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National Industrial Court

Dr. Hycenth A. Ajie -VS- University of Port Harcourt & 3 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 9TH DECEMBER, 2019                  SUIT NO: NICN/YEN/63/2015

BETWEEN:

  1. HYCENTH A. AJIE———————————         CLAIMANT

AND

  1. THE UNIVERSITY OF PORT HARCOURT
  2.  THE VICE CHANCELLOR, UNIVERSITY

OF PORT HARCOURT                                                           DEFENDANTS

  1. THE REGISTRAR, UNIVERSITY OF PORT HARCOURT
  2. THE COUNCIL, UNIVERSITY OF PORT HARCOURT

JUDGMENT

 

By a Complaint and Statement of Facts dated and filed on 3rd August, 2015, the Claimant commenced this suit against the Defendants seeking the following reliefs:

  1. A declaration that the dismissal of the claimant from the services of the 1st defendant through a correspondence dated May 14, 2015 with reference number UPH/R998/2259 is wrongful, unlawful and null and void.
  2. A declaration that the decision of the Senior Staff Disciplinary Committee which recommended the dismissal of the claimant on 29th April, 2015 was predicated on malice and improper motive.
  3. A declaration that the employment of the claimant with the defendant is still subsisting notwithstanding the said purported dismissal of the claimant through the letter of dismissal dated May 14, 2015.
  4. An Order compelling the defendants to reinstate the claimant to his position without any loss of seniority, privileges or entitlements due to him as his colleagues in the Faculty of Social Sciences and the University as a whole.

 

IN THE ALTERNATIVE

 

  1. The sum of N3,000,000.00 (Three Million Naira) as special damages.
  2. The sum of N300,000,000.00 (Three Hundred Million Naira) as general damages for wrongful and unlawful dismissal of the Claimant.

Upon service of the Originating Processes on the Defendants, the Defendants filed Memorandum of Appearance, Statement of Defence and other accompanying processes all dated and filed on 1st of June, 2016, but deemed as having been properly filed and served on 29th of November, 2017.

The Claimant filed a Reply to the  Statement of Defence on 8th of July, 2016, and a further deposition on 16th day of May, 2018 which was deemed on 31st May, 2018.

When the matter came up on 30th January, 2018, Chief Ikechi Wagbara appeared with O. W. Wagbara (Miss) for the Claimant while A. K. Aluzu held the brief of Kuro Tanbou for the Defendants. The Claimant commenced his testimony as CW and adopted his witness statement on oath made on the 3rd day of August, 2015.

On the 4th of June, 2018, Chief Ikechi Wagbara appeared for the Claimant while F. S. Uche (Mrs.) appeared for the Defendants. The Claimant (CW) continued with his testimony by adopting his further deposition made on the 16th of May, 2018, and tendered the following documents which were admitted by the court:

  1. Memorandum of terms of pensionable appointment for academic staff dated 13th February, 1998———– exhibit CW1.
  2. Letter of pensionable appointment dated 11th February, 1998 —- exhibit CW2.
  3. Letter of confirmation of appointment dated 30th October, 2002 — exhibit CW3.
  4. Letter of promotion dated 16th May, 2002 — exhibit CW4.
  5. Letter of promotion dated 14th March, 2006 —- exhibit CW5.
  6. Letter of promotion dated 20th December, 2006 — exhibit CW6.
  7. Letter of Assessment interview for professorial dated 15th July, 2014 —- exhibit CW7.
  8. Memorandum dated 13th March, 2015 —– exhibit CW8.
  9. Letter dated 17th March, 2015 written by Prof. Gilbert I. Adoghor —– exhibit CW9.
  10. Letter dated 18th March, 2015 written by the Claimant —- exhibit CW10.
  11. Memorandum dated 20th April, 2015 —— exhibit CW11.
  12. Letter dated 20th April, 2015 written by the claimant —- exhibit CW12.
  13. Invitation letter dated 22nd April, 2015 —— exhibit CW13.
  14. Letter dated 23rd April, 2015 written by the claimant — exhibit CW14.
  15. Minutes of 132nd Meeting of the Appointments and Promotions Committee (Academic) held on 5th August, 2014 —- exhibit CW15.
  16. 19th Report of the Senior Staff Disciplinary Committee (SSDC) to Council dated 29th April, 2015 —- exhibit CW16.
  17. Letter of dismissal from service dated 14th May, 2015 — exhibit CW17.
  18. Minutes of 131st Meeting of the Appointments and Promotions Committee held on 16th June, 2014 —— exhibit CW18.
  19. Solicitor’s letter (pre-action notice) dated 23rd June, 2015–exhibit CW19.
  20. Query dated 7th May, 2015 —- exhibit CW20.
  21. Answer to Query dated 13th May, 2015 — exhibit CW21.
  22. Letter of appeal dated 11th May, 2015 —— exhibit CW22.
  23. Memorandum (7th Report of Appeals Committee) dated 28th April, 2015 together with letter dated 7th October, 2015 ——– exhibit CW23.
  24. Letter dated 8th June, 2015 written by the claimant — exhibit CW24.
  25. Memorandum dated 6th August, 2014 —- exhibit CW25.

The witness (CW) was then cross-examined by the defendants’ counsel without being re-examined by his counsel. The Claimant then closed his case on 15th October, 2018 after which the case was adjourned for defence.

When the matter came up on 8th November, 2018, Chief Ikechi Wagbara appeared for the Claimant while F. S. Uche (Mrs) appeared for the Defendants. The Defendants then called their sole witness one Promise Simeon, the Personnel Officer, Academic in the 1st Defendant who testified as DW. The witness adopted his witness statement on oath made on 1st June, 2016 and tendered the following documents which were admitted by the court:

  1. Memo dated 10th April, 2014 —- exhibit DW1.
  2. Memorandum dated 9th March, 2015 —- exhibit DW2.
  3. Memo dated 20th April, 2015 — exhibit DW3.
  4. Letter dated 20th April, 2015 written by the claimant —– exhibit DW4.
  5. Letter dated 28th April, 2015 written by Prof. Gilbert Adohor — exhibit DW5.
  6. Minutes of 43rd Meeting of SSDC held on 27th April, 2015 – exhibit DW6
  7. Nigerian Journal of Monetary Economics Vol.4 numbers 4 and 5, January – June 2002 —- exhibit DW7.
  8. Nigerian Journal of Monetary Economics Vol. 6, numbers 6 and 7, April 2006 —- exhibit DW8.
  9. International Journal of Management Science Vol.2 No. 3, 2010 — exhibit DW9.
  10. The Computational experiment: an econometric tool —– exhibit DW10.
  11. Journal of International Economics 32 (1992) 305 – 319, North – Holland——- exhibit DW11.
  12. Working Paper Series by Christopher J. Neely —- exhibit DW12.
  13. 19th Report of the Senior Staff Disciplinary Committee (SSDC) dated 29th April, 2015 —- exhibit DW13.
  14. Letter of dismissal from service dated 14th May, 2015 — exhibit DW14.

The witness was then cross-examined without being re-examined by the learned counsel to the defendants, and the defendants closed their case on 14th December, 2018. The suit was then adjourned for adoption of final written addresses.

When the matter came up on 31st October, 2019, U. B. Bob-manuel appeared for the Claimant while F. S. Uche announced appearance for the defendants. Both learned counsel to the parties adopted their final written addresses respectively. The Defendants’ final written address was filed on 14th day of October, 2019, but deemed on 31st October, 2019. The Claimant’s final written address was dated and filed on 25th October, 2019. With the adoption of parties’ final written addresses, the suit was adjourned for judgment.

THE CASE OF THE CLAIMANT:

The Claimant was appointed as Assistant Lecturer in the department of Economics, Faculty of Social Sciences of the 1st Defendant on the 11th of February, 1998. He rose through the ranks to the post of Senior Lecturer effective 1st October, 2007 and was awaiting his pronouncement as a Professor of Economics when he received a letter on 13th March, 2015 inviting him to appear before the Professional Ethics Committee (PEC) on the 19th of March, 2015 on a case of serial plagiarism.

According to the Claimant, the alleged plagiarized works were written by one Professor Gilbert Adoghor who wrote and acknowledged that he added the name of the claimant as co-author to pay him back for the articles the claimant wrote in the past and added his name at his own request.

That on the 9th of April, 2015, he again appeared before the PEC together with Prof. Gilbert Adoghor who admitted before the committee that he owned the three articles allegedly plagiarized, and added the claimant’s name as a co-author without the claimant contributing to the work. That the said Prof. Gilbert Adoghor then pleaded for leniency. The Claimant was subsequently queried on 20th April, 2015 and he answered the said query vide his reply dated the same 20th April, 2015 and denied knowledge of the articles because did not see even the manuscripts of the articles before publication.

According to the claimant, himself and Prof. Gilbert Adoghor were again invited to appear before the Senior Staff Disciplinary Committee on 27th April, 2015. That the defendants did not follow due process because the report of the Professional Ethics Committee was supposed to have been sent to the Senate where it would be decided whether the report should be sent to the Senior Staff Disciplinary Committee for further investigation or not. The Claimant further pleaded that the decision of the Senior Staff Disciplinary Committee that recommended his dismissal and Prof. Gilbert Adoghor was influenced by Professors Ajienka, Ogali and Georgewill. That the Governing Council of the 1st Defendant subsequently recommended and approved the dismissal of the Claimant and Prof. Gilbert Adoghor.

According to the Claimant, the singular act of giving the lead author and himself a co-author the same punishment was biased and shows evidence of victimization and injustice. That his dismissal by the 1st defendant is inconsistent with the procedures laid down in the University of Port Harcourt Act because his appointment has statutory flavor. That when he received the dismissal letter he wrote a letter of appeal to the Appeals Committee of the Council dated 8th June, 2015, and the 1st Defendant responded to his letter on 7th October, 2015, after which his lawyer issued a pre-action notice to the 1st Defendant. That at the time of his dismissal he was on basic salary of N4,733,004.33 (Four Million, Seven Hundred and Thirty Three Thousand, Four Naira, Thirty Three Kobo only excluding allowances. He therefore pleaded the following as special damages:

  1. Legal fees paid to his solicitor Chief Ikechi Wagbara of Chief Ikechi Wagbara & Co.
  2. Receipt No. 307 dated 26th May, 2015 = 600,000.

iii.                  Receipt No. 314 dated 8th June, 2015 = 400,000.

  1. Receipt No. 318 dated 23rd June, 2015 = 500,000.
  2. Receipt No. 324 dated 17th July, 2015 = 500,000.
  3. Receipt No. 328 dated 27th July, 2015 = 1,000,000.

The Claimant therefore urged the court to grant the reliefs being sought in this suit.

DEFENDANTS’ CASE:

According to the Defendants, the Claimant was a Senior Lecturer prior to his dismissal from the services of the 1st Defendant, and that on the 25th of June, 2009 he was suspended from duty based on the allegation of forgery and falsification of grade and degree results in the Department of Economics, but was subsequently recalled at the 122nd Meeting of the Governing Council of the 1st Defendant held on 17th May, 2010.

The Defendants pleaded further that, when the Claimant submitted academic works for appraisal and for elevation to the status of a Professor of Economics, he included the following academic papers:

  1. Adoghor G. I. and Ajie H. A.: The Computational Experiment: An Econometric Tool published in Nigerian Journal of Monetary Economics Vol. 6, Nos 6 and 7, April 2006.
  2. Adoghor G. I. and Ajie H. A. The properties of the Generalised Model of Moments in Asset Pricing: An Econometric Analysis published in the Nigerian Journal of Monetary Economics Vol. 4 Nos 4 and 5, January – June 2002.
  3. Adoghor G. I. and H. A. Ajie: The Foreign Exchange Risk Premium in a General Equilibrium Model Published in the International Journal of Management Science Vol. 2 No. 3 of 2010.

According to the Defendants, in the course of assessing the claimant for elevation to the rank of a professor of Economics, it was discovered that the above listed academic works were plagiarized works of the following authors and scholars:

  1. Finn E. Kydland University of Texas, Austin and Edward C. Prescott, Federal Reserve Bank of Minneapolis and University of Minnesota: The Computational Experiment: An Econometric Tool: Federal Reserve Bank of Minneapolis Research Department Staff Report 178 published in August 1994.
  2. Christopher J. Neely: A Reconsideration of the Properties of the Generalized Method of Moments in Asset Pricing Model: The Federal Reserve Bank of St. Louise Working Paper Series: Working Paper 1994 – 010A published in 1994 with a Revised Version 95-018A.
  3. Charles Engel: On the Foreign Exchange Risk Premium in a Generalized Equilibrium Model published in the Journal of International Economics 32 (1992) 305 – 309.

According to the Defendants, both the claimant and Prof. Gilbert Adoghor were summoned to appear before the Professional Ethics Committee for investigation, and the claimant admitted that the said academic works which formed part of his submission for consideration and elevation to the post of a professor of Economics were plagiarized but that Prof. Gilbert Adoghor was solely responsible for the plagiarism. That sequel to the Committee’s recommendation that a case of plagiarism be made against them, the Defendants directed the claimant to explain why disciplinary action should not be taken against him for plagiarism, and while the claimant in his Reply denied any involvement in the act of plagiarism and attributed all the blame to Prof. Gilbert Adoghor, the said Prof. Gilbert Adoghor in his response stated that the publications were a joint enterprise between him and the claimant

It was further pleaded by the Defendants that, both the Claimant and Prof. Gilbert Adoghor appeared before the Senior Staff Disciplinary Committee (SSDC), and after the Committee’s investigations it found both of them culpable, and the 1st Defendant’s Governing Council in her 149th Meeting held on 30th April, 2015 considered the Report of the Committee and resolved that the claimant be dismissed from the services of the 1st Defendant with effect from 30th April, 2015.

The Defendants finally pleaded the provisions of the Public Officers Protection Act which they intended to raise as a preliminary point, and also that the claimant did not exhaust the internal mechanism provided by the 1st Defendant’s enabling Act before commencing this suit.

DEFENDANTS’ SUBMISSIONS:

The Defendants identified three (3) issues for the determination of the court, to wit:

  1. Whether in considering the circumstances surrounding this suit, the claimant was not removed in accordance with the provisions of the University of Port Harcourt Act and or Regulations Governing the Defendant’s Institution.
  2. Whether the suit of the Claimant is not incompetent in that it was commenced without exhausting the internal mechanisms for dispute resolution provided by the Regulation Governing Staff Conditions of Service of July 1982.
  3. Further and or in alternative to (1) and (2) above, whether on the facts and evidence provided the claimant is entitled to the relief sought.

In arguing issue one (1), learned Defendants’ counsel referred the court to the provisions of sections 22(1) and 16(1) of the 1st Defendant’s enabling Act and submitted that in the exercise of the powers to appoint committees, the Council of the 1st Defendant appointed the Senior Staff Disciplinary Committee (SSDC) and the Professional Ethics Committee (PEC). That since section 22(1) does not contradict section 16(1), the two sections should be construed together. That the only question to ask is whether the Claimant was given fair hearing, and from the pleadings there was nowhere he alleged that he was not given fair hearing. Learned counsel cited the cases of OSIEC V. AC (2010) 19 NWLR (Pt. 1226) 273 and Agha V. IGP (1997) 10 NWLR (Pt. 524) 317 at 332, on the principle of fair hearing, and posited that from exhibits D1 and D13 as well as the whole evidence adduced in this case it is clear that the Claimant was afforded fair opportunity to be heard. The court is therefore urged to resolve issue one in favour of the defendants.

On Issue two (2), the Defendants’ counsel reproduced the provisions of Regulation 3(3.1)(d) of the 1st Defendant’s Regulation Governing Staff Conditions of Service of July, 1982, and argued that the provisions relate to internal mechanism for dispute resolution which should be exhausted before recourse to litigation. That the Claimant failed to exhaust the said internal mechanisms before instituting this suit as he only wrote a letter of appeal and could not wait for any action to be taken on the letter before filing this suit.

Learned counsel argued further that, where the terms and conditions of a contract of employment are specifically provided for by statute or regulation made thereunder, then the employment is said to be one with statutory flavor  and such an employee cannot be validly removed from office unless the provisions of the statute are strictly followed. The following cases were referred to: Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Bangboye V. University of Ilorin (2001) FWLR (Pt. 32); Oloruntoba-Oju V. Abdulraheem (2009) All FWLR (Pt. 797) 1 and Adeniye V. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt. 300) 726.

According to learned counsel, just as the employee is protected by statute, the employer too enjoys statutory protection , and that since the claimant failed to adhere to the provisions of the 1st Defendant’s Regulations with respect to the internal mechanism for dispute resolution, this suit is incompetent.

With respect to issue three (3), it is argued that the Claimant has failed to show in what manner his dismissal from the services of the 1st defendant was unlawful so as to be entitled to the reliefs in this suit. That the evidence of the claimant that he was not culpable for the act of plagiarism and that he never pleaded for leniency contradicts exhibits CW24 and CW25 where he admitted that he consented that his name be included in the plagiarized article and pleaded for leniency.

Learned counsel referred the court to exhibits CW1 to CW22 tendered by the Claimant, and submitted that there is nothing in the said exhibits to show that the dismissal of the claimant was unlawful. That exhibits CW1 to CW7 merely relate to the facts of the claimant being an employee of the 1st defendant which facts are not in issue; exhibits CW8 to CW24 merely show that the claimant was invited by both the Senior Staff Disciplinary Committee and the Professional Ethics Committee and these exhibits do not in any way support the Claimant’s allegation that he was unlawfully dismissed.

That on the contrary, the defendants’ exhibits DW1 to DW14 show that the claimant was lawfully dismissed having been found guilty of plagiarism. That since the claimant did not contradict the evidence of the defendants, they should be accepted and acted upon by the court. See Ogungumo V. Ademolu (1995) 4 NWLR (Pt. 389) 254 and Eng Const Ltd V. Sodpr Ltd (2006) 13 NWLR (Pt. 996) 73.

The court is finally urged to dismiss the case of the Claimant for want of proof.

CLAIMANT’S SUBMISSIONS:

The Claimant identified a lone issue for the determination of this court, to wit:

  1. Whether the 1st – 4th defendants complied with the provisions laid down by the University of Port Harcourt Act (The Act) and the University of Port Harcourt Regulations Governing Staff Conditions of Service (2012), and afforded the claimant the opportunity to defend himself or that he was given a fair hearing.

Learned Claimant’s counsel reproduced the provisions of the 1st Defendant’s Regulations Governing the Conditions of Service and section 16 of the 1st Defendant’s enabling Act, and argued that the procedures outlined in those provisions were not complied with in arriving at the decision to dismiss the claimant from service.

According to learned counsel, since there was no petition against the claimant as none was brought to his attention, the Head of Department had no material to act on and the directive of the Vice Chancellor to the Chairman of the SSDC to investigate the allegation of plagiarism against the Claimant was not based on anything since there was no report to him by the Head of Department. That the report or findings of the PEC and SSDC therefore had no basis and should be nullified by the court. That since the employment of the Claimant had statutory coloration, his appointment cannot be terminated lawfully except in the manner prescribed by the statute. See Raji V. University of Ilorin (2009) 15 NWLR (Pt. 1057) 259 at 275, University of Nigeria Teaching Hospital Management Board V. Nnoli (1994) 8 NWLR (Pt. 363) 376 and Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 605.

Learned counsel referred to exhibits CW18, CW20, CW21, CW22, CW23 and CW24, and argued that, the defendants jettisoned the laid down provisions of the 1st Defendant’s enabling statute and Regulations thereby denying the claimant fair hearing; and that the Claimant exhausted all avenues for channeling grievances, including that of appeal before he approached the court for redress.

The court is finally urged to grant the reliefs in this suit.

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and submissions of counsel for the parties, I shall adopt issue two formulated by the defendants as well as the Claimant’s lone issue in determining this suit. These two issues are so encompassing as to resolve all the questions in this suit. These issues are :

  1. Whether the suit of the claimant is not incompetent in that it was commenced without exhausting the internal mechanisms for dispute resolution provided by the Regulation Governing Staff Conditions of Service of July 1982.

 

  1. Whether the 1st – 4th Defendants complied with the provisions laid down by the University of Port Harcourt Act (The Act) and the University of Port Harcourt Regulations Governing Staff Conditions of Service (2012), and afforded the claimant the opportunity to defend himself or that he was given a fair hearing.

With respect to issue one, it is the contention of the learned counsel to the Defendants that since the Claimant failed to exhaust the internal dispute resolution mechanism as provided in Regulation 3(3.1)(d) of the 1st Defendant’s Regulation Governing Staff Conditions of Service, this suit is incompetent.

I have carefully looked at the said provisions of the said Regulation 3(3.1)(d) of the 1st Defendant’s Regulation Governing Staff Conditions of Service reproduced by the learned counsel to the defendants at paragraph 6.4 of the Defendants’ final written address, and I must say that the said provisions afford a staff against whom a disciplinary action has been taken the opportunity to appeal the decision to the appropriate bodies including the Council.

With the avalanche of evidence in this case, I am surprised that learned counsel will urge the court to take the position that this suit is incompetent ostensibly because the claimant failed to take advantage of the provisions for review of the decision taken against him. It is in evidence that, after the Claimant was dismissed from service on 14th May, 2015 vide exhibit CW17, he wrote exhibits CW22 and CW24 dated 11th May, 2015 and 8th June, 2015 respectively, and addressed to the Chairman, Appeals Committee of the Governing Council of the 1st Defendant. His solicitors also wrote exhibit CW19 dated 23rd June, 2015. The Claimant’s appeal was considered by the Appeals Committee whose report led to the issuance of exhibit CW23 and the annexed letter dated 7th October, 2015 which upheld the dismissal of the Claimant from service.

In view of above, I do not know the type of internal mechanisms the defendants want the Claimant to exhaust before approaching the court of law. The Claimant clearly did all that was required of him administratively, and I find no merit in the arguments of the Defendants. It is therefore my decision on this issue that this suit is competent and issue one is therefore resolved against the Defendants.

On issue two, may I start by stating that parties in this suit are ad idem on the employment of the Claimant with the 1st Defendant, hence his employment as Assistant Lecturer and subsequent elevations up to the post of Senior Lecturer are not in dispute in this suit. See exhibits CW1, CW2, CW3, CW4, CW5 and CW6.

Another point that is not in dispute is the employment status of the claimant as being one with statutory flavor or coloration. Both the Claimant’s counsel as well as the counsel to the Defendants have argued that since the employment of the Claimant was governed by the Act establishing the 1st Defendant and the 1st Defendant’s Regulations Governing Staff Conditions of Service, the claimant’s appointment is statutorily flavoured thereby having a special status over and above the regular master and servant relationship. I cannot agree more with both counsel on this. See Comptroller General of Customs & Ors. V. Comptroller Abdullahi B. Gusau (2017) 11 ACELR 132 at 139 – 140, Alhaji Mohammed Bala Audu V. Petroleum Equalisaton Fund (Management) Board & Anor. (2010) LPELR-3824(CA), P. C. Imoloame V. West African Examinations Council (1992) LPELR-1500(SC), and Power Holding Company of Nigeria Plc V. Mr. I. C. Offoelo (2014) 3 ACELR, page 1 at 19 – 20.

The only contending issue in this case is whether the dismissal of the Claimant by the Defendants complied with the provisions of the 1st Defendant’s enabling Act and Regulations Governing Staff Condition of Service as argued by the Defendants, or it fell short of those provisions as argued by the Claimant.

 For the purpose of clarity it is apposite to reproduce the provision of section 16 of the 1st Defendant’s enabling Act:

“16. (1)         If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional 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 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.

 

Learned counsel to the Defendants has argued that by the provisions of section 22 of the 1st Defendant’s enabling Act, the 1st Defendant has the power to appoint committees to act on its behalf and that pursuant to the said provision, the Professional Ethics Committee and the Senior Staff Disciplinary Committee were constituted. Having looked at the provision of section 22 referred to above, I agree with learned counsel that section 16 of the Act cannot be interpreted in isolation without reference to section 22 upon which the two committees were established.

 The procedure provided in section 16 of the 1st Defendant’s enabling Act reproduced above relate to disciplinary action against any academic, administrative or professional staff of the 1st Defendant other than the Vice Chancellor, before such a staff can be removed from office. The disciplinary procedure has therefore become part of the conditions of service of such academic, administrative or professional staff of the 1st Defendant.

The Claimant who is alleging that his dismissal did not follow due process as outlined in the 1st Defendant’s enabling Act and the 1st Defendant’s Regulations Governing Staff Condition of Service has the burden of proving these allegations on a balance of probabilities. See sections 131, 132, 133 and 134 of the Evidence Act, 2011.

The law is trite that a party who alleges that his dismissal was illegal must plead and prove the following facts to enable him or her succeed in his claims before the court:

  1. That he or she is an employee of the Defendant,
  2. He or she must place before the court the terms and conditions of his or her employment.
  3. He or she must state who can appoint and who can remove him,
  4. In what circumstances his or her employment can be determined, and
  5. In what manner the said terms of the employment were breached or violated by the Defendant.

See Raphael Ogumka V. Corporate Affairs Commission (2010) LPELR-4891(CA) where the Court of Appeal held as follows:

“It is trite law, that when an employee complains of unlawful termination of employment by his employer, he has the onus to prove the unlawful termination of the said employment by: (a) Placing before the court the terms and conditions of the contract of employment, and (b) proving in what manner the said terms were breached by the employer. See Angel Spinning & Dying Ltd V. Ajah (2000) 13 NWLR Part 685 Page 532.”

The Claimant informed this court in his evidence-in-chief vide his statement on oath which is almost similar to his pleadings that, he was a Senior Lecturer in Economics on CONUASS 5 Step 1 and was awaiting his pronouncement as a Professor of Economics when he received a letter on 13th March, 2015 inviting him to appear before the Professional Ethics Committee (PEC) on a case of serial plagiarism. According to the Claimant, when he cross-checked his CV he discovered that the alleged plagiarized works were written by one Professor Gilbert Adoghor who included the Claimant’s name as a co-author. That he also visited the internet and confirmed that the articles were lifted from the works of other people; and the said Prof. Gilbert Adoghor wrote and acknowledged that he was solely responsible for the three articles and the Claimant’s name was added as co-author as a payback for the articles the claimant wrote in the past and added his name on his request.

That after his presentation before the Professional Ethics Committee the members of the Committee were convinced that he was not the maker of the three articles but insisted on hearing from Prof. Gilbert Adoghor. That himself and Prof. Gilbert Adoghor appeared before the Committee on the 9th of April, 2015, and Prof. Gilbert Adoghor admitted before the committee that he owned the three articles and added the claimant’s name as a co-author without the claimant contributing to the work and pleaded for leniency.

According to CW, he was subsequently queried on 20th April, 2015 and he answered the said query vide his reply dated the same 20th April, 2015 and denied knowledge of the articles because he did not see even the manuscripts of the articles before publication.

According to CW, himself and Prof. Gilbert Adoghor collaborated and he added the name of Prof. Gilbert Adoghor to the five articles he published which he listed at paragraphs 9(c)(i) –(v) of his deposition, while Prof. Gilbert Adoghor added the claimant’s name to the three articles he published as a payback which are listed at paragraphs 9(d)(i)-(iii) of the deposition on oath of the Claimant. That the three articles published by Prof. Gilbert Adoghor turned out to be plagiarized articles.

The CW further informed the court that, himself and Prof. Gilbert Adoghor were again invited to appear before the Senior Staff Disciplinary Committee on 27th April, 2015. That the defendants did not follow due process because the report of the Professional Ethics Committee was supposed to have been sent to the Senate where it would be decided whether the report should be sent to the Senior Staff Disciplinary Committee for further investigation or not. The Claimant appeared before the Senior Staff Disciplinary Committee whose decision to recommend the dismissal of both the claimant and Prof. Gilbert Adoghor was allegedly influenced by Professors Ajienka, Ogali and Georgewill. That the Governing Council of the 1st Defendant subsequently approved the dismissal of the Claimant and Prof. Gilbert Adoghor.

According to CW, the situation where both the lead author and himself a co-author were given the same punishment was biased and shows evidence of victimization and injustice. That his dismissal from service violated his rights to fair hearing because the provisions of the 1st Defendant’s enabling Act was not complied with.

That at the time of the dismissal his annual basic salary was N4,733,004.33 (Four Million, Seven Hundred and Thirty Three Thousand, Four Naira, Thirty Three Kobo only).

During cross-examination, the witness answered that he has BSC in Economics, MSC in Economics, MBA in Finance, PHD in Economics, LLB and BL. He maintained that, he did not contribute to the plagiarized works and that it was Prof. Adoghor Gilbert that assumed full responsibility for the works. That while he included the name of Prof. Gilbert Adoghor in the four articles he made, the said Prof. Gilbert equally included his name in the ones he did. The witness then admitted that the articles that were plagiarized were presented for his professorial assessment and considered along with 51 other articles. That while he consented to the inclusion of his name as co-author to the three articles, he did not know that they were plagiarized because he did not see the manuscripts before publication. That Prof. Gilbert Adoghor has a penchant for plagiarism because apart from the three articles in question, his two other articles were copied from the works of other people word for word.

The Defendants’ sole witness Promise Simeon who introduced himself as Personnel Officer (Academic) of the University of Port Harcourt, informed the court during examination –in- chief that, when the Claimant submitted his supposed academic work for appraisal and consideration for elevation to the status of a professor of Economics, he included three publications listed at paragraph 3(a-c) of DW’s deposition, which were reproduction of publications of other individuals listed at paragraph 4(a-c) of the statement on oath of DW. That in line with the practice in the University, the matter was referred to the Professional Ethics Committee for investigation. According to DW, the Claimant admitted that the academic papers were plagiarized but that Prof. Gilbert Adoghor was solely responsible for the plagiarism. That the Claimant was queried vide memo dated 20th April, 2015 and he denied any involvement in the act of plagiarism, but Prof. Gilbert Adoghor in his response stated that the publications were a joint enterprise between him and the Claimant.

DW further told the court that, both the claimant and Prof. Gilbert Adoghor appeared before the Senior Staff Disciplinary Committee  and at the end of the committee’s work, both of them were found culpable. The Governing Council at her 149th Meeting on the 30th April, 2015 considered the Report of the Senior Staff Disciplinary Committee and resolved that the claimant be dismissed from service with effect from 30th April, 2015.

During cross-examination DW answered that he is not a member of both the Professional Ethics Committee and the Senior Staff Disciplinary Committee, and that he was not present when the decisions were taken.

That apart from the University of Port Harcourt Act which provides for the procedure of removing any senior staff, there are other regulations governing the removal of senior staff. That he has been the Personnel Officer Academics for three years and he knows both Prof. Adoghor (of blessed memory) who was of the Department of Economics and Nsunni Nsiegbe who was his immediate predecessor. That the Appointment and Promotion Committee does not have final say because every decision is subject to Council approval. That his evidence before the court was by virtue of his office because administration is a continuance.

May I at this point state that, by the provision of Section 16 (1) of the University of Port Harcourt Act earlier reproduced in this judgment, before an academic, administrative or professional staff of the 1st Defendant other than the Vice-Chancellor can be validly dismissed or removed from service, the following statutory processes must be complied with:

  1. 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,
  2. The Council must give notice of those reasons to the person in question,

iii.                The Council must afford the staff an opportunity of making representations in person on the matter to the Council,

  1. The Council shall, if the staff or any three members of the Council so request within the period of one month of the date of notice, constitute a joint committee of the Council and the Senate to investigate the matter and report to the Council and afford the officer an opportunity of appearing before the investigating committee and be heard with respect to the matter.
  2. If the Council, after considering the report of the investigating committee, is satisfied that the staff in question should be removed, the Council may then remove the staff by an instrument in writing signed on the directions of the Council.

The Defendants in the exercise of the powers under section 22 of the 1st Defendant’s enabling Act set up the Professional Ethics Committee and the Senior Staff Disciplinary Committee which queried the Claimant vide exhibits CW8, CW11, CW13, CW20 and DW3, and the Claimant’s responses are in evidence as exhibits CW10, CW12, CW14 and DW4.

There is therefore no doubt that the Claimant was duly informed of the allegations against him and had ample opportunity to exculpate himself because aside the written representations, he admitted that he appeared before the Committees set up to investigate the allegations. I do not therefore believe the Claimant when he informed the court that his right to fair hearing was breached by the Defendants.

The Claimant’s counsel has argued that since there was no petition against the claimant, the Head of Department had no material upon which to exercise his discretion to either believe or not believe that disciplinary action should be taken against him, relying on the Regulations Governing Staff Condition of Service of the 1st Defendant. I have perused the averments in the Statement of Facts, the depositions in the Claimant’s witness statement on oath, the Reply to Statement of Defence and the Further witness Statement on Oath, and nowhere in these processes did the Claimant plead the Regulations Governing Staff Condition of Service of the 1st Defendant. The said Regulation was also not tendered in evidence in this suit.

The issue of the 1st Defendant’s Regulations Governing Staff Condition of Service appeared for the first time in the Claimant’s Final Written Address. The law is trite that address of counsel no matter how gorgeously dressed or adorned, cannot take the place of evidence. See  Sikiru Olaide Okuleye V. Alhaji Rasheed Adeoye Adesanya & Anor (2014) LPELR-23021(SC) where the apex court stated thus: “ I must comment on the observation of the Court of Appeal on the brilliant address of learned counsel for the appellants. The closing speech by counsel no matter how brilliant, and alluring never takes the place of legal proof required. There can be no substitute for evidence.”

Exhibit CW17 which is the dismissal letter issued on the authority of the 1st Defendant’s Governing Council is hereby reproduced for lucidity:

May 14, 2015

UPH/1998/2259

 

Dr. Hycenth A. Ajie

Department of Economics,

Faculty of Social Sciences

University of Port Harcourt,

Port Harcourt.

 

Dear Dr. Ajie,

 

DISMISSAL FROM SERVICE

 

At its 149th Meeting held on Thursday, 30th April, 2015, the Governing Council of the University of Port Harcourt considered the 19th Report of the Senior Staff Disciplinary Committee (SSDC), which found you guilty of Serial Plagiarism.

After due deliberation on the matter, Council decided that:

 

YOU BE DISMISSED FROM THE SERVICES OF THE UNIVERSITY OF PORT HARCOURT FOR SERIAL PLAGIARISM, WITH EFFECT FROM 30TH APRIL, 2015.

 

In the light of this, I write to inform you that you have been dismissed from the services of the University, as a result, your services are no longer required by the University.

 

Please hand over all the University property in your possession (if any), including your Staff Identity and Health Centre Registration Cards, to your Head of Department before your exit from the University.

 

Yours sincerely,

Matilda Nnodim, (Mrs.)

Registrar

I have equally considered exhibit CW16 which is the 19th Report of the Senior Staff Disciplinary Committee (SSDC) to Council, and exhibit DW6 (the Minutes of the 43rd Meeting of the Senior Staff Disciplinary Committee held on 27th April, 2015), and it is clear that the said committee was constituted at the instance of the Council of the University with representatives of the Council. The plagiarized works are in evidence as exhibits DW7, DW8 and DW9, all bearing the name of the Claimant as one of the authors of the academic works. The works were alleged to be copied from exhibits DW10, DW11 and DW12 which the claimant admitted that he presented to the 1st Defendant for the purpose of being assessed and pronounced as a professor of Economics.

I do not believe the claimant that his name was added to the plagiarized academic works without his knowledge because he had told the court that himself and Prof. Gilbert Adoghor had an agreement wherein the claimant had included the name of Prof Gilbert in his published works, and it was now the turn of Prof. Gilbert to payback the ‘good gesture’ by including the claimant’s name in the works which turned out to be plagiarized. The Claimant who would have taken the benefits of these academic works and be pronounced a professor of Economics if the act of plagiarism had not been discovered cannot now turn around and claim that he did not know anything about the plagiarized academic works.

The allegation of plagiarism particularly in an academic environment which is a place of research and innovation is a serious one. It is therefore disheartening that academic staff who are to champion the cause of hard work and excellence not only in our tertiary institutions but the society in general will find themselves enmeshed in such act of plagiarism.

I have equally looked at the reliefs in paragraph 47 of the Statement of Fact, and it is evident that the principal reliefs are declaratory in nature. These are not reliefs that can be granted in default of pleadings or even where the defendant admits the claims. The Claimant in this case has the onerous onus of proving his case without relying on any perceived weakness in the case of the Defendants. There are legions of authorities in support of this legal position. In the case of Peoples Democratic Party & Anor V. Independent National Electoral Commission (INEC) & Ors. (2012) LPELR-8409, the Court of Appeal stated as follows with respect to declaratory reliefs: “It is trite that in cases where declaratory reliefs are claimed as in the present case and notwithstanding the fact that 1st respondent did not file a reply or call evidence to challenge the appellants’ evidence that failure of the respondent would not relieve the said appellant from satisfying the Tribunal by cogent and reliable proof of evidence in support of his claim or petition. Appellants should succeed on the strength of their own case and not on the weakness of the respondent’s case. See Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt. 9) 458, Ezewysun vs. Okoro (1993) 5 NWLR (Pt. 294) 478, Balogun vs. Uba Ltd. (1992) 6 NWLR (Pt. 247) 336.”

Having therefore reviewed the Claimant’s case, I am not satisfied that he has established his case to be entitled to the reliefs being sought from this court.

Issue two is therefore resolved against the Claimant.

On the whole, this suit fails and is hereby dismissed for lacking in merit. Judgment is entered accordingly. I make no order as to cost.

Hon. Justice P. I. Hamman

Judge

 

APPEARANCES:

 

Chief Ikechi Wagbara for the Claimant

No representation for  the Defendants

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