DR. ALI S. Y BAGAJI VS KOGI STATE UNIVERSITY ANYIGBA

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 23^rd day of April, 2018

SUIT N0: NICN/LKJ/05/2017

BETWEEN:

ALI S. Y BAGAJI

Claimant

And

KOGI STATE UNIVERSITY ANYIGBA

Defendant

Representation:

W.A. Aliwo with D.A. Olorunmaye, A.J. Amana and T. Nwogbo for the Claimant

J.O. Ajewole with R.O. Olaniyi, I.O. Olukotun and A.O. Akande for the Defendant

Judgment

This suit was commenced via a complaint filed on the 23^rd of August, 2017. The complaint was accompanied by a statement of material fact, statement of claim, witness statement on oath, list of witnesses, list of documents to be relied upon and copies of the documents. The claimant is via the complaint seeking the following reliefs from this court to wit:

i)A declaration that his purported dismissal by the Defendant is preposterous, unlawful, unconstitutional, null and void and of no effect.
ii)A declaration that the Claimant’s withdrawal from the employment of the defendant was valid having regards to the circumstances and Kogi State University Laws and the Conditions and Scheme of Service of the Kogi State University Anyigba.

iii) A declaration that the suspension of the Claimant is illegal same having been done outside the ambit of the Provisions of the Conditions and Schemes of Service of Kogi State University 2008 and the University Law as amended which are the law that regulate the activities of the Defendant.

iv)A declaration that the steps taken by the Defendant and/or her agents setting up a committee to investigate the allegation against the Claimant after the Claimant resignation were unlawful, null and void.
v)An order of perpetual injunction restraining the Defendant by herself or through her agents from giving effect to the purported dismissal of the Claimant.
vi)A declaration that the act of the Defendant’s administrative panels amount to breach of the Claimant’s constitutional right of fair hearing.

vii) A declaration that the Claimant is entitled to the sum of N1,002,909.98 being half of his salaries for the period of December 2015 which he was wrongfully denied by the Defendant.

viii) An order setting aside the dismissal of the Claimant from the employment of the Defendant/or directing the Defendant to withdraw the said letter of dismissal dated 4^th July, 2017.

ix)The sum of N5,000,000.00 (five million naira) only be paid to the Claimant by the Defendant as general damages.
x)The sum of N5,000,000.00 (five million naira) only be paid to the Claimant by the Defendant as special damages for defamation of character and malicious circulation of the purported letter of dismissal.
xi)A declaration that the Claimant should be paid the outstanding balance of his earned academic allowance.

In response, the Defendant filed a statement of defence on 19^th October, 2017 and accompanied same with a list of witnesses, statement on oath, list of documents to be relied upon and copies of same. The Defendant through the statement of defence is urging this court to dismiss the Claimant’s claim as frivolous and vexatious.

The Claimant opened his case on 25^th of October, 2017 and called one witness who was the Claimant in the person of Dr. Ali S.Y. Bagaji as CW1. The said CW1 adopted his witness statement on oath filed on the 27^th of August 2017 as his evidence in chief and it was marked as C1.

Through the same witness, 18 documents were tendered as exhibits. The documents were admitted and marked as exhibits C2 – C19.

Arising from the statement of material fact, statement of Fact, statement of claim and C1, the case of the Claimant is that he was an employee of the defendant who was sometime in 2010, sponsored by TETFUND to study a Ph.D at University of Exeter, United Kingdom.

On the 16^th June, 2015, the claimant received a memo from his Head of Department Dr. J.O Achegbulu tagged ‘case of plagiarism written by Dr. Daniel Mathew Okwoli mandating the claimant to respond within 48 hours. He responded to the said allegation and within 7 days, a Departmental panel was set up by the HOD Dr. J.O Achegbulu and headed by a personal friend of the petitioner Dr. Emmanuel Abba. The panel within 10 days forwarded it ‘s report to the University Management without recourse to the claimant nor reference to the faculty for further investigation.

Upon the receipt of the panel report, the Registrar, Dr.Y.I Abubakar requested for an explanation and to which the claimant complied within 24 hours. Within 7 days, the claimant received a letter of suspension from the Registrar.

On 13^th July,2015, the claimant was invited to appear before the panel set up to investigate the alleged case of plagiarism which he did on two separate occasions, but the outcome of the said panel was not known to the claimant. On 7^thJanuary,2016, in compliance with section 6.4.3(1) of the Conditions and Scheme of Service of Kogi State University, Anyigba, the claimant put the University Management on notice that he had assumed duty from suspension and have decided to withdraw his service from the University since there was no letter extending his suspension order.

The claimant having withdrawn from the service of the Defendant over a period of one year received four attachments vide whatsapp from mobile No 08037385345 which one out of the four attachments was letter of dismissal signed by the Registrar. The said letter of dismissal was never served on the claimant but was circulated within the University Community.

The claimant then notified the University to withdraw his dismissal letter which they refused/neglected to do.

According to the Claimant the conditions and Schemes of Service of Kogi State University, 2008 and the University law, 1999 as amended in 2013 does not empower the Defendant to set up Panels to investigate allegations of Plagiarism.

During cross examination, the Claimant acknowledged that though the allegation against a certain Dr. Daniel Mathew Okwoli was by nameless and faceless people, investigation would be cumbersome but it is possible. He also maintained that Dr. Okwoli wrote a petition that the Claimant plagiarized the work of his Ph.D. supervisor which was conveyed to him in writing and he responded. He also ascertained that about June 2015 his department set up a panel to look into the allegation. He and his accuser both appeared before the panel. He however maintained that he is just hearing from the counsel that he was found guilty by the committee at the end of the day. He also said the University had a procedure which was not followed. He also stated that he appeared before the investigation panel at the Departmental level where he drew their attention to the fact that they do not have the power to set up the panel but he is not aware of the report. He said his suspension was not extended and he tendered his withdrawal of service with the option of immediate effect as against giving 3 months’ notice. Claimant said he left the school on his own when he felt he was no longer safe.

Upon his discharge, the Claimant closed his case.

On the part of the Defendant, in opening their case, called two witnesses and tendered 21 documents through DW1 after adopting his witness statement on oath filed on the 28^th of November, 2017 which is marked as D1. The documents were admitted and marked as Exhibit D2 – D22 with exhibits D9, D13, D14, D18 and D19 admitted under protest to be addressed in the Final Written addresses.

The second witness also adopted his witness statement on oath marked as DW2.

Arising from the statement of Defence and witness statements on oath, the Defendant acknowledges the fact relating to the Claimant entering into Fellowship Bond with the Defendant whereby the Defendant released the Claimant to undertake a three year course of study leading to a Ph.D in Ethno Political Studies at the University of Exeter, United Kingdom sponsored by a Federal Government of Nigeria agency known as TETFUND (Educational Trust Fund) effective from January 2010 to January, 2013 and that the Claimant returned to Nigeria and resumed duty with the Defendant toward the end of the year 2012.

But by June 2015, the Claimant was alleged to have committed an act of Plagiarism vide a memorandum written by Mr. (now Dr.) Daniel Matthew Okwoli of the Department of Public Administration of the Defendant. The Claimant was invited to appear before one panel after the other and given time to respond to allegation made against him. Eventually he was suspended. While he was suspended, he was told to leave behind his contact address and not to leave Anyigba without doing so and also make himself available for further questioning as investigation is still ongoing.

The Defendant set up another investigation panel to which the Claimant was invited to appear before. He was found culpable and recommended to appear before the Senior staff disciplinary committee but before he was invited to appear, he resumed duty and tendered his notification of resumption and withdrawal of service. The Defendant did not approve the withdrawal owing to the pending disciplinary action.

The defendant found out sometimes in June 2016 that the Claimant had taken up another appointment. By the time the Council of the Defendant was re-constituted in 2017, the Senior Staff Disciplinary Committee was set up and the Claimant was invited again. This time he did not appear. Consequently, the Committee reviewed earlier reports and concluded on the dismissal of the Claimant. The Defendant denies all the insinuation of bias and ill will towards the Claimant and prays this Honourable Court to dismiss the Claimant’s claim for being frivolous and vexatious.

During cross examination, DW1 who is the Deputy Registrar of the Defendant confirmed that the letter of dismissal was signed by the Registrar. That he was not a member of the panel that investigated the case of plagiarism and does not know the names of the members. He also stated that there were 4 panels altogether set up on Claimant’s case. He said all members are supposed to sign the departmental Panel report and faculty panel report. He also stated that he was not in position to see the work the Claimant was alleged to have plagiarized. He agreed that 3 panels sat between 16^th June – 6^th July, 2015. He also confirmed that from February 2016 there was no Council and that the Claimant was on suspension before the Council was constituted. He also confirmed that within the period when there was no council, the University stopped the Claimant’s salary but he is not aware of the re-allocation of the Claimant’s staff quarters. He also confirmed that the Claimant was on half salary between the date of suspension and January, 2016.

He also stated that plagiarism can be implied but confirmed that a staff should not be on suspension for more than 6 months. He also stated that the man whose work was plagiarized was not in the panel but had written representation.

On the part of DW2, who is the head of security unit of the Defendant, he confirmed that one of his duties is to dispatch letters. He said he did not dispatch any letter during the investigation and trial and the one by whatsapp was by J.U. Ahmodu. He confirmed that sometime in July 2017, he sent a whatsapp message to the Claimant to collect some letters. DW2 was shown Exhibit C17 and he confirmed he sent all the documents and that he is with the originals. He also claimed he knows the Claimant’s house but does not know when he was ejected nor his house outside the campus.

The Defendant upon the discharge of DW2 closed their case.

Learned Counsel to the Defendant, J.O. Ajewole filed his Final Written Address on the 16^th of February and adopted same on the 21^st of March, 2018. Arising from the written address, Learned Counsel submitted six issues for determination to wit:

i)Whether the suspension and ultimate dismissal of the Claimant by the Defendant is preposterous, unlawful, unconstitutional null, void and of no effect.
ii)Whether the unilateral withdrawal of the Claimant from the services of the Defendant was valid having regard to the Laws, Conditions and Schemes of Services of the Defendant.

iii) Whether the steps taken by the Defendant and/or her agents in setting up a committee to investigate the allegation of Plagiarism against the Claimant after his resignation were unlawful and void.

iv)Whether the suspension and the ultimate dismissal of the Claimant by the Defendant violates the Claimant’s right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999, as amended.
v)Whether the Claimant is entitled to an order setting aside his dismissal by the Defendant or in the alternative, an order of perpetual injunction restraining the Defendant from giving effect to the dismissal.

vi)Whether the Claimant established and is entitled to his pecuniary claims viz:-

a)N1,002,909.98 being half of salaries for the period of December, 2015.

b) N5,000,000.00 general damages.

c)N5,000,000.00 special damages for defamation.

d)Outstanding of earned academic allowance.

In arguing issue one, learned Counsel to the Defendant, J.O. Ajewole submitted that it is trite law that the onus is on he who asserts to prove. In other words, the onus is on the Claimant to show by evidence adduced before the court how his dismissal by the defendant is preposterous, unlawful, unconstitutional, null and void. Counsel relied on Section 135(1) of the Evidence Act 2011 and the case of Womiloju V. Anibire (2010) 10 NWLR (Pt.1203) 545 at 562 Para H.

i)Learned Counsel also referred this court to paragraphs 14-22, 26-28 of the Claimant’s statement on oath to conclude that The Claimant was afforded ample opportunity to respond to the allegation of Plagiarism made against him by written responses and appearances before the panels.

ii)There is no evidence of bias or ill will against the Claimant established before the court against the panels or any officer of the Defendant.

iii) The Claimant did not adduce evidence to suggest let alone prove that the panels that investigated the allegation against him must report to him before forwarding their findings to the Defendant’s Management.

iv)There is no evidence before the court that the Registrar of the Defendant was ill-motivated in his suspension of Claimant.

v)The Claimant unilaterally refused to participate in the staff screening exercise on the ground that he had withdrawn his service from the Defendant, when the Defendant warned the Claimant vide Exhibit D16 that his withdrawal was not approved.

vi)The Claimant unilaterally on his own volition left the Defendant while a disciplinary action was pending against him despite being warned vide Exhibit D12 not to leave the Defendant’s Community without leaving his contact address behind. He left without leaving his contact address behind.

vii) The Claimant by his own showing vide his deposition in paragraph 27 of his statement on oath admitted that before the documents sent to him by Whatsapp on 20^th July, 2017 there has been an earlier message to him by the Chief Security Officer of the Defendant in this term:

Dr. good Morning. Please you have some letters for collection. Grateful you make arrangement to collect them as suggested in previous SMS messages to you. Meanwhile, I will send their pic to you now. (emphasis mine)

Learned Counsel added that all the principal reliefs sought by the Claimant are declaratory in nature and further submitted that the law is that, the onus lies on the party who seeks declaratory reliefs to establish his entitlement to same. Counsel cited the cases of Oladipo V. Moba LGA 2010 5 NWLR (Pt.1186) 117 at 160 Para E-H and Alao V. Akano (2005) 11 NWLR (Pt.935) 160 at 173.

With Regards to issue two, learned Counsel recounted that the Defendant vide Exhibit D12 placed the Claimant on suspension effective from 6^th July, 2015 without stating the duration of the period of suspension. However, paragraph 6.4.3 of Exhibit D22 (Kogi State University Anyigba Conditions and Schemes of Service) provides for a period of 6 months. He noted that on the 7^th of January, 2016, the Claimant resumed duty and withdrew his services on same day.

Learned Counsel then referred this court to Paragraph 14.2 of Exhibit D22 and submitted that the Claimant’s purported withdrawal of his service from the Defendant is invalid for three reasons, namely:

i)In the light of paragraph 14.2 of Exhibit D22, the option of withdrawal of service is only available to staff of the Defendant who has served for not less than 5 years and not up to 10 years. In paragraph 2 of the Claimant statement on oath, the Claimant deposed that he joined the services of the Defendant in the year 2000 as one of the pioneer staff. I submit that by the time the Claimant offered to withdraw his service vide Exhibit D15, he was already over fifteen years in the employment of the Defendant and the option of withdrawal of service was no longer opened to him.

ii)Assuming but not conceding that the option of withdrawal of service was opened to the Claimant he ought to have given at least three (3) months notice or payment in lieu of and tender in proof the Registrar’s acceptance in writing to this effect. This the Claimant did not do.

iii) It is evident from paragraphs 10, 11 and 12 of DW1 statement on oath that the Claimant was a teaching staff of no mean status with the Defendant having been a Senior Lecturer, an Acting Head of Department and a Deputy Dean. As such except it is otherwise agreed with the Defendant, even where the Claimant has given notice such notice shall expire at the end of a session. However, in this case no notice was given by the Claimant let alone the notice expiring at the end of session.

Counsel then further submitted that it is trite law that where a statute prescribes steps or procedure for effecting an act, the prescription must be strictly followed, failure of which the action taken will be a nullity. Counsel cited the case of Akunesiri V. Okenwa (2001) FWLR (Pt.35) 604 at 626 and concluded the Claimant did not comply with the procedure in Exhibit C22.

Counsel added considering the bond for the study leave, as at the time Claimant purportedly withdrew his services from the Defendant in January, 2016, he was still bonded and under obligation to serve the Defendant for 5 years upon return from the course in 2012 which was not yet complete and as such he could not have validly withdrew his service from the Defendant.

With regards to issue three, learned Counsel quoted Paragraphs 6.3, 6.4, 6.4.1, 6.4.2 and 6.4.3 of Exhibit D22 at Pages 14 and 15 on the procedure for taking disciplinary measures by the Defendant against its staff.

Counsel then submit that the operative terms of the disciplinary procedure are:

i) A staff to be disciplined should be queried.

ii)If circumstances warrant, he should be placed on suspension for maximum of 6 months.

iii) Staff should appear before the Senior Staff Disciplinary Committee during period of suspension.

iv)Staff shall not leave the services of the University until the determination of the case.

v)Staff shall not leave his station during the period of suspension without the written permission of the Registrar and where he does, he shall be liable to dismissal.

Counsel referred to Exhibit D10 as the query, Exhibit D12 is the suspension and by Exhibit D16, the Defendant informed the Claimant in addition to the express provision of Exhibit D22 that he could not withdraw his services from the Defendant while disciplinary action against him was pending and where he did, the consequence will be dismissal.

He concluded that The Claimant having deliberately made himself incommunicado by leaving the Defendant contrary to the directive not to leave while disciplinary action was pending against him and without indicating how he could be contacted, cannot turn round to complain that he was not invited before the Senior Staff Disciplinary Committee. The Defendant has done the best in the circumstances by reaching out to Claimant vide a text message through his mobile phone.

With regards to issue four, Learned Counsel referred this court to Section 36(1) of the Constitution of the Federal Republic of Nigeria as amended and submitted that a calm consideration of the facts of this case shows that the Defendant amply adhered to the principles of fair hearing in the suspension and the ultimate dismissal of the Claimant from its services.

Counsel paraphrased copiously from the witness statement on oath of DW1 particularly paragraphs 14, 15, 16,17, 20-22, 24, 25, 26, 28, 30, 36 and 37.

He then submitted that taking into cognizance the totality of the facts of this case, the Defendant has not in any way violated the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria as amended. That fair hearing is not a cut and dry principle which parties in the abstract, always apply to their comfort and convenience. It is a principle based on the fact of each case. Counsel cited the case of Magit V. University of Agriculture, Makurdi (2005) 19 NWLR (Pt.959) 211 at 243-244

Counsel further submitted that that there is an unchallenged evidence before the court that despite the fact that the Claimant unlawfully left the Defendant without leaving behind his contact address, the Defendant through DW2 its Chief Security Officer notified the Claimant through text messages to appear before the Defendant’s Senior Staff Disciplinary Committee on 12^th April 2017 which the Claimant ignored only to turn round to complain of denial of fair hearing.

He also added that the rule of fair hearing is all about being given opportunity to be heard, where a party delays or where a party has been accorded every opportunity to be heard and for no just cause refuses to take advantage of the opportunity, he will be taken as having abandoned the opportunity to be heard. Counsel cited the case of Nwokocha V. A-G Imo State (2016) 8 NWLR (Pt.1513) 141 at 190 Paras. E-F.

He concluded on this issue that the Senior Staff Disciplinary Committee in coming to its decision directing the dismissal of the Claimant took into consideration the Claimant’s responses and the reports of the Committee and Panel where the Claimant earlier appeared and defended himself and posited that, that was enough citing the case of Ansambe V. B.O.N Ltd (2005) 8 NWLR (Pt.928) 650 at 673.

With regards to issue five, learned Counsel submitted that it is trite law that where an employment has statutory flavour any action to terminate the employee’s service must comply with the statute or regulation governing the employment otherwise the termination will be liable to be set aside. However, the burden lies on the Claimant to show by fact and evidence, non-compliance with the appropriate statutes or regulations.

He maintained that this is because the onus is on who asserts to prove. He relied once again on section 135(1) of the Evidence Act 2011 Cap E.14 and the case of Womiloju V. Anibire (supra).

Counsel posited that there is no iota of evidence before this honourable court to suggest non-compliance with the Defendant’s statute or its regulation and submitted that the Claimant is not entitled to an order setting aside his dismissal by the Defendant. He also relied on argument on issue one to submit that Claimant is not entitled to order of perpetual injunction.

With regards to issue six, learned Counsel contended that with respect to the claim of N1,002,909.98 being half of salaries for the period of December, 2015 (sic) there is no evidence of how much the monthly salary of the Claimant was, when he was paid monthly salary last and how he came about the sum of N1,002,909.98 as half salaries for the period of January 2015.

On the sum of N5,000,000.00 as general damages, counsel concede that general damages is determined by the court taking into consideration the entire circumstances of a particular case and submitted that a holistic consideration of this case will show that the Claimant has not established any damage done to him by the Defendant to warrant entitlement to general damages.

He further contended with regard to the sum of N5,000,000.00 as special damages for defamation, a claim for special damages must be strictly proved. Counsel cited the case of Akinkugbe V. E.H. (Nig) Ltd (2008) 12 NWLR (Pt.1098) 375 at 404.

On the outstanding of earned academic allowance, counsel submitted that this head of claim is at large. That the Claimant did not indicate how much is this allowance? When was it earned? How did it become outstanding? On that basis, this claim is an invitation to the court to go on a wild goose chase and urged the court to decline this invitation.

In conclusion, counsel urged the court to dismiss all the reliefs claimed by the Claimant.

In reaction, Learned counsel to the Claimant filed on behalf of the Claimant a Final Written Address on the 14^th of March, 2018 and adopted same on the 21^st of March 2018. Arising from the written address, learned counsel to the Claimant, W.A. Aliwo raised two issues for determination to wit:

Whether the Query, suspension and dismissal of the Claimant by the defendant for misconduct of plagiarism was valid having regards to the circumstances of this case in relation to the Kogi State University Law and the Conditions of Service for Senior Staff of the Kogi State University and the constitution of the Federal Republic of Nigeria, 1999 as amend ed.
Whether claimant is entitled to the reliefs sought.

In arguing issue one, learned counsel submitted that admittedly, the claimant is burdened to prove the liabilities of the defendant, the burden which is usually discharged on a balance of probabilities. He cited Sec. 133 of the Evidence Act, 2011 and the case of AKUNNE BOSA MBANEFO Vs MOFUNANYA AGBU & Anor (2014) All FWLR Pt 724,40 @71-72 H-B.

Learned counsel then submitted that the burden is discharged if on an imaginary scale, this court is of the view that the balance tilts to the part of the claimant. He urged this court to hold that the claimant has discharged the burden having regards to the viva voce evidence and the documents which claimant proffered before the court vis-à-vis that of the defence.

Counsel submitted further that in an employment such as this which is guided by the Kogi State University Laws and the Conditions and Scheme of Service of The Senior Staff of the defendant (Exhibit C16), the point of focus is to determine misconduct and procedures employable in determining the culpability and punishment to be meted out to a culpable person.

Learned counsel argued that in a plethora of authorities, the Supreme Court and the Court of Appeal have held that where employment is clothed with statutory flavors, (as in the instant case) termination or dismissal for misconduct can only be done in a way and manner prescribed by the relevant statutes, (in this case, the Kogi State University Laws and the conditions and scheme of service for senior staff) and any other manner of termination or dismissal which is inconsistent with the statute renders the termination or dismissal null and void. He cited the case of ERHOVWO ONO EFERAKORHO Vs DELTA STATE JUDICIAL SERVICE COMMISSION (2015) All FWLR, PT 779, 1184 @1205 .parag E and THE COUNCIL OF FEDERAL POLYTECHNIC EDE & 2 ors Vs JOHNSON. OLOWO OKERE (2013) All FWLR (pt699), 1200 @1216 a

Upon the above, counsel contended that having regards to the substance of the allegation of plagiarism and the procedure adopted by the defendant in arriving at the culpability of the claimant, defendant was in complete breach both of her own laws, the conditions and scheme of service for senior staff and the Constitution of the Federal Republic of Nigeria.

The above position is on the basis that plagiarism, not being one of the acts which constitutes misconduct in accordance with Rule no 6.2(1-3) Of the Conditions of Service for Senior Staff Exhibit C16 cannot be a matter for investigation for misconduct. This is because what constitutes misconduct has been enumerated in paragraph 6.2(1-3) of the rules tendered in evidence before this court as EXT C16.

Counsel argued that the law is settled now that express mention of some excludes the others, (expressio Unius Est Exclusio Alterius).

Counsel also contended that to imply into the law a unit of behavior as misconduct when it was not in any way included is to make the rules governing the relationship between the defendants and her employees unpredictable. The framers of the law and the conditions of service knew that the laws and the rules were meant for an academic institution when they excluded plagiarism from misconduct probably because it is punishable in other ways than making it a departmental affair.

Counsel also argued that the defendants through her committees could not re-write the terms of service only for the liability of the claimant. Citing the cases of the case of HON. COMMISSIONER FOR LOCAL GOVERNMENT EDUCATION AUTHORITY Vs OBA ADEYINKA ONAKADE CA/I/247/2013 and EHUWA Vs ONDO STATE INDEPENDENT ELECTORAL COMMISSION & 3 OILS (2007) All FWLR (PT. 351) 1415 S.C

Learned Counsel further submitted that assuming that this court holds that although plagiarism was not itemized as misconduct, in fact, it is a wrongful act and thus misconduct by implication, where does this fall into among the three categories of the misconducts scheduled by the defendants in paragraph 6.2 of the Scheme and Conditions of Service of the Senior Staff of the defendant.

He also contended that the plagiarism was not proved before the committee as the owner of the plagiarized work and the work are very vital evidence in proof of the allegation. He cited the case of JOSEPH Vs KWARA STATE POLYTECHNIC (2014) All FWLR Pt 750, 1215@1243-1244 H.

Learned Counsel further contended that the procedure for determining the culpability of the staff of the defendant for any of the misconducts listed in the conditions and scheme of service for senior staff Exhibit C16 was not followed. Counsel referred this court to section 26 of the Kogi State University Law 1999 as amended in 2014 and contended that if read along with paragraph 6.4 1-3 of the defendant’s Conditions And Scheme of Service for Senior Staff would give lucid information on the procedure for disciplining a senior staff who is alleged of any misconduct.

He also posited that the only committee recognized by the university law and the Conditions and Scheme of Service of the Senior Staff is the Senior Staff Disciplinary Committee to investigate and recommend disciplinary actions to the Council. Counsel cited the case of Federal Airports Authority Vs Sylvester Nwoye (2014) All FWLR (pt. 719) 1110 1132 D-E.

Learned counsel contended that the Senior Staff Disciplinary Committee did not investigate but merely ratified the reports of the panels which were set up contrary to laws. Counsel also contended that DW2 served the Claimant notice to appear before the senior staff disciplinary committee vide Whatsapp in July and stated that the originals are still with him despite having the records of the Claimant. In this wise, counsel strongly contends that the Senior Staff Disciplinary Committee did not afford the Claimant opportunity for fair hearing. He cited the case of OMONIVI Vs ALABI (2015) All FWLR pt 774, 181 (i 197 1)-F. and U.B.A Vs FRN (2015) AU FWLR (pt809) 826, 840-841 (F-A).

With regards to withdrawal of service, learned counsel argued that the Claimant was not on suspension again when he turned in his letter of withdrawal of Service. He also added that failure to pay Claimant’s salary by April 2016 and the ejection from the quarter were acts of ratification of withdrawal from service.

Counsel concluded on this issue that the actions of the defendant through the said Senior Staff Disciplinary Committee in 2Ol7 were therefore like putting something on nothing and expecting it to stand and urged the court to therefore hold it as a nullity

In arguing issue two, learned counsel reproduced the reliefs sought by the Claimant and submitted that what entitles a claimant to the relief he seeks in court revolves around the establishment of his case on a preponderance of evidence.

He further contended that having established that in both substance and procedure, the defendant was in breach of her own Laws and the Conditions and Scheme of Service for Senior Staff (EXH. C16), the claimant having shown that his right to fair hearing was substantially breached, is entitled to have the procedure leading to his suspension and eventual dismissal set aside or declared a nullity.

Learned counsel also argued that a perpetual injunction follows an established right and ought to be granted if a claimant successfully establishes his right. By paragraph 32 of the statement of claim, claimant had asserted the mischievous circulation of the dismissal letter. Against this, claimant is entitled to a perpetual injunction.

With regards to earned allowance, counsel contended that the issue of earned allowance was never disputed by the defendant and urged the court to grant a declaration that claimant is entitled to it because once a fact is not disputed, it needs no further proof. See paragraph 32 (a) of the statement of claim and relief No. (x).

He concluded that once claimant proves a breach of his rights, he is entitled to damages accordingly and urged this court to grant the reliefs.

By way of reply, learned counsel to the Defendant filed a reply on the 20^th of March, 2018 and through same, counsel to the Defendant, J.O. Ajewole, highlighted six points of law from the Claimant’s written address:

On the issue of plagiarism not being one of the acts that constitutes misconduct under Rule 6.2 (1-3) of Exhibit C16, therefore it could not be a matter for investigation by the Defendant, learned Counsel argued that paragraph 6.2.3 at page 14 of Exhibit C16 (also Exhibit D 22), item Xiv and paragraph 6.4.3(i) at page 15 of Exhibit C16 (also Exhibit D22) to contend that a community reading of the two provisions shows that an act constituting a misconduct under Exhibit C16 (also Exhibit D22) is elastic and determinable largely in the opinion of the Vice-Chancellor. Once in the opinion of the Vice-Chancellor an act amount to a misconduct it will be so considered under paragraph 6.2.3 item Xiv on page 14 of Exhibit C16 (also Exhibit D22).Counsel also contended that the rule of Expressio Unius Est Exclusio Alterius and the authorities cited in that regard are good laws but not applicable in the instant case.

On the issue that Plagiarism was not proved or established against the Claimant in that the evidence of the owner of work Plagiarised was not obtained or properly obtained by the Defendant’s Committees that investigated the act of Plagiarism against the Claimant. Learned counsel submitted that a court is circumscribed by the relief sought by the parties. Yet, in all the eleven (11) heads of claims contained in the complaint of the Claimant before this honourable court, none challenged the propriety of the finding of Defendant’s Committees that the act of Plagiarism was established against the Claimant.

Counsel added that a court cannot grant a relief that is not claimed before it. Citing the case of Agbi V. Ogbeh (2006) 11 NWLR (Pt.990) 65 at 120 paragraph D

With regards to the point that the Defendant ought to have resorted to the permanent address of the Claimant when he unilaterally left the Defendant without leaving a contact address. Counsel submitted that it is trite law that a person is presumed to intend the consequence of his action. He added that the Defendant in Exhibits D12 and D22 warned the Claimant not to leave the Defendant without leaving a forwarding address behind. Counsel cited the case of Nwokocha V. A-G. Imo State (2016) 8 NWLR (Pt.1513) 141 at 190 to contend that fair hearing is all about being given opportunity to be heard. A party that ignores opportunity to be heard cannot later complain of breach of fair hearing.

With regards to the question of whether non-payment of salary and alleged ejection of the Claimant from his official quarters amount to ratification of the withdrawal of the Claimant’s service. Counsel submitted that there is no credible evidence before this court that the Defendant ever ejected the Claimant from his official residence. Counsel also contended that the Claimant has made the claim for outstanding salaries a head of claim though unproved before this Honouroble Court. Therefore, if the non-payment of salary is taken to mean ratification, why is the Claimant still claiming the salaries vide this suit?

Counsel submitted that at no time did the Defendant ratify the withdrawal of the Claimant from the Defendant as such option was not available to him again by reason of paragraph 14.2 of Exhibit D22 (also ExhibitC16) as he had served the Defendant for more than ten years.

Lastly with regards to the point that on preponderance of evidence, the Claimant has proved his claims. Counsel argued that the proposition presupposes that the parties’ evidence before the court are competing and one preponderates over the other.

Counsel submitted that the Claimant has not led sufficient evidence in support of any of the declaratory reliefs he seeks before the court and led absolutely no evidence in support of his pecuniary claims. The onus is always on the party who asserts to prove. Counsel cited again section 133 of Evidence Act, 2011.

He concluded by urging the court to dismiss the claims of the Claimant.

Having painstakingly evaluated and understood all the processes filed by learned Counsel for the parties in this suit. I have reviewed the testimonies of the witnesses called on oath, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned Counsel for either side while adopting the final written addresses.

Arising from the totality of the issues raised and addressed by the Learned Counsel in the final written addresses for both parties and the reply on point of law filed by the Defendant the issues for determination by this court are to wit:

Whether having regards to the facts of this case and the Law and rules governing the employment between the parties, the Defendant validly dismissed the Claimant from service.
Whether in view of resolution of issue one above, the claimant is entitled to the reliefs sought.

Before proceeding on the issues, I should state that learned counsel to the Claimant, Aliwo, raised an objection to the admissibility of exhibits D9, D13, D14, D18 and D19 which resulted in the documents to be admitted under protest and to be addressed in the final written address. Learned counsel did not state the grounds upon which the objection was raised and did not address same in the final written address. Consequently, the said documents are properly admitted for the purpose of this judgment as the counsel is deemed to have abandoned his objection.

With regards to issue one, let me start by reckoning that it is not in dispute that the employment in question is one with statutory flavor. The Supreme Court in the case of C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 noted the types of employment when it held that:

“The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer: and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599.” Per Akintan, J.S.C. (P. 20, paras. B-D).

Upon that, the court described what it means for an employment to be one with statutory flavor when it held that:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A).

In this instant case, the Claimant tendered the Kogi State University, Anyigba, Condition and Scheme of Service for Senior Staff as Exhibit C16 while the Defendant tendered same document as Exhibit D22. In addition to this, counsel to the Claimant, Aliwo in filing his Final Written Address appended a copy of pages from what is presumed to be the Kogi State University Law, 1999 as amended in 2014 (cited in para. 3.20 of the Written Address). The Defence Counsel, Ajewole, said nothing of this Law either in his reply on point of law or in his earlier Final Written Address for the Defendant. I am not unaware of the settled law that a written address cannot take the place of credible evidence, however, I must reiterate that this is a reference to a law and the court owes a duty to consider every ounce of law referred to as long as same is of significance and would assist in a just decision. See the case of BOSMA & ORS. v. AKINOLE & ORS. (2013) LPELR-20285(CA). a Counsel’s Address is only a forum where the law is brought in for the court’s consideration. See ELUMEZIEM & ORS v. AMADI (2014) LPELR-22459(CA).

There is no gainsaying that a state University is to be created by law and such is what makes it a statutory body giving the employment made by it a statutory employment. Though it operates in conjunction with the condition of service, the statute takes precedence in time of conflict. In the absence of any contradiction of the position of this law by the Defendant, it shall be taken along with the tendered Exhibit C16 (Condition and Scheme of Service for Senior Staff) as the regulations governing the employment of the parties to this suit.

Having said that, how then are the parties to relate with the condition of service? The court in the case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR-11855(CA) addressed this when it held that:

“…They are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. See the case of: N R. C V. Umero Supra at pgs, 277 – 278. The only way there can be a waiver is by subscribing again to another written contract with new set of conditions and terms. See the case of: Prof S. O Abdulraheem & 3 Ors. V. Prof B. J Olufeogba & 43 Ors. (2006) 17 NWLR (Pt. 1008) p. 280 at p. 325” Per OMOLEYE, J.C.A (P. 45, paras. B-E).

That being the case, the withdrawal of service by the Claimant and the dismissal of the Claimant by the Defendant shall be considered within the ambit of the Defendant’s Condition and Scheme of Service for Senior Staff (Exhibit C16) and the Kogi State University Law.

Also, let me also say that parties are in accord as to the fact that the Claimant was employed by the Defendant on 3^rd of March, 2000 as Assistant Lecturer (Exhibits C2 and D2), later promoted to senior lecturer (Exhibits C4(1) and D5) while his latest appointment was as a Deputy Dean, Faculty of Management Science (Exhibits C4(3) and D6). It is also in accord that the Claimant travelled abroad for studies for 3 years. Although it was only the Defendant that tendered the document evidencing the bond for the study leave (Exhibit D3) there is no conflict as to the fact that the Claimant resumed duties upon completion of his studies on the 22^nd October, 2012 (Exhibit C3).

The law is settled that facts admitted need no further prove as held in CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC) that:

“The established principle of law is well founded and settled that facts admitted need no proof. See the case of Narinder Trust Ltd. v. N.I.C.M.B. Ltd. (2001) FWLR 1546 at 1558 and Nwankwo v. Nkwankwo (1995) 5 NWLR (pt 894) 158.

To the main crux of the matter, it is the contention of the Claimant that his purported dismissal is preposterous, unlawful, unconstitutional, null and void and of no effect. The Defendant contends that the dismissal is valid.

The court has in a plethora of cases including the case of NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910 (CA) where the court held with regards to termination of employment with statutory flavor that:

“In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…”

The question that naturally follows is whether in the instant case, the dismissal of the Claimant is null and void. To discover this, the law is that the burden is on the Claimant to establish same as the court had stated in the case of AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) that:

“For emphasis, the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated, he has the onus of placing before the Court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer”.

In clearer terms, a Claimant who alleges unlawful dismissal from employment must plead and prove the following facts to succeed in his claim:

That he or she is an employee of the Defendant,
Place before the court the terms of his or her employment and the terms and conditions of the employment,

iii. State who can appoint and who can remove him,

In what circumstances his or her employment can be determined, and
In what manner the said terms of the employment were breached by the Defendant.

See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt.572) 1791 at 1809.

In attempt to discharge the burden, the Claimant, stated on oath that there was an allegation that the Claimant plagiarized a certain work and for that he was issued Exhibit C9 (an internal memo dated the 16^th of June, 2015) where he was given 48 hours to reply. He replied with Exhibit C10 (an Internal Memo addressed to the HOD dated the 16^th of June, 2015). By 30^th June, 2015 when the report of the Departmental Investigative Panel was forwarded to the Management of the Defendant, the Registrar of the Defendant wrote Exhibit C12 (i) (a letter dated 30^th June, 2015 titled Request For Explanation) wherein the Claimant was asked to show cause why disciplinary action should not be taken against him within 24 hours. The Claimant responded with Exhibit D11 (Re:Request for Explanation dated 1^st July, 2015).

The Claimant stated that on 6^th July, 2015 he received Exhibit C13 (a letter titled Suspension from duty dated 6^th July 2015) and following that, he received Exhibit C14 (1) (an invitation to appear before panel to investigate the allegation of plagiarism dated 13^th July, 2015 and Exhibit C14 (2) another invitation to appear before a panel to investigate the allegation of plagiarism dated the 29^th July, 2015.

The Claimant maintained that he was not informed of the outcome of the panels and the Defendant did not communicate to him any further. Hence, on the 7^th of January, 2016, he forwarded Exhibit C15 (letter of Withdrawal of Service dated 7^th January, 2016) to the Defendant. The Defendant responded with Exhibit C17 (Re-withdrawal of service) wherein the Claimant’s withdrawal was not approved. The Claimant in reaction wrote another Exhibit C18 (Re-withdrawal of Service dated 8^th February, 2016) challenging the refusal to approve his withdrawal.

Eventually, the Claimant got a message through whatsapp application informing him of certain letters that were for him. He reckoned that one of the documents is his dismissal from service dated 4^th July, 2017.

The Claimant then contended that his dismissal which is predicated on the findings of the investigation panel before which he appeared was not a procedure provided in Exhibit C16 as the said Exhibit C16 does not have provision for Plagiarism as a misconduct. Also, the Senior Staff Disciplinary Committee ought to be the body to investigate and recommend disciplinary actions to the Council. Counsel referred this court to section 26 of the Kogi State University Law 1999 as amended in 2014 and posited that the procedure adopted runs riot of the said law and the scheme of service.

With regards to withdrawal of service, the Claimant contended that he validly withdrew his service having completed the 6 months period of suspension without an extension.

The Defendant on their part contended that the provision on misconduct is elastic and determinable largely in the opinion of the Vice-Chancellor. Also, that the withdrawal of the Claimant is contrary to the condition and scheme of service and the study bond entered into by the Claimant with the Defendant.

For the sake of Clarity, it is pertinent to reproduce the relevant provisions in relation to withdrawal of service and dismissal from service as in Exhibit C16 (Scheme and Condition of Service).

Paragraph 14.1 (i – iv) of Exhibit C16:

A staff may resign his tenure and full time appointment in writing through the Head of Department to the Registrar, giving at least three (3) months’ notice or payment in lieu and the Registrar’s acceptance in writing to the staff.

A staff may resign his temporary appointment in writing through the Head of Department to the Registrar, giving at least one (1) month’s notice or pay in lieu and the Registrar’s acceptance in writing to the staff.

iii. A member of staff who resigns his/her appointment after having served for less than four years shall not be entitled of gratuity (sic).

Unless otherwise agreed, such notice shall, for teaching staff, expire at the end of a session.

Paragraph 14.2

A member of staff may withdraw his service after serving for not less than 5 years and not up to 10 years on giving appropriate notice applicable in 14.1 (i – iv) above

Based on the above, the Defendant contended that the Claimant did not validly withdraw his service because the Claimant having being in the employment of the Defendant since 2000 is more than 10 years in service. Also, going by Exhibit D3 (the study leave/Fellowship bond) executed between the Defendant and Claimant, the Claimant ought to serve the Defendant University for 5 years upon return from study and lastly, the withdrawal requires three months’ notice or salary in lieu of same.

In this regard, I have considered exhibit C2 which is the letter of appointment dated 3^rd March, 2000 and compared same with Exhibit C17 which is the letter of withdrawal dated the 7^th of January, 2016 and found that the Claimant has been an employee of the Defendant for 15 years and 10 months as at the time he tendered Exhibit C17. Placing the Claimant outside the categories of staff in paragraph 14.2 of the scheme of service who may withdraw his service. Also, I have considered Exhibit C3, which is the notification of resumption of duty dated the 22^nd of October 2012 which the Claimant used to inform the Defendant that he has completed his studies and resumed duty. This, I viewed in relation to Exhibit D3 (the study bond) of which paragraph (e) 1 provides that:

(e) Agree to the following conditions governing the approval of study leave/fellowship:

To return at the expiration of the duration of the course of study and to serve the university for a period of two (2) years, for every year of study leave/fellowship subject to a maximum of five years and for a period of one year if the period of leave of fellowship is less than one year.

It is the finding of this court in this regard that the withdrawal of service by the Claimant was before the completion of 5 years in service upon return from study leave considering the fact that 22^nd October, 2012 to 7^th January, 2016 is 3 years and two months and clearly in breach of the said study bond.

Furthermore, Exhibit C17 (withdrawal of service) placed before this court rightly makes no provision for three months’ notice nor payment of salary in lieu of notice. The Claimant simply stated that “please use the records at your disposal to calculate my service benefits and outstanding indebtedness to Kogi state University, Anyigba”.

Where evidence is placed before the court and same is challenged, the burden is thrown back to the party who alleges. Considering the assertion by the Claimant that he validly withdrew his services and the denial by the Defendant, the burden is on the Claimant to prove same as section 131 of the Evidence Act, 2011 provides that:

(1) 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.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316)182 that:

“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.

This court is of the convincing view that the withdrawal of service by the Claimant was not valid considering the clear provisions of exhibit C16 (Condition of service) on the one hand and Exhibit C17 (letter of non-approval of withdrawal) and Exhibit D3 (study leave/fellowship bond) on the other hand.

With regards to dismissal, Exhibit C16 provides for misconducts under three headings and a general provision for disciplinary measures.

paragraph 6.1 provides for the definition of misconduct thus:

Misconduct means any act prejudicial to good discipline and proper administration of the University,

Paragraph 6.2 of Exhibit C16 provides that in accordance with the above definition, misconduct is broadly categorized into three groups”

6.2.1. Minor Misconduct:

lateness to work or leaving before closing time.
Loitering

iii. Insolence

Hawking or trading while at work
Quarreling
Any other act of minor misconduct as may be defined from time to time

6.2.2. Major Misconduct

Absence from duty without permission or reasonable excuse
Insubordination

iii. Fighting in the office

Negligence of duty
Drunkenness
Deliberate loss or willful damage to university property

vii. Any other major misconduct that may be defined from time to time by the university.

6.2.3. Gross Misconduct:

Gross insubordination
Falsification of account of records

iii. Conviction for criminal offence

Stealing, corruption, dishonesty or fraud
Aiding and abetting exam malpractice
Abscondment from duty

vii. Forgery and/or embezzlement

viii. Sabotage against the university

Disclosure of official secret
Engagement in full/part-time studies without permission
Acts as an attorney or agent against the University

xii. Refusal to answer query

xiii. Sexual harassment

xiv. Any other act of gross misconduct that may be defined from time to time by the university.

While paragraph 6.3. provides for disciplinary measures as it states that:

Any staff who engages himself/herself in any act of misconduct stated in (6.2.1-3) above shall be disciplined in any or a combination of the following:

a). Query

b). written warning (after Three queries)

c). withholding of increment

d). suspension

e). Demotion

f). Deferment of Promotion

g). Termination

h). Dismissal

i). Making good the loss or damage to university property.

The Claimant’s Counsel Aliwo contended that plagiarism is not expressly mentioned in paragraph 6.2.1-3 and therefore, express mention of one excludes others. He added that the claimant was ab initio put on trial administratively for what was never an offence/misconduct in the first place. The Defendant’s Counsel, Ajewole by way of reply argued that the legal maxim does not apply and that in paragraph 6.2.3 at page 14 of Exhibit C16 (also Exhibit D 22), item Xiv on gross misconduct provide thus:

Xiv. Any other acts of gross misconduct that may be defined from time to time by the University.

He added that in paragraph 6.4.3(i) at page 15 of Exhibit C16 (also Exhibit D22) it is provided thus:

If in the opinion of the Vice Chancellor, an act of misconduct has been committed, which is of serious nature to warrant a drastic punishment, the staff shall be suspended from duty by the Vice- Chancellor on half pay for a period not more than six months.

There is no gainsaying that the dismissal of the Claimant is predicated on the allegation and investigation of plagiarism. This is consolidated by Exhibit D20 (letter of Dismissal from service). It is ideal to reproduce the content of the dismissal letter and same is reproduced thus:

KOGI STATE UNIVERSITY, ANYIGBA

P.M.B. 1008, ANYIGBA, KOGI STATE, NIGERIA

E-mail: ksuanyiqbayahoo.con.

Office of the Registrar

REF. NO. KSU/R/EST/EMP/SS/76/VOL.II Date: 4th July, 2017

Dr. Ali S. Y. Bagaji

Department of Public Administration

Kogi State University

Anyigba.

Dear Dr. Bagaji,

DISMISSAL FROM SERVICE

Please recall that you were alleged to have plagiarized the publication of Dr. klejda Moulaj, your Ph.D Supervisor, in the Departmental Journal Vol. 3 No.1 of June, 2013.

You may also recall that the Departmental, Faculty and the University Management Committees investigated the allegation and found you culpable.

Consequent upon the reports of the Committees, you were suspended from duty with effect from 6^th July, 2015. While on suspension, you absconded from duty and took appointment with another University.

Consequent upon the above, you were invited to appear before the Senior Staff Disciplinary Committee on 12th April, 2017, but you failed to honour the invitation.

The Senior Staff Disciplinary Committee carefully reviewed your responses to the queries and the reports by the Departmental, Faculty and University Management Committees and found you culpable.

Consequently, in accordance with section 6 Subsection 6.4.3 (viii), of the Conditions and Schemes of service for senior staff, the Governing Council at its 46^th Regular Meeting held on 11 May, 2017, directed that you should be dismissed from the services of Kogi State University, Anyigba.

Consequently, you are hereby dismissed from the services of Kogi State University, Anyigba, with effect from 11^th May, 2017.

You are requested to handover all University property in your possession to your Head of Department and your Identity Card to the Chief Security Co-ordinator before your departure.

Yours sincerely,

Dr. Y.I. Abubakar

Registrar.

Considering the above, it is apparent that plagiarism is not expressly mentioned in the categories of misconduct and the omnibous provision ending each categorization of misconduct says “Any other acts of minor/major/gross misconduct that may be defined from time to time by the University”.

Although there is evidence that the allegation of plagiarism was investigated and the Claimant appeared before investigative panels, there is no evidence led by the Defendant that plagiarism has at any point in time been defined in a later edition of the condition and scheme of service.

It is also the finding of this court that the paragraph 6.4.3(i) at page 15 of Exhibit C16 referred to by the Defendant’s counsel is a general provision on the procedure for effecting suspension as a disciplinary measure.

I have earlier stated that the condition of service is binding on the parties to an employment. See DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (supra) furthermore, the court cannot re-write the condition and scheme of service on behalf of the parties.

The Supreme Court clearly stated in the case of CORPORATE AFFAIRS COMMISSION v UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR-40571(CA) that:

“It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more. In AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 SC; (2008) LPELR – 446 (SC), MOHAMMED, JSC stated:

“It is certainly not the duty of a Judge to interpret a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct, engaged himself in morality which may be against the tenor of the statute and therefore not within his Judicial power.” Similarly, GALADIMA, JSC reiterated in AROMOLARAN v. AGORO (2014) LPELR – 24037 (SC) p. 25, paras. B – F, thus:

“I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474, WALI JSC said at page 512: “In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 41-42, Paras. C-E)

The courts also do not re-write the terms of a contract of employment but merely give effect to the words as contained therein as long as they are unambiguous. This was noted by the court in Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 504 at 521 – 522, paras. G – E (CA) that:

“In construing the relationship between an employee and an employer under a contract, the court must confine itself to the plain words and meanings to be derived from the written contract. And interpreting the provisions of such a written contract, no addition thereto or subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties. Accordingly, the court does not have the power to look elsewhere for the terms of contract with regard to the termination of a contract other than in the written contract of the relationship between the appellant and the respondent, the court was right to have confined itself to the plain words and meaning derived from the provisions contained in the respondent’s staff manual. See Afrotec Tech Services (Nig.) Ltd. v. M.I.A. & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730; CBN v. Archibong (2001) 10 NWLR (Pt. 721) 492.”

In view of the above authority, I must add that had plagiarism been one of the misconducts expressly mentioned, the next question would be the procedure adopted in disciplining the Claimant. That is whether same is in accordance with the Kogi State University Law.

The Counsel to the Claimant had referred this court to section 26 of the Kogi State University Law 1999 as amended in 2014 and argued that the procedure for the dismissal of the Claimant runs riot of the said provision. He also contended that, the said section, if read along with paragraph 6.4 1-3 of the defendant’s Conditions And Scheme of Service for Senior Staff would give lucid information on the procedure for disciplining a senior staff who is alleged of any misconduct. He also posited that the only committee recognized by the university law and the Conditions and Scheme of Service of the Senior Staff is the Senior Staff Disciplinary Committee to investigate and recommend disciplinary actions to the Council.

While the Counsel to the Defendant in his reply, said nothing of section 26 of the Kogi State University Law, but argued that the Claimant unilaterally left the Defendant without a contact address contrary to the instruction given when he was suspended and that the Defendant did all that was reasonable to invite the Claimant to appear before the Senior Staff Disciplinary Committee.

At this juncture, it is pertinent to consider the procedure laid down in section 26 of the Kogi State University Law 1999 as amended in 2014 for the removal and discipline of academic or non-teaching staff of the Defendant. The said section provides thus:

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

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

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

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

(i) for a joint committee of the Council and the Senate/Congregation (as the case may be) to investigate the matter and to report on it to the Council; or

(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

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

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

(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

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

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

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

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

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

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

(c) whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or

(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine,

and in any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.

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

(6) Nothing in the foregoing provisions of this section shall prevent the Council from making regulations for the discipline of other categories of staff and workers of the University as may be prescribed.

In line with the above, I have earlier stated that it is settled law that where the terms and conditions of a contract of employment are specifically provided for by statute or regulation, it is said to be an employment with statutory flavor. See OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; BAMGBOYE vs. UNIVERSITY OF ILORIN (2001) FWLR (Pt. 32) 12; OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42. Therefore, in view of the provisions of the above cited Law, it is without doubt that the Claimant’s employment is protected by statute and the Claimant cannot be validly removed from the employment of the Defendant unless the provisions provided in the statute for removing him is followed strictly. See ADENIYI vs. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (Pt. 300) 426; OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 42. It is however of note that it is incumbent on the Claimant to prove that the Defendant did not comply with the procedure stipulated by law for his removal.

For want of clarity, I adopt the exposition made by the court in Professor Peter O. M. Nnabuo v University of Port-Harcourt & 3 Ors. unreported (suit: NICN/OW/27/2014) delivered on 9^th January 2016, wherein the court considered section 16 of the University of Part-Harcourt Act which is in pari-material with the current section 26 of the Kogi State University Law. Hence, the effect of section 26 of the Law cited above is that:

The power to remove academic or administrative or non-teaching staff of the Defendant from service is exercisable only by the Council of the Defendant
It must have appeared to the Council that there are reasons for the removal of the staff on grounds of misconduct or of inability to perform the functions of his office or employment

iii. The Council must give notice of those reasons or allegations to the person in question,

The Council must afford the staff an opportunity of making representations in person on the matter to the Council,
The Council shall, if the Claimant or any three members of the Council so requested within the period of one month from the date of notice of allegation to the staff, constitute a joint committee of the Council and the Senate to investigate the matter and report to the Council or afford the Claimant an opportunity of appearing before the investigating committee and being heard with respect to the matter.
The Council, after considering the report of the investigating committee, is satisfied that the staff in question should be removed.

vii. The Council then removes the staff by an instrument in writing signed on the directions of the Council.

In the instant case, the procedure for dismissal adopted by the Defendant started on the 16^th June, 2015, when the claimant received a memo from his Head of Department Dr. J.O Achegbulu tagged ‘case of plagiarism’ written by Dr. Daniel Mathew Okwoli mandating the claimant to respond within 48 hours (Exhibit C9 or D7). He responded to the said allegation via Exhibit C10 or D8 on the same day. A Departmental panel was then set up by the HOD Dr. J.O Achegbulu. The panel forwarded it ‘s report (Exhibit D9) to the University Management.

Upon the receipt of the panel report, the Registrar, Dr.Y.I Abubakar, requested the Claimant for explanation via a letter dated 30^th June, 2015 (Exhibit C12 (1) or D10) to which the Claimant complied within 24 hours via Exhibit C12 (2) or D11. Following this, the claimant received a letter of suspension from the Registrar (Exhibit C13 or D12).

On 13^th July,2015 and 29^th July, 2015, the Claimant was invited to appear before the panel set up to investigate the alleged case of plagiarism on two separate occasions via Exhibit C14 (1) or D13 and C24 (2) signed by the Secretary to the Chairman of the Panel. The Claimant appeared but the outcome of the said panel was not known to the claimant.

The Defendant tendered the Panel Report dated 9^th September, 2015 as Exhibit D14. Subsequently, the Defendant invited the Claimant via Exhibit D19 to appear before the Senior Staff Disciplinary Committee via a letter dated the 10^th of April, 2017. The Claimant alleged he never got served with the invitation that he only received a message via whatsapp about some letters meant for him and the invitation being one of them. I should mention here that the dismissal letter, Exhibit D20 was also part of the letters.

Upon the Claimant not appearing before the Senior Staff Disciplinary Committee, his earlier responses to queries (internal memos) and report of the Departmental, Faculty and University Management Committees were reviewed and found him culpable and the Council directed that the Claimant be dismissed with effect from 11^th May, 2017.

Having considered the above facts and evidence before this court, it is clear that the Claimant and Defendant are in accord that the above are the processes leading to the Dismissal of the Claimant which the Claimant contends is not in accordance with section 26 of the Kogi State University Law. I have taken a careful look at same and it is the finding of this court that:

The Council was not responsible for initiating the disciplinary proceedings by giving notice to the Claimant of the reason for his proposed dismissal.
There is no evidence before the court wherein the Council afforded the Claimant an opportunity of making representation in person in respect of the matter of plagiarism.

iii. The investigations conducted by the Defendant through Department, Faculty and Management Committees were not in accordance with the Law same having not been conducted by the Joint Committee of the Council and no report was presented to the Council in respect of same.

The Claimant was not at any time invited to appear before the Joint Committee of the Council which is the appropriate Investigating Committee.
The power of the council to discipline an academic or non-teaching staff is not delegable and has in fact not been delegated to any other body either to initiate or complete the process. the only part exercisable by another person is the signing of the instrument removing the staff which still has to be on the direction of the Council.

Having failed to comply with the prescribed steps to be taken by a prescribed body as stipulated in the Law of the Defendant, whatever perceived act of compliance with the rules of fair hearing by the Defendant will fail, same having been built on nothing. See UAC v Mc Foy (1961) 3WLR 1405 at 1409. The procedure for the removal or dismissal of the Claimant ought to have been strictly followed as the court maintained in the case of OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 46 to 47, where the Supreme Court held that:

“When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoy a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void … Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void.”

Also, in Iderima v. R.S.C.S.C. (2005) 16 NWLR (Pt.951)378, the court held that:

”It is well settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required, before such disciplinary action can be properly based or justified.” Per KALGO, J.S.C (P.24, paras.B-C)

Consequent upon the above, it is the finding of this court that the dismissal of the Claimant is unlawful, null and void same having been predicated on the allegation of plagiarism, an act not expressly captured as a misconduct under the Condition and scheme of service and the process of dismissal failing to comply with the provision of the Kogi State University Law.

I am also inclined to add that the allegation in Exhibit D20 that the Claimant absconded from duty while on suspension and took appointment with another University is unsubstantiated by evidence before this court and same cannot be a ground for the dismissal. The evidence before this court is that by Exhibit C15, the Claimant resumed duty on 7^th of January 2016 having completed six months period of suspension which was not extended even though he also tendered his withdrawal from service on the same day. The burden is therefore on the Defendant to prove the abscondment and appointment with another university. The law is settled that he who asserts must prove. See Ojoh v. Kamalu (2005) 18NWLR (Pt. 958) Pg. 523 at 565 Paras.F – G.

Issue one is therefore resolved in favour of the Claimant to the effect that having regards to the facts of this case and the rules governing the employment between the parties, the Defendant did not validly dismissed the Claimant from service.

With regards to issue two, which is “whether the in view of the resolution of issue one, the Claimant is entitled to the reliefs sought”, it is important to reckon that 7 of the reliefs sought by the Claimant as captured above are declaratory.

The court in Bagudu v. F.R.N. [2004] 1NWLR (Pt.853)182 while describing the nature of declaratory reliefs held that:

“Declaratory reliefs are not only a form of equitable relief, they are statutory/rights as well as constitutional rights. Its judgment (declaratory judgment) broadly speaking, is just a pronouncement of the legal state of affairs. Although it is complete standing alone, it is by itself not enforceable in law see (1) Govt. of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 593. (2) Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409 and (3) Akunnia v. A.-G., Anambra State (1977) 5 SC 161. Perhaps I should add that declaratory judgment can even be granted without any consequential relief adjoining it see Ekwuno v. Ifejika (1960) SCNLR 320; (1960) 5 FSC 156.” Per ADEREMI, J.C.A. ( Pp. 26-27, paras. E-A

In IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA)the court with regards to the entitlement to declaratory reliefs held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A

In the light of the above, this Court would in the light of the resolution of issue one with regards to the purported dismissal of the Claimant and the position of the court on the withdrawal of service by the Claimant, determine which of the reliefs sought can be granted to the Claimant.

Having resolved that the dismissal of the Claimant by the Defendant is unlawful, unconstitutional, null and void, the declaratory reliefs (i), (iii) and (vi) are granted to the effect that this court makes:

(i). A declaration that the purported dismissal of the Claimant by the Defendant is preposterous, unlawful, unconstitutional null and void and of no effect.

(iii). A declaration that the suspension of the Claimant is illegal same having been done outside the ambit of the Provisions of the Conditions and Schemes of Service of Kogi State University 2008 and the University Law as amended which are the laws that regulate the activities of the Defendant.

(vi)A declaration that the act of the Defendant’s administrative panels amount to breach of the Claimant’s constitutional right of fair hearing.

Relief (ii) which is “A declaration that the Claimant’s withdrawal from the employment of the defendant was valid having regards to the circumstances and Kogi State University Laws and the Conditions and Scheme of Service of the Kogi State University Anyigba” is hereby refused based on the fact that the Claimant having been in the employment of the Defendant since 2000 outside the categories of staff provided for in paragraph 14.2 of the scheme and condition of service (Exhibit C16) who may withdraw his service.

Relief (iv) is granted to the extent that the court makes “A declaration that the steps taken by the Defendant and/or her agents in setting up a committee to investigate the allegation against the Claimant were unlawful, null and void ”. This is in view of the resolutions of issue one with regards to the dismissal.

Furthermore, in view of the resolution of issue two with regards to the purported dismissal of the Claimant, the Claimant is entitled to relief (viii) which reads:

(viii). An order setting aside the dismissal of the Claimant from the employment of the Defendant/or directing the Defendant to withdraw the said letter of dismissal dated 4^th July, 2017.

Consequently, relief (viii) is hereby granted as prayed.

With regards to Relief (v) which reads, “An order of perpetual injunction restraining the Defendant by herself or through her agents from giving effect to the purported dismissal of the Claimant”, it goes without saying that the relief cannot be granted as the purported dismissal having been declared null and void, the Claimant failed to show the existence of any other legal right worth protecting by an order of perpetual injunction.

With regards to reliefs (vii), (ix), (x) and (xi) which are pecuniary reliefs and fall either under the category of special or general damages.

The court in MEDITERRANEAN SHIPPING CO. S.A. & ANOR V. ENEMAKU & ANOR (2012) LPELR-9253(CA) made the distinction between general and special damages thus:

“the law is that general damages relate to all the items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damages relate to all items of loss which must be specified by the Plaintiff before they may be proved and recovery granted. See PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDINGS NIGERIA LTD. (2008) 4 SCNJ 404; IYERE V. BENDEL FEED & FLOUR MILLS LTD (2008) 12 SCNJ 412.”PER OGUNWUMIJU, J.C.A (P.31, Paras. C-F)

In that regard Relief (vii) and (xi) are specific damages notwithstanding their being couched as a declaratory reliefs. They are:

(vii) “A declaration that the Claimant is entitled to the sum of N1,002,909.98 being half of his salaries for the period of December 2015 which he was wrongfully denied by the Defendant”.

And

(xi) “A declaration that the Claimant should be paid the outstanding balance of his earned academic allowance”.

While it is observed that Claimant has not placed before this court any evidence to show what his full salary for December 2015 was and whether the said sum is a monthly salary or annual salary, it must be categorically stated that upon the Dismissal of the Claimant having been declared unlawful, null and void, it is as if the Claimant never left the employment. More so, this Court has the power to Order reinstatement even where same is not sought considering the employment been statutory.

In the circumstance of this case where it is found that the contract of employment is guided by statute, the Claimant is entitled to a consequential relief of reinstatement and payment of his outstanding salary from the time his employment was unlawfully terminated. See KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199; OLANIYAN vs. UNIVERSITY OF LAGOS (supra); OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807.

In view of the above authorities, Claimant is granted reliefs (vii) and (xi) to the extent that “The Claimant is hereby reinstated to his employment in the Defendant and all outstanding salaries and allowances accruing to him from the date of the unlawful dismissal be paid to the Claimant by the Defendant”.

Relief (x) which is “the sum of N5,000,000.00 (five million naira) only be paid to the Claimant by the Defendant as special damages for defamation of character and malicious circulation of the purported letter of dismissal” is by itself tagged a special damages. It is refused on the failure of the Claimant to specifically prove defamation of Character and malicious circulation of the purported letter of dismissal.

Relief (ix) which is “The sum of N5,000,000.00 (five million naira) only be paid to the Claimant by the Defendant as general damages” needs no specific details. The court in Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445 while defining general damages said:

“it is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The principle of ubi jus ibi remedium will apply here – there is no wrong without a remedy.” Per Onu JCA.

Considering the fact that upon the resolution of issue one wherein this court found for the Claimant that his dismissal is unlawful, the Claimant is considered to have suffered a wrong and deserves a remedy. In that light a general damages of N1,000,000.00 is awarded in favour of the Claimant and against the Defendant to be paid within 60 days from today.

Judgment is entered accordingly.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.