013 among other documents. (Distilled from ground one of the grounds of appeal)
2. Whether from the totality of the evidence and/or documents from the Respondents, a fair trial was indeed accorded to Appellant at the Senior Staff Disciplinary Committee as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended when he was not given the opportunity to see and cross-examine any of the witnesses that testified against him to warrant his dismissal from the service of Ahmadu Bello University Zaria. (Distilled from ground two of the ground of appeal)
Counsel for the Respondents submitted that the Appellant’s assertion that he did not appear before the Joint Committee of Council and Senate is neither true nor supported by the evidence before the trial Court. It was argued that the predominant evidence before the trial Court was that the Appellant appeared before the Respondent’s Joint Committee of Council and Senate on Senior Staff Disciplinary Committee (SSDC). Counsel then argued that Exhibit D10, Exhibit D16 and Exhibit D17 clearly showed that the Appellant appeared before the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters also known as SSDC.
Counsel referred to pages 138, 152 and 155 of the Record of Appeal and pages 22–26 of the Respondent’s Witness Statement on Oath at page 89 of the Record of Appeal. The learned Counsel for the Respondents submitted that under cross-examination DW1 (Mal. Shehu Usman Bello) said:
“the claimant was invited to appear before the Joint Council and Senate Committee SSDC… the SSDC is the same as a Joint Council on Disciplinary Matter….”
Additionally, Counsel for the Respondent submitted that the Appellant himself admitted that he appeared before the Respondent’s Joint Council and Senate Committee on Senior Staff Disciplinary Matters thus:
“the allegation of selling certificates of the Defendants before Joint Council is not true… I was queried and replied to the query. I was also invited to the Joint Council and Senate Disciplinary Committee, I appeared but I was not given fair hearing. I also appeared before the Council. I made my representation but I was not given fair hearing. After my dismissal from the Defendants, I continued to receive salaries for 4 years. The salary was stopped in April 2017… I am also standing trial for fraud before the Magistrate. I did not have the opportunity to object to the composition of the Joint Council and Senate Committee….”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Counsel for the Respondent further argued that the evidence placed before the trial Court and the findings made thereat by the trial Court clearly established that the Appellant not only appeared before the Respondent’s Joint Committee of Council and the Senate on Senior Staff Disciplinary Matters (SSDC) but duly appeared before the Governing Council of the Respondents and made representations in compliance with the Respondent’s statutory provisions for disciplining erring staff. Additionally, Counsel for the Respondents submitted that the Appellant commenced this suit in December 2018, nearly 5 (five) years after the accrual of the cause of action and that the Appellant was afforded fair hearing plus the adequate opportunity to defend himself. The cases of AGBITI VS. NIGERIAN NAVY (2011) 2 SCJN 1 AT 30 and PAN AFRICAN VS. SHORELINE (2010) 3 SCNJ 179 AT 181 were relied on.
Furthermore, Counsel to the Respondents submitted that it is trite law that where the evidence adduced at the trial reveals that the principles of fair hearing was observed, it is for the person alleging non-observance to adduce the contrary. The cases of NNPC VS. CLIFCO NIG. LTD (2011) 4 SCNJ 197 AT 144 and UBN PLC VS. ASTRA BUILDERS LTD (2010) 2–3 SC (PT. 1) 59 AT 92 were cited.
In conclusion, Counsel for the Respondents argued that Exhibits D11 and D13 are not whole Reports or Minutes but extracts of same thus rendering the argument of the Appellant’s counsel on the documents not being signed without basis. Counsel then urged the Court to resolve the issues in their favour
RESOLUTION OF THE ISSUES
Upon a review of the brief of arguments filed by the parties herein, I shall adopt the issues for determination distilled by the Appellant as they; in my opinion reflect all the issues that have arisen for the resolution of this appeal. The issues are again reproduced hereunder as follows:
1. Whether the trial Judge was right to hold in his judgment that the onus is on the Appellant to prove that he did not appear before the Joint Committee of Council and Senate despite the unambiguous wordings of the letter of invitation dated 18th January, 2013 and dismissal letter dated 11th February, 2013 among other documents.
2. Whether from the totality of the evidence and/or documents from the Respondents, a fair trial was indeed accorded to Appellant at the Senior Staff Disciplinary Committee as enshrined in S. 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended when he was not given the opportunity to see and cross-examine any of the witnesses that testified against him to warrant his dismissal from the service of Ahmadu Bello University Zaria.
ISSUES ONE AND TWO
As the parties did in their respective briefs of arguments, I shall also resolve both issues one and two together. The first point of argument relates to whether the learned trial Judge was right when he held that the onus is on the Appellant to prove that he did not appear before the Joint Committee of Council and Senate. The Appellant had maintained that Exhibits C6 the letter dated 18th January, 2013 inviting him to appear before the Senior Staff Disciplinary Committee and Exhibit C7 the Appellant’s dismissal letter dated 11th February, 2013 show that the Appellant did not appear before the Joint committee of Council and Senate. The Appellant had further contended that apart from the oral testimony of DW1 to the effect that the Appellant appeared before the Joint Committee of Council and Senate that there is no document to show this. Additionally, that it is a misconception of law to assume that the Senior Staff Disciplinary Committee is the same as the Joint Committee of Council and Senate. While the Respondents on their part have asserted that the Appellant appeared before the Respondents’ Joint Committee of Council and Senate on Senior Staff Disciplinary Matters also known as Senior Staff Disciplinary Committee (SSDC). The Respondents have relied on Exhibit D10, Exhibit D16 and Exhibit D17 to submit that the Appellant appeared before the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (SSDC).
First and foremost, it is trite law laid down by a plethora of case law that he who asserts must prove. See MAIHAJA VS. GAIDAM (2017) LPELR–42474 (SC) where the Supreme Court held that:
“Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
As such, the learned trial Judge was right to hold that the Appellant, who alleged that the he did not appear before the right committee, had the duty to prove so.
As it relates to whether the Appellant appeared before the Joint Committee of Council and Senate, the answer to this question can be found in the record of Court proceedings. However, I must first state the Section of the law that applies to this issue, Statute 8(5) of the Ahmadu Bello University Laws Cap 14 Laws of the Federation of Nigeria 2004 provides:
“Subject to the provisions of this Statute and to the terms of his appointment, no member of the senior staff shall be dismissed save by decision of the Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment:
Provided that –
(1) before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and the Senate consisting of the Chairman of the Council as Chairman and equal numbers of members of the Council and of the Senate;
(2) no person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council.”
While Section 5d (IV) of the Regulations Governing the Conditions of Appointment of Senior Staff of Ahmadu Bello University provides thus:
“(iv) Where the Vice-Chancellor considers that a proper case of misconduct has been made against the staff member, he shall, on the strength of the case, refer the matter to the Senior Staff Disciplinary Committee for appropriate disciplinary measure in accordance with the University Statutes.”
It is pertinent to state here that the parties made heavy weather of this issue of appearance and non-appearance before the right committee, however, as the trial Judge held, by virtue of the provisions of Statute 8(5) of the Ahmadu Bello University Law, before a decision can be taken to dismiss an employee such as the Appellant, the Council consisting of the Chairman must do the following two things:
1. Receive and consider a report of the Joint Committee of Council and the Senate on the case with the Chairman presiding; and
2. Give the employee reasonable opportunity of being heard by the Council.
From the record of proceedings, the Appellant at page 274 of the record, during his cross-examination said:
“… I know Shehu Usman Bello, he is of the Security Division. He is my friend. I was queried and replied to the query. I was also invited to the Joint Council and Senate Disciplinary Committee, I appeared but I was not given fair hearing. I also appeared before the Council. I made my representation but was not given fair hearing… I did not have the opportunity to object to the composition of the Joint Council and Senate Committee….”
This piece of evidence is a clear admission that the Appellant appeared before the Joint Committee of Council and Senate Disciplinary Committee. This is because it is trite law that admitted facts are usually regarded as the best evidence. See the case of DIN VS. AFRICAN NEWSPAPERS OF NIG. LTD (1990) 2 NSCC (PT. 2) 313. Additionally, the Minutes of the 151st Ahmadu Bello University Governing Council meeting Exhibit D13, shows that the Council consisting of the Chairman (Arch Mohammed Dewu) received Exhibit D11 which is the Joint Committee of Council and Senate on Senior Staff Disciplinary Matters (SSDC) 25th Annual Report. The first element of the Statute 8 of the Ahmadu Bello University Law was therefore fulfilled.
At this juncture, I will like to tackle the issue of Exhibits D11 and D13 mentioned above not being signed and endorsed by any of the members of the Council. To my mind, the Exhibits are certified true copies (CTC) of public documents and Section 105 of the Evidence Act provides that:
“Copies of documents certified in accordance with Section 104 maybe produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
This means that Exhibits D11 and D13 which are extracts of public documents are proper before the Court even though they are not signed. This is because certified copies are by statute deemed to be originals and so when a document is certified, the Court is left with no alternative but to accept the authenticity of its contents. See Section 146 of the Evidence Act, 2011 on the presumption as to the genuineness of certified true copies. See also the case of OREDOLA OKEYA TRADING CO. & ANOR VS. BANK OF CREDIT & COMMERCE INT’L & ANOR (2014) LPELR–2011 (SC).
I have studied both documents carefully, and they comply with Section 104 of the Evidence Act which provides:
“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”
The next point raised by the Appellant was that the trial Court did not properly consider the issue of fair hearing. The Appellant also contended that he was not given the opportunity to see the witnesses that made the allegations against him. This relates to the second element of Statute 8 of the Ahmadu Bello University Law which requires that the employee be given a reasonable opportunity to be heard by the Council. Counsel for the Appellant relied on the case of F. U. T. MINNA VS. OLUTAYO (2018) ALL FWLR (PT. 935) PAGE 1255 AT PAGE 1252 in submitting that the principle of natural justice demands that a person accused of misconduct must be afforded the opportunity to:
“(a) know the allegation against him;
(b) be present when the case against him is heard, and
(c) not only to state his side of the allegation but also to contradict the case against him by the cross-examination of the witnesses called by his accusers.”
Although the case of F. U. T. MINNA VS. OLUTAYO (supra) relates to examination malpractice allegedly perpetrated by a student, I shall adopt the 3 (three) elements above in determining whether the Appellant was given a fair hearing.
With regard to the allegations leveled against the Appellant, he (the Appellant) received 3 (three) queries which the Appellant replied to. The queries were admitted in evidence and marked as Exhibits C4, C4A and C4B respectively, while the replies were admitted in evidence and marked as Exhibits C5, C5A and C5B respectively. This to my mind shows that the Appellant did have knowledge of the allegations against him and it answers the question of whether the Appellant knew of the allegations against him in the affirmative.
To the question of whether the Appellant was present when the case against him is heard, it has already been established by the Appellant’s own admission under cross-examination that he was invited by the Joint Committee of Council and the Senate and he appeared before them and made his representations.
Furthermore, the Appellant even appealed against the decision of the Council and was again invited to make representations.
Finally, with regard to the opportunity to cross-examine the witnesses, there is unchallenged evidence extracted from DW1 during cross-examination that the Appellant was given the opportunity to call evidence during the hearing. This means that the Appellant was allowed to challenge the allegations against him.
At this juncture, I will also like to state that he who asserts must prove as Section 131(1) of the Evidence Act, firmly places a duty on whoever desires any Court to give him judgment on any civil right or obligation dependent on the existence of facts which he asserts, to prove that those facts exist. The Appellant has not pointed out or shown any legal evidence that he was not given a fair hearing. The learned trial Judge rightly held at page 303 of the record that:
“… I had crucially reviewed the facts and evidence on record; I am of the firm view that the Claimant was given reasonable opportunity of being heard. The Defendants’ issues and served on the Claimant the queries containing the different allegations, the Claimant replied the queries and made representations both at the SSDC and Council; he was given further opportunity to be heard and have his case reviewed on appeal.”
I am in total agreement with the trial Court that the Appellant was indeed given reasonable opportunity to be heard by the Council as stipulated by Statute 8 of the Ahmadu Bello University law which is the basis of his employment and which also specifies the terms of his dismissal.
Both issues are therefore resolved in favour of the Respondents against the Appellant.
In the circumstances, I hold that this appeal lacks merit and it is therefore hereby dismissed. The judgment of the National Industrial Court, Kaduna Division in Suit No. NICN/ABJ/348/2018 delivered on the 4th day of February, 2021 is hereby upheld.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother Mohammed Baba Idris, JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and ought to be dismissed.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
M. Sani, Esq. For Appellant(s)
A. Suleiman, Esq. For Respondent(s)