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National Industrial Court

Dr. John Emenike Chikwe -VS- University of Port Harcourt & 4 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: 26TH NOVEMBER, 2018             SUIT NO: NICN/YEN/31/2015

BETWEEN:

  1. JOHN EMENIKE CHIKWE     ————————–         CLAIMANT

 

AND

 

  1. UNIVERSITY OF PORT HARCOURT —— 1ST SET OF DEFENDANT

 

  1. PROFESSOR. E. R. KILANI

(Chairman, Professional Ethics Committee)

  1. HENRIETTA OKEKE

(Secretary, Professional Ethics Committee)        2ND SET OF DEFENDANTS

(For themselves and on behalf of the members

of the Professional Ethics Committee of the

University of Port Harcourt)

  1. OKECHUKWU AJUNWA ESQ.

(Chairman, Senior Staff Disciplinary Committee)

  1. STEPHEN EKE

(Secretary, Senior Staff Disciplinary Committee)   3RD SET OF DEFENDANTS

(For themselves and on behalf of the members of

Senior Staff Disciplinary Committee of the

University of Port Harcourt)

 

REPRESENTATION:

 

  1. S. Uche (Mrs.) with E. Okah, B. C. Ohochukwu and O. L. Chikwe for the Claimant

Chief  K. C. Ehiogu Esq. for  the Defendants

 

JUDGMENT

 

By a Complaint dated 30th June, 2015 and Statement of Facts dated 29th June, 2015 and filed on 30th June, 2015, the Claimant commenced this suit against the Defendants seeking the following reliefs from the court:

  1. A declaration that the Professional Ethics Committee of the University of Port Harcourt and or her proceedings and or conclusions in as far as it pertains to allegations made against the Claimant is illegal, unlawful, null and void and of no effect whatsoever.

 

  1. A declaration that the 1st Defendant is not entitled to act upon any report, recommendation and or pronouncement made and or purportedly made by the 2nd set of Defendants regarding any complaint however arising concerning the Claimant.

 

  1. A declaration that the 3rd set of Defendants are not entitled to consider any recommendation purportedly emanating from the 2nd set of Defendants and or otherwise concerning the Claimant and that any such consideration and or action is illegal, unlawful, null and void and of no effect whatsoever.

 

  1. A declaration that the report made and or purportedly made by the said 3rd set of Defendants wherein the Claimant was purportedly found culpable of plagiarism and the adoption of the said Report by the Council of the University of Port Harcourt is illegal, unlawful, null and void and of no effect whatsoever.

 

  1. A declaration that the 1st set of Defendants letter reference No: UPH/2005/2750 dated the 1st day of April, 2015 and served on the Claimant on the 17th day of April, 2015 purporting to have dismissed the Claimant from the services of the Defendant is illegal, unlawful, unconstitutional, null and void and of no effect whatsoever.

 

  1. A declaration that the Claimant’s engagement with the 1st set of Defendants is subsisting and that any interference with the said Claimant’s employment with said 1st set of Defendants on matters related to the letter aforesaid is illegal, unconstitutional, null and void and of no effect whatsoever.

 

 

  1. A declaration that the Claimant as such staff of the 1st set of Defendants is entitled to all salaries, emoluments, benefits and or promotions attendant to the Defendants’ (sic) office as Staff of the Defendant and that any failure and or refusal by the Defendant to treat the Claimant accordingly is illegal, null and void and of no effect whatsoever.

 

  1. An Order of Court setting aside any action, report recommendation made and or purportedly made by the said Professional Ethics Committee regarding the Claimant.

 

  1. An Order setting aside the findings and or conclusion of the Senior Staff Disciplinary Committee and as well as its adoption by the Council of the 1st set of Defendants.

 

  1. An Order of injunction restraining the Defendants from in any manner whatsoever interfering with the Claimant’s employment with the Defendant save as permitted by law.

 

  1. An Order directing that the 1st set of Defendants to pay to the Claimant all his emoluments, salaries and or allowances as the Claimant shall be entitled to.

 

  1. Any further Order(s) as the Honourable Court shall consider appropriate.

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 22nd July, 2015.

With the close of pleadings, the matter thereafter proceeded to trial wherein the Claimant testified for himself as CW1. He adopted his witness deposition on oath made on 30th June, 2015. The witness then tendered 14 documents which were admitted and marked as exhibits CW1A, CW1B, CW1C1 –CW1C422, CW1D1-CW1D290, CW1E, CW1F, CW1G, CW1H, CW1J, CW1K, CW1M1-CW1M113, CW1N1-CW1N174, CW1P1-CW1P12 and CW1Q1-CW1Q4.

The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel. The Claimant then closed his case on 30th January, 2018 and the case was adjourned to 28th February, 2018 for Defence.

It is pertinent to state that the Claimant filed an application dated and filed on 27th February, 2018, for leave to re-open his case and call one Leona Chikwe Esq as a witness in this case. With leave of court, the Claimant re-opened his case and called Leona Chikwe Esq who testified as CW2 on 10th of April, 2018. The witness adopted her witness deposition on oath made on 27th February, 2018. The witness was then cross-examined by the defence without being re-examined by the Claimant’s counsel. The Claimant finally closed his case on 10th of April, 2018, and an opportunity was given to the Defendants to open their Defence.

The Defendants opened their defence on the 30th of April, 2018, by calling Michael Dike who testified as DW. The witness adopted his witness deposition on oath made on 22nd July, 2015, was cross-examined by the Claimant’s counsel without being re-examined by the Defendants’ counsel. It is instructive to note that, while the Defendant did not tender any document, one (1) document was tendered by the Claimant’s counsel through this witness during cross-examination and admitted by the court as Exhibit DW1.

On the 18th of July, 2018, the Defendants closed their case after which the suit was adjourned to 4th October, 2018 for adoption of Final Written Addresses.

On 4th October, 2018, parties could not adopt their Final Written Addresses because the Claimant was yet to file his Final Written Address. The matter was further adjourned to 15th October, 2018 for adoption of Final Written Addresses.

When the matter came up for hearing on the 15th October, 2018, parties could still not adopt their Final Written Addresses because the learned counsel to the Defendants informed the court that he was served with the Claimant’s Final Written Address that morning of 15th October, 2018, and would like to file a Reply on Points of Law. The matter was again adjourned to 23rd October, 2018 for adoption of Final Written Addresses.

On the 23rd October, 2018 parties adopted their Final Written Addresses respectively. The Defendants’ Final Written Address which was undated was filed on 21st September, 2018.

The Claimant’s Final Written Address was dated 11th October, 2018 and filed on 12th October, 2018. The Defendants filed a Reply on Points of Law dated 18th October, 2018 and filed on 23rd October, 2018.

With the adoption of the parties’ Final Written Addresses, the suit was adjourned to 26th November, 2018 for judgment.

THE CASE OF THE CLAIMANT:

It is the case of the Claimant that, he was offered a temporary appointment by the Defendants on 4th October, 2005, vide letter with reference number UPH/REG/SS.3307/2 as a Lecturer II in the Department of Management of the Faculty of Management Sciences of the 1st Defendant, which he accepted.

That by the terms of the letter of employment it was provided that the Memorandum containing the terms of temporary appointment shall along with the letter constitute the basic terms including the provisions of the 1st Defendant’s condition of service as contained in her Regulations Governing Staff Conditions of Service and the provisions of the University of Port Harcourt Act, Cap. U13 LFN, 2004.

The Claimant averred further that, the temporary appointment was converted to a full time pensionable employment vide letter dated 17th October, 2006 with reference number UPH/REG/SS.3307, wherein he was raised from Salary scale UASS 3 Step 2 to UASS 3 Step 1.

That due to his diligence in the discharge of his duties he was promoted firstly to the position of Lecturer 1 and subsequently to the position of Senior Lecturer vide letters dated 25th May, 2009 with reference number UPH/2005/2750 and 16th December, 2013 with reference number UPH/2005/2750 respectively.

According to the Claimant, himself and his teaching colleagues in the 1st Defendant (Dr. B. M. Nwibere and Dr. B. C. Emecheta) collaborated in the academic text titled, “Management: An Integrated Approach” which was published in 2009. That his contributions to the work were limited to proof reading of chapter two (2) (the Evolution of Management Thought) and Chapter seven (7) (Organizational Planning and Goal Setting) as well as the title of the Book, “Management: An Integral Approach.”

That aside this Book co-authored by the Claimant, Dr. B. M. Nwibere and Dr. B. C. Emecheta, Dr. B. M. Nwibere also co-authored another Book titled, “Understanding and Managing Organisational Behaviour” with one Professor Don Baridam, a former Vice-Chancellor of the 1st Defendant.

The Claimant averred further that, vide memoranda dated 24th of March, 2014, and 31st March, 2014,  he was requested to appear before the 2nd set of Defendants on allegation of plagiarism and fake certificate against Dr. B. C. Emecheta. That when he appeared before the 2nd set of Defendants he realized that his name was included in the invitations given to B. C. Emecheta, B. M. Nwibere and Prof. Don Baridam over allegation of plagiarism. That they protested to the 2nd set of Defendants that the procedure adopted was against the Regulations and other extant conditions of service of the 1st Defendant regarding discipline because no allegation and or notice was made in writing and no identifiable petitioner in respect of the purported complaint.

That by letter dated 8th July, 2014 with reference number UPH/2005/2750 and served on the Claimant on 9th July, 2014, the Claimant was directed to appear before the 3rd set of Defendants on 16th July, 2014, to answer allegation of Plagiarism purportedly based on the report and or recommendation of the 2nd set of Defendants. That the facts constituting the alleged allegation were never made known to the Claimant in writing at the material time, and it was during his appearance before the 3rd set of Defendants on 16th July, 2014 that the Chairman of the Senior Staff Disciplinary Committee directed that a copy of the petition and the alleged plagiarized material be made available to the Claimant.

According to the Claimant, the subject of the alleged plagiarism is an article in the Nigerian Academy of Management Journal (Volume 2 Number 2, June, 2008) wherein an article titled, “Business Ethics: a Panacea for Sustainable Development in Nigeria” allegedly authored by Messrs Oghene/G.O. Yomere and published at pages 13 – 24 was found to have been lifted and reproduced in the authored Book “Management: An Integrated Approach” at pages 88 – 93.

That during the course of sittings of the 3rd set of Defendants, Dr. B. M. Nwibere admitted that the area of the subject of the plagiarism claim was made by him and that neither the Claimant nor Dr. B. C. Emecheta was involved.

According to the Claimant, he informed the 3rd set of Defendants that he only proof read chapters two and seven of the Book, construction of the title and financial contribution to the publication and had no knowledge of the alleged plagiarism and or that the Book had plagiarized contents.

That on the 17th of April, 2015, the Claimant received a letter from the 1st Defendant dated 1st April, 2015 with reference number UPH/2005/2750 dismissing the Claimant from the service of the 1st Defendant with effect from 13th February, 2015. The Claimant appealed against the dismissal vide letter to the 1st Defendant’s Council Appeal Committee dated 17th April, 2015.

That since his employment was governed by the provisions of the 1st Defendant’s Conditions of Service as contained in the 1st Defendant’s Regulations Governing Staff Conditions of Service as well as the University of Port Harcourt Act, Cap. U13 LFN 2004, the proceedings leading to his dismissal ought to have complied with the provisions of the said Regulations and Statute, but the Defendants failed to follow the stipulated procedure provided in the 1st Defendant’s Regulations and Statute.

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

DEFENDANTS’ CASE:

According to the Defendants, the Claimant’s appointment with the 1st Defendant which was confirmed as a Senior Lecturer was governed by the provisions of the Regulations governing staff conditions of service as well as the University of Port Harcourt Act, Cap. U13 LFN, 2004. That these provisions were complied with in determining the allegation against the Claimant, and the subsequent dismissal of the Claimant from service.

That since the Claimant contributed financially to the plagiarized Book, proof read and gave the title of the Book, and also benefitted from its publication, he cannot be exonerated from the act of plagiarism which he allegedly admitted through his act of proof reading the Book.

That the Claimant’s case is different from those of Dr. B. M. Nwibere and Prof. Don Baridon because while the Claimant co-authored the work, Dr. B. M. Nwibere merely committed academic fraud of using the name of Prof. Don Baridon as a co-author of his book, and the said Prof. Baridon did not contribute materials or finance nor proof read or title Dr. Nwibere’s book.

That the Defendants followed and complied with the 1st Defendant’s Act and Regulation and made the relevant materials available to the Claimant who used same to defend himself in writing before the Senior Staff Disciplinary Committee; and that the Claimant admitted that he proof read the Book, contributed to the Book, titled it, part financed it and consequently benefited from the proceeds of the Book. According to the Defendants, the Claimant was more involved in the plagiarized Book than his colleagues.

The Defendants finally averred that, they were not served with any copy of the Claimant’s Appeal and that the Claimant is not entitled to any of the reliefs being sought from the court, and urged the court to dismiss the suit with cost against the Claimant.

DEFENDANTS’ SUBMISSIONS:

The Defendants’ Final Written Address though undated was filed on 21st September, 2018.

The Defendants identified two (2) issues for the determination of the court, to wit:

  1. Whether the dismissal of the Claimant from the 1st Defendant’s institution by the Governing Council based on allegation of misconduct was done in accordance with the provisions of Section 15 of the University of  Port Harcourt Act 2004, and its accompanying Regulations.

 

  1. Whether the 1st Defendant’s Governing Council was bound to follow the recommendations of its Investigative Committee in acting on the allegation of misconduct of the Claimant.

In arguing issue one (1), the Defendants submitted that when an office or employment has statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations made there-under, any person holding that office enjoys special status over and above the ordinary master/servant relationship. That in disciplining such a person whose employment has statutory flavor such as the Claimant in this suit, the procedure laid down by the applicable statute must be followed and complied with.

The learned Defendants’ counsel Chief K. C. Ehiogu Esq. reproduced section 15 of the University of Port Harcourt Act, 2004 as the law applicable and governing the Claimant’s employment, and submitted that, the duty of the court in the circumstance of this suit is to act in the court’s supervisory jurisdiction or judicial control to see whether the procedure laid down by law was observed by the 1st Defendant in dismissing the Claimant. See West African Examination Council V. Mbamalu (1992) 3 NWLR (Pt. 230) 481 and UNTHMB V. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 401.

 

According to the Defendants, from the facts of the case it shows that the procedures adopted by the Defendants in dismissing the Claimant from the 1st Defendant complied with the provisions of section 15 of the University of Port Harcourt Act, and the Regulation made thereunder.

That the Defendants first set up a Committee known as Professional Ethics Committee which confronted the Claimant and his co-authors with the allegation of plagiarism leveled against them. That the Claimant admitted co-authoring the plagiarized Book and that he agreed that he proof read the book, gave the book title and contributed financially to the publication of the Book. That the Claimant who forwarded the Book to the 1st Defendant’s Appointments and Promotions Committee for the purpose of promotion cannot now turn around to deny that he did not write the portion of the Book that was plagiarized.

The Defendants further argued that, at the end of the Preliminary Investigation a prima facie case was established against the Claimant in the Report made to the Vice Chancellor, and based on the Report a second panel known as the Senior Staff Disciplinary Committee was constituted which is made up of the 3rd set of Defendants in this suit. That when the Claimant and the co-authors were invited before this panel, the Claimant alleged that the allegation against him was not made in writing and there was no identifiable petitioner in respect of the alleged complaint against him.

According to the Defendants, it is in evidence that the directive of the Chairman of the Senior Staff Disciplinary Committee that the allegations against the Claimant should be made available to him was duly carried out vide letter dated 25th July, 2014, wherein the Registrar in writing forwarded the plagiarized materials and all other documents to the Claimant to enable him defend himself. That it was on the strength of the materials made available to the Claimant that he responded to the allegation in writing vide his defence/response dated 30th July, 2014.

That it was also based on the Claimant’s response that the 3rd Defendant found him guilty hence the 16th Report and its subsequent adoption vide the 19th Report.

It was further submitted by the Defendants that, the Claimant having admitted to be co-author of the plagiarized Book and admitted that he was afforded the opportunity to make his defence in writing , the 1st Defendant has complied substantially with the provisions of section 15 of its enabling statute in finding the Claimant guilty of the allegation of plagiarism, and that the Claimant is therefore not entitled to the claims as he failed to establish how the 1st defendant’s letter dismissing him from office was illegal, null and void.

It was further argued that, whatever has been admitted need no proof referring to the case of Reptico SA Geneva V. Afribank Nig Plc (2013) LPELR 2006(SC) where it was held that, “It is trite that whatever is admitted needs no further proof. It is deemed established.” See also Mozie & Ors V. Mbamalu & Ors (2006) 12 SCM (Pt. 1) 306 at 317.

According to the Defendants, the Claimant emphasized during examination-in-chief that one of the authors of the plagiarized Book admitted responsibility and apologized for the offence, and that since he only proof read the book, gave the title and contributed financially to its publication he should be exonerated. It was therefore submitted by the Defendants that, if a book is co-authored all those involved it the publication take responsibility for the work, hence the Committee was right in finding the Claimant and his colleagues guilty of the allegation of plagiarism.

The Defendants referred to the case of Bamgboye V. University of Ilorin (1999) 10 NWLR (Pt. 6223) 290 at 333, where the apex court per Onu JSC held that: “By virtue of section 15(1) of the University of Ilorin Act, all that is necessary is that, (i) complaints must be brought to the notice of the person and (ii) he must be given an opportunity of making representation in person to council on the matter. In the instant case, the learned Chief Judge considered all the evidence before him, considered the allegations of the appellant on the incidents of fair hearing and the relevant laws of fair hearing and came to the inexorable conclusion, rightly in my view, that the appellant was given a fair hearing.”

It was therefore submitted that, since the facts of the case of Bamgboye V. University of Ilorin (supra) are the same with the facts of the Claimant’s case, the court should hold that from the plethora of evidence which showed that the complaint was brought to the notice of the Claimant and he was given ample opportunity of making representation in person, the 1st Defendant acted in accordance with the provisions of section 15 of its enabling Act in dismissing the Claimant from its services based on all the reports and recommendations of its various committees. That the 1st Defendant’s Council therefore rightly invoked the statutory powers given to it by the extant law.

The Defendants submitted finally on Issue one (1) that, the onus of proving that the dismissal of the Claimant by the Defendants was wrongful lies on the Claimant, and that the Claimant has failed in discharging this burden of proof. See College of Medicine University of Lagos V. Adegbite (1973) 5 SC, Abomeli V. NRC (1995) 1 NWLR (Pt. 372) 451 and Bamgboye V. University of Ilorin (supra).

On Issue two (2), the Defendants referred to both the 16th and 19 Reports and submitted that the 16th Report found the Claimant guilty of allegation of plagiarism and made recommendation to the Council. That the 1st Defendant’s Governing Council was in the circumstance not bound to follow the recommendations of its investigative committees in acting on the allegation of misconduct against the Claimant. See Bamgboye V. University of Ilorin (supra) at 331 where the court held thus:

“From the foregoing, I am not taken in by the appellant’s ingenious argument that the Court below should have held that the 1st Respondent that is, (University of Ilorin) was bound by the terms of Exhibit D3 which represented an act within the authority of its agent personified by 2nd respondent. This is because as the learned Chief Judge rightly and justifiably pointed out in his judgment which the Court below aptly affirmed: ‘…It is my view that no useful purpose other than fanciful academic peregrination would be served by invoking the aforesaid principle in the instant case. In my judgment the governing council is not bound to gloss over or rubber stamp a decision taken by one of its subordinate committees or by a staff, I am therefore unable to agree with the submission of Professor Jegede that the 1st Defendant is bound to re-instate the Plaintiff in accordance with Exhibit P3.”

According to the Defendants, the Council of the 1st Defendant has the final say irrespective of the recommendations of its subordinate committees and panels set up by the 1st Defendant.

The learned Defendants’ counsel finally urged the court to hold that section 15 of the University of Port Harcourt Act was substantially complied with in dismissing the Claimant, and the court should consequently dismiss the Claimant’s suit with substantial cost.

 

 

CLAIMANT’S SUBMISSIONS:

The Claimant distilled two (2) issues for the determination of this court, to wit:

  1. Whether the dismissal of the Claimant from the services of the 1st set of Defendants complied with the mandatory procedures in the Regulations Governing Conditions of Service, Section 15 of the University of Port Harcourt Act and the principle of fair hearing.

 

  1. Whether the dismissal of the clamant from the services of the 1st set of Defendant  is not unlawful having regards to the procedure adopted by the Defendants and the findings of the two standing committees of the University as contained in the University of Port Harcourt 16th Report of the S.S.D.C. to Council dated 9/10/2014 and in evidence as EXHIBIT CW1M1-CW1M113.

On issue one (1), it was submitted that, an employee whose employment is statutorily flavoured enjoys a special status over and above the regular master and servant relationship. Hence, for such an employee to be dismissed from his employment, the laid down procedure as contained in the Regulations and Conditions of Service and the enabling laws must be compulsorily complied with, and to do otherwise will be against good governance and the principle of fair hearing. See Olaniyan V. Unilag (1985) 2 NWLR (Pt. 9) 599 at 605; Iderima V. Rivers State Civil Service Commission (2005) 18 NWLR (Pt. 951) 378; F.C.S.C. V. Laoye (1989) 2 NWLR (Pt. 106) 652 at 714; Bamgboye & Anor V. Federal University of Agriculture Abeokuta decision of NICN in NICN/LA/371/13.

According to learned Claimant’s counsel, the law is settled that statutory provisions cannot be waived, relying on the case of Menakaya V. Menakaya (2001) 16 NWLR (Pt 738) 303.

The learned counsel to the Claimant reproduced the provisions of Regulation 3 paragraph 3.1(a) of the University of Port Harcourt Regulations Governing Staff Conditions of Service of July 1982 (exhibit CW1N1-CWIN174) and argued that by these provisions disciplinary measures against a senior staff on account of indiscipline, offence or misconduct at the University ought to start with the Dean or the Head of Department of the officer concerned issuing an official query, but that was not the case in the Claimant’s case.

That there is nothing in exhibit CW1M1-CW1M113 (The 16th Report of the Senior Staff Disciplinary Committee) to show that there was any petition or complaint against the Claimant, and that the Claimant was not issued any official query by the Head or Dean of his Faculty, hence the procedure was flagrantly breached or violated by the Defendants.

That it is only where the provisions of the Regulations have been complied with that the Vice Chancellor may act by either dismissing the report of the Head, issuing a formal warning, setting up investigation by a person or committee, or sending the report of the Head alongside the Staff’s representation and report of investigation if any to Appointment and Promotions Committee (APC). Learned counsel cited the case of U.A.C. Vs. Macfoy (1962) AC 152 on the submission that one cannot place something on nothing and expect it to stand.

That from the evidence before the court, the Claimant and his colleagues became aware of the allegations of plagiarism against them for the first time when they were invited by the Professional Ethics Committee of the 1st Defendant on the 18th of March, 2014 while interacting with the said Committee. That since there was no investigation at the Departmental or Faculty level of the 1st Defendant, and no report was transmitted to the Vice Chancellor from the Department or Faculty, the Vice Chancellor acted on nothing in setting up the Professional Ethics Committee whose exercise was in futility since the Senior Staff Disciplinary Committee cannot lawfully act on a flawed procedure. That where the law prescribes a special procedure for doing an act or enforcing a right, non-compliance with the stated procedure is incurably fatal to the enforcement of that right. See Dr. Arthur Nwankwo V. Alhaji Umaru Musa Yar’adua (2010) 12 N.W.L.R. (Pt. 1209) 518 at 559.

Learned Claimant’s counsel also cited the provisions of section 15 of the University of Port Harcourt Act, and submitted that for the said provisions to be said to have been complied with it must be shown that a prima facie case of misconduct has been established against the employee by following the mandatory procedure stipulated in Article 3 of the University Regulations (exhibit CW1N1-CW1N174). That the provisions of the 1st Defendant’s Act and the Regulations Governing Conditions of Service must be read together.

According to learned Claimant’s counsel, the case of Bamgboye V. University of Ilorin (supra) cited and relied upon by the learned Defendants’ counsel does not support the case of the Defendants because unlike the procedure adopted in the Claimant’s case, the investigation process or hearing in Bamgboye’s case started from the Departmental and Faculty level.

That from exhibit CW1M1-CW1M113 (the 16th Report), the Claimant was clearly deprived of an opportunity of making representations to the Council as mandatorily required by section 15 of the 1st Defendant’s Act. That the Council’s responsibility cannot be delegated to anybody whether the Senior Staff Disciplinary Committee or the Appointment and Promotions Committee as argued by the Defendants counsel in their Final Written Address. That the disregard of the procedure in disciplining a senior staff and the re-delegation of that function to the Professional Ethics Committee and the Senior Staff Disciplinary Committee in the Claimant’s case runs contrary to the provisions of 1st Defendant’s Act and Regulations, and also the legal maxim of delegates non potest delegare thereby breaching the Claimant’s fundamental right of fair hearing consequently making his dismissal void. See Okafor V. Anambra State (1991) 6 NWLR (Pt. 200) 659, Ariori V. Elemo (1983) 1 SC 13, Ikpeazu V. Ottih (2016) 8 NWLR (Pt. 1513) 38 at 39, O.S.I.E.C. V. AC (2010) 19 NWLR (Pt. 1226) 339.

The learned Claimant’s counsel therefore urged the court to hold on this issue that from the totality of the evidence before the court, the mandatory procedures in the Regulations Governing Conditions of Service and section 15 of the 1st Defendant’s Act were not complied with in reaching the decision to dismiss the Claimant from service.

On Issue two (2) it was submitted that, the dismissal of the Claimant from the services of the 1st Defendant is unlawful, null and void and of not effect in view of the findings of both the Professional Ethics Committee and the Senior Staff Disciplinary Committee who considered the matter.

That a review of the evidence before the court and the findings on the records of both the Professional Ethics Committee and the Senior Staff Disciplinary Committee of the 1st Defendant shows that the Claimant did not contribute a word to the book, and that one Dr. B. M. Nwibere admitted to have personally authored the chapter of the book in contention and pleaded for leniency as can be seen in exhibit CW1M1 – CW1M113, thereby exonerating the Claimant from the allegation of plagiarism. That apart from the admission of authorship of the contentious chapter by Dr. B. M. Nwibere, the Claimant also tendered exhibit CW1D1-CW1D290 whose chapter 13 shows a verbatim reproduction of the contentious chapter with the same title. That the Claimant is neither listed as a co-author, nor is there anything in the 16th Report to show that an investigation was extended to exhibit CW1D1-CW1D290 and its authors even when the Claimant presented the book to the various committees.

That the aspect of the plagiarized material were also discovered in another book co-authored by Prof. Don M. Baridam and Dr. B. M. Nwibere but Dr. Baridam was not found culpable because of Dr. Nwibere’s admission of responsibility of authorship of that book. That during cross-examination DW was confronted with exhibit CW1M1-CW1M113 (the 16th Report) and he admitted that one Dr. B. M. Nwibere admitted sole responsibility for the plagiarized chapter of the book before both the Senior Staff Disciplinary Committee and the Professional Ethics Committee at the meeting of 18th March, 2014 and pleaded for leniency.

That the dismissal of the Claimant on grounds of plagiarism is unlawful, null and void because the same committee that recommended the dismissal of the Claimant despite his unchallenged innocence also somersaulted and turned around to make recommendations for the reinstatement/recall to duty of the Claimant as shown in exhibit DW1 (the 19th Report), and that by exhibit DW1 there is a standing policy of the Appointment and Promotions Committee of the 1st Defendant that where an allegation of plagiarism is made against a co-author of a book, the lead author should be held responsible. That curiously that standing policy was not applied in the Claimant’s case even when the lead author Dr. B. M. Nwibere admitted to have single handedly written the chapter in question, the various committees discovered in their findings that the claimant did not even contribute a word to the book and the said material was published by Dr. Nwibere in other books different from the book that he co-authored with the Claimant.

The learned Claimant’s counsel therefore urged the court to hold that the dismissal of the Claimant is unlawful, null and void as the Claimant’s dismissal did not follow the standing policy of the Appointment and Promotion Committee relating to co-authorship, the Regulations and the procedure stipulated in section 15 of the University of Port Harcourt Act, and to grant all the prayers or reliefs being sought by the Claimant in this suit.

On the Reply on Points of Law filed by the Defendants, it was argued by the learned Claimant’s counsel while adumbrating that, the points canvassed therein were not pleaded by the Defendants and that the Defendants only used the opportunity to re-open their case before the court. That since Reply on Points of Law is not an opportunity for a party to re-open his case, the court should discountenance the Defendant’s Reply on Points of Law as the points raised therein were not even canvassed by the Claimant in his Final Written Address. See Clifford Osuji V. Nkemjika (2009) 6 – 7 S.C. (Pt. 11) 91, Harka Air Services Ltd V. Keazor (2011) 6 – 7 S.C. (Pt. 11) 1, Alhaji Atiku Abubakar & Ors. V. Alhaji Umaru Musa Yar’adua & Ors (2008) 12 S.C. (Pt. 11) 1, Dr. Augustine Mozie V. Chike Mbamalu & Ors (2006) 7 SCNJ 411.

DEFENDANTS’ REPLY ON POINTS OF LAW:

It is pertinent to state that the Defendants filed a Reply on Points of Law on 23rd October, 2018. It was submitted by the learned counsel to the Defendants that, since the Claimant did not plead the issue of fair hearing in his pleadings, he cannot now raise same in his Final Written Address as counsel’s Address cannot take the place of pleadings and evidence. See Onwuka V. Omogui (1992) 3 NWLR (Pt. 230) 393.

Learned counsel reproduced the provisions of section 15 of the University of Port Harcourt Act, and also relying on the case of Bamgboye V. University of Ilorin (supra), and submitted that since by paragraphs 14, 15 and 16 of the Claimant’s Statement of Facts he stated that he was by a memorandum of 24th March, 2014 invited to appear before the 2nd set of defendants, and also that he was requested to make his appearance on 3rd of April 2014, and thirdly that he was again directed to appear before the Senior Staff Disciplinary Committee based on the report of the 2nd set of defendants, the Claimant was given the opportunity to defend himself both orally and in writing thereby given him fair hearing. That since the Regulations Governing Conditions of Service in the 1st Defendant is made subject to section 15 of the 1st Defendant’s Act, the said section 15 of the 1st Defendant’s Act is made to override whatever that follows in the Regulations. See Labiyi V. Aretiola (1992) 8 NWLR (Pt. 258) 139 at 163.

On the Claimant’s submission that the statutory powers of the 1st Defendant’s Governing Council cannot be delegated to anybody such as the Senior Staff Disciplinary Committee and the Appointment and Promotions Committee, the learned counsel to the Defendants referred the court to section 21 of the 1st Defendant’s Act on the submission that such statutory powers of the Governing Council can be delegated.

On the Claimant’s submission that since Dr. B. M. Nwibere allegedly admitted to have plagiarized the book in question, it was argued that the said co-author or lead author of the plagiarized book did not admit to have authored the plagiarized book but he rather introduced different dates to show that he was not the author of the one he was being accused to have plagiarized. That the Claimant should have called Dr. Nwibere as a witness in this suit to confirm the extent of his culpability but he did not because if he had called Dr. Nwibere his evidence would have been unfavourable to the Claimant. See Ezedukwa V. Maduka (1997) 8 NWLR (Pt. 518) 667-668.

That contrary to the Claimant’s assertion, while he participated in proof reading the entire plagiarized book, contributed money for its publication and benefited from the proceed of the book and also used the book as part of his promotional evidence, in the case of Prof. Don Baridon his name was fraudulently used by Dr. Nwibere without the knowledge of Prof. Don Baridon.

Regarding the Claimant’s submission that the Defendant’s Reply on Points of Law only raised fresh issues not canvassed by the Claimant, it was argued that the Defendants only addressed fresh issues raised by the Claimant in his Final Written Address, and the court should therefore disregard their submissions and place reliance on the Reply on Points of Law.

The court is therefore being urged to dismiss this suit against the Defendants with substantial cost.

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, I am of the view that this one Issue is to be determined in this suit, to wit:

Whether the Claimant has proved that his dismissal from the employment of the 1st Defendant was wrongful and unlawful to entitle him to the reliefs being sought in this suit.

 

May I start by stating that the issue of the Claimant’s employment with the 1st Defendant is not in doubt in this suit. The Claimant pleaded in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Facts, facts relating to his employment with the Defendant and the terms and conditions governing the said employment. The Claimant equally tendered Exhibits CW1A, CW1B, CW1E, CW1F and CW1G to further establish the employment relationship between him and the 1st Defendant.

These facts relating to the claimant being an employee of the 1st Defendant were admitted by the Defendants in paragraphs 1, 2 and 3 of the Statement of Defence filed by the Defendants in this suit.

 

According to the Claimant as pleaded in paragraphs 8, 9 and 10 of the Statement of Facts, his employment with the 1st Defendant is regulated by statute, to wit: the University of Port Harcourt Act Cap. U13, Vol. 15 LFN 2004 as well as the 1st Defendant’s Regulations Governing Staff Conditions of Service which make provisions for discipline of a senior staff of the 1st Defendant for acts of misconduct. These facts were also admitted by the Defendants in paragraph 2 of the Statement of Defence.

 

The Claimant has argued that his employment with the 1st Defendant is statutorily flavoured thereby making it to enjoy a special status over and above the regular master and servant relationship. I cannot agree more with the learned Claimant’s counsel on this. From the reliefs being sought by the Claimant in this suit and the facts of his case, it crystal clear that the Claimant’s employment with the 1st Defendant has statutory coloration.

 

It is the law that the question of whether a contract of employment is regulated or governed by statute or not depends on the construction of the contract itself or the relevant statute. See RAJI vs. UNIVERISTY OF ILORIN (2008) All FWLR (Pt. 435) 1832, and decision of Hon. Justice O. Y. Anuwe in Prof. Peter O. M. Nnabuo V. University of Port Harcourt & 3 Others (unreported) Suit No. NICN/OW/27/2014 delivered on 9th January, 2017.

 

With regard to this case, the Claimant has referred to the University of Port Harcourt Act and the University of Port Harcourt Regulations Governing Staff Conditions of Service of July 1982 as making his employment a statutorily flavoured one. Having examined the said Act, it is noted that while section 1 of the Act establishes the 1st Defendant with powers to sue and be sued in its corporate name, section 16 of the Act provides for the procedure required to be taken for the removal of academic, administrative and professional staff from the services of the 1st Defendant.

 

I have however observed that, both counsel in this suit cited section 15 of the 1st Defendant’s Act rather than section 16 of the said Act. Section 15 of the 1st Defendant’s Act relates to the removal from office of certain members of the 1st Defendant’s Council.

 

For the purpose of this judgment and for clarity, section 16 of the 1st Defendant’s Act is hereby reproduced:

 

“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.

 

The provisions of the Regulations Governing Staff Conditions of Service, July, 1982 which is in evidence as Exhibit CW1N1 – CWIN174 at pages 12 – 13 provides as follows regarding removal and discipline of senior staff:

 

“(a) Without prejudice to the provisions of section 15 of the University of Port Harcourt Act (See Appendix VII), if a Head has reason to believe that disciplinary action should be taken against a senior member of his staff on account of any act of indiscipline, offence against regulations or misconduct, the Head shall communicate the reasons in writing to the member of staff concerned and request him to answer in writing to any charges against him. Thereafter the Head shall report the matter in writing to the Vice-Chancellor giving particulars of the alleged act of indiscipline, offence against regulations or misconduct as well as the reply (if any) of the person concerned to the charges against him, and the recommendations of the Head.

(b) The Vice-Chancellor after considering the report may

(i) dismiss the charges against the member of staff;

(ii) direct that the person be given a formal warning in writing;

(iii) cause the matter to be investigated by a person or committee appointed by the vice-chancellor and afford the member of staff in question opportunity to make representation in person to the person or committee investigating the matter.

(iv) send the report of the Head together with the representations by the member of staff as well as the report of such investigations, if any, which the vice-chancellor might have caused to be carried out, to the appropriate Appointments and Promotions Committee.

(c) The Appointments and Promotions Committee after considering the report may:

(i) dismiss the charges against the member of staff;

(ii) direct that the person be given a formal warning in writing;

(iii) impose such disciplinary measures including reprimand, withholding of salary increment, demotion, suspension on such terms as may be specified, or termination of appointment, as it considers appropriate.

(d) A member of staff against whom disciplinary measures have been imposed by an Appointments and Promotions Committee may appeal the decision of the Committee through the Vice-Chancellor either

(i) to the appropriate Appointments and Promotions Committee to reconsider the matter on grounds of additional information not previously available to the Committee; or

(ii) to the Council.

(e) The provisions of section 15 of the University of Port Harcourt Act (See Appendix VII) shall apply in cases of gross misconduct by a member of the Senior Staff.”

 

May I at this juncture state that, the procedure provided in the Act and the Regulation reproduced above relate to disciplinary action against any academic, administrative or professional staff of the 1st Defendant before such a staff can be removed from office. The procedure has therefore become part of the conditions of service in the employment of academic or administrative or professional staff of the 1st Defendant.

That being the case, such terms and conditions of service having been specifically provided for in statute and/or Regulations have made the said employment one with statutory flavor thereby making it difficult to remove such a staff unless the provisions of the statute or Regulations is strictly followed or complied with. See 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.

 

Since I have held elsewhere in this Judgment that the Claimant’s employment with the 1st Defendant is statutorily flavoured, it therefore follows that for the Claimant’s dismissal to stand, the provisions of the Act and/or the Regulations must be seen to have been strictly complied with by the Defendants. This therefore places a burden on the Claimant to establish that the Defendants failed to comply with the procedure provided in the law for his removal from office.

 

The facts of this case have been analysed earlier in this judgment. Suffice it to state that, according to the Claimant he was a senior academic staff of the 1st Defendant until sometimes on the 17th of April, 2015 when he was served with a letter dated 1st April, 2015 dismissing him from the service of the 1st Defendant with effect from 13th February, 2015. The said dismissal letter is in evidence as Exhibit CW1J. The grouse of the Claimant before the court is that the Defendants did not follow the procedure provided for in the 1st Defendant’s statute and Regulation before dismissing him from the service, and also that he was not given fair hearing by the Defendants.

The Defendants on the other hand have pleaded that the procedures enshrined in both the 1st Defendant’s statute and Regulations were duly followed and observed in the disciplinary proceedings against the Claimant which eventually led to his dismissal from the services of the 1st Defendant.

 

The law is now well settled that a party who alleges that his dismissal was unlawful must plead and establish 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.

This is clearly in line with the provisions of sections 131, 132 and 133 of the Evidence Act, 2011.

See Raphael Ogumka V. Corporate Affairs Commission (2010) LPELR-4891(CA) where the appellate court 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.”

May I now evaluate the evidence adduced by the parties in this suit.

 

The Claimant informed this court in his evidence-in-chief that, himself and two of his other colleagues in the 1st Defendant’s employment (Dr. B.M. Nwibere and Dr. B. C. Emecheta) collaborated and authored the book titled, “Management : An Integrated Approach” published in 2009.  This Book is in evidence as Exhibit CW1C1-CW1C422. According to the Claimant his only contribution to the said academic text was in the proof reading of chapter two on “the evolution of Management Thought” and Chapter seven on “Organisational Planning and Goal Setting” as well as giving the book its title “Management: An Integrated Approach.

That in March, 2014, he was invited vide memo dated 24th March, 2014 to appear before the 2nd and 3rd Defendants in respect of allegation of plagiarism and fake certificate against Dr. B. C. Emecheta on the 8th of April, 2014. That on the 31st of March, 2014 he was further requested to appear on the 3rd of April, 2014, and when he appeared before the 2nd and 3rd Defendants he discovered that in the invitations extended to B. C. Emecheta, B. M. Nwibere and Professor Don Baridam, his name was included in the allegations of plagiarism.

 

That even though they protested as there was neither a petition nor petitioner in respect of the complaint, they were directed to appear before the 4th and 5th Defendants on the 16th of July, 2014. Copy of the Invitation is in evidence as exhibit CW1H.

According to the Claimant, except the contents of the invitation (exhibit CW1H), the facts of the allegations were not made known to him in writing until when he appeared before the 3rd and 4th Defendants where the Chairman of the Senior Staff Disciplinary Committee directed that a copy of the petition and the alleged plagiarized material be made available to him. That the allegation of plagiarism is in respect of the lifting and reproduction of an Article in the Nigerian Academy of Management Journal Vol. 2. Number 2, June, 2008 titled “Business Ethics: A panacea for Sustainable Development in Nigeria authored by Messrs Oghene/G.O. Yomere (exhibit CW1P1-CW1P12) which was found at pages 88-93 of Exhibit CW1C1-CW1C422.

That even though Dr. B.M. Nwibere admitted to have been responsible for the plagiarized portion of the book, he was still dismissed by the Defendants vide exhibit CW1J. That he appealed against his dismissal to the 1st Defendant’s Council Appeal Committee vide exhibit CW1Q1-CW1Q4 but same was ignored.

 

The Claimant also tendered the 1st Defendant’s Regulations (exhibit CW1N1-CWIN174), the 16th Report of the Senior Staff Disciplinary Committee (SSDC) which was admitted as exhibit CW1M1-CW1M113 and a Book titled “Business & Environment” co-authored by B. M. Nwibere, B. C. Emecheta, J. E. O. Oshi, Y. T. Eniola and G. O. Worlu which was admitted as exhibit CW1D1-CW1D290.  The letter suspending the Claimant from duty is in evidence as exhibit CW1K. The 19th Report of the Senior Staff Disciplinary Committee (SSDC) of the 1st Defendant was however admitted through the Defendants’ witness as exhibit DW1.

 

During cross-examination, the Claimant maintained that, even though he did not contribute a word to the book exhibit CW1C1-CW1C422, he however proof read the book and also gave it the title. That when the plagiarized book was discovered, he was asked to appear before a committee which took written and oral submissions and whose recommendations led to his dismissal from the services of the 1st Defendant.

 

The Defendant’s sole witness Michael Dike however informed the court during examination –in- chief that, the Claimant who co-authored exhibit CW1C1-CW1C422 with his colleagues and admitted to have proof read, titled and contributed to the funding of the book cannot claim ignorance of the acts of plagiarism, and that the Defendants complied with the procedure as outlined in both the 1st Defendant’s statute and Regulations before dismissing the Claimant from service. The Defendant however did not tender any document in evidence in this suit.

 

During cross-examination, DW informed the court that, all that transpired concerning the Claimant’s dismissal is contained in the 16th Report (Exhibit CW1M1-CW1M113) which was taken to the 1st Defendant’s Council, and that before both the Professional Ethics Committee and the Senior Staff Disciplinary Committee one Dr. Nwibere admitted to have been solely responsible for the plagiarized material and pleaded for leniency. That the said Dr, Nwibere had earlier published the same contents in an earlier book. The witness who insisted that there was a petition and a petitioner against the Claimant, however could neither mention the name of the petitioner nor show the court copy of the petition written against the Claimant.

That the 19th Report (Exhibit DW1) exonerated the Claimant and recommended that he should be recalled to the 1st Defendant’s employment.

 

May I at this point state that by the provision of Section 16 (1) of the University of Port Harcourt Act already reproduced earlier 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 Claimant 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.

 

It is therefore clear from the provisions of section 16 of the 1st Defendant’s Act that, the procedure for the removal of an academic, administrative and professional staff of the 1st Defendant other than the Vice-Chancellor is to be initiated or commenced by the Council of the 1st Defendant and terminated or concluded by the same Council of the 1st Defendant.

 

The Claimant and the Defendants have in their pleadings, evidence as well as written submissions before the court expended so much energy in trying to prove the culpability or otherwise of the Claimant with respect to the allegation of plagiarism leveled against the Claimant which led to the disciplinary proceedings against him and his resultant dismissal from the services of the Defendant. It must be pointed out that, the case before me is neither a criminal trial of any criminal allegation nor am I to determine whether or not the Claimant was culpable of the allegation of plagiarism. Being a labour court, the task before me is to determine whether the Defendants duly followed the procedures provided in the 1st Defendant’s Statute/Regulations before dismissing the Claimant from service. And that is exactly what I am aiming to achieve in this judgment.

 

It is clear as can be gleaned from the letter of dismissal (exhibit CW1J) that the Claimant was dismissed on the authority of the 1st Defendant’s Council. The said exhibit CW1J is reproduced below for clarity:

 

1st April, 2015

UPH/2005/2750

 

Dr. John E. Chikwe,

Department of Management,

Faculty of Management Sciences,

University of Port Harcourt,

Port Harcourt.

 

Dear Dr. Chikwe,

 

DISMISSAL FROM SERVICE

At its 148th Meeting held on Thursday, 12th March, 2015, the Governing Council of the University of Port Harcourt considered the 16th Report of the Senior Staff Disciplinary Committee (SSDC), which found you guilty of plagiarizing, pages 15, 16 and 17 of the Nigerian Academy of Management Journal, Vol.2, No. 2 of June, 2008, (pages 88. 89, 92 and 93) of the book co-authored by you and two others, titled: Management: An Integrated Approach.

 

After due deliberation on the matter, Council decided that:

 

YOU BE DISMISSED FROM THE SERVICES OF THE UNIVERSITY OF PORT HARCOURT FOR PLAGIARISM, WITH EFFECT FROM 13TH FEBRUARY, 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

It is noted from exhibit CW1J reproduced above that, the dismissal of the Claimant from the services of the 1st Defendant was based on the consideration of the 16th Report of the Senior Staff Disciplinary Committee (SSDC) (exhibit CW1M1-CW1M113).

 

I have gone through the said 16th Report (exhibit CW1M1-CW1M113) and it is clear that the disciplinary proceedings were not initiated or commenced by the Governing Council of the 1st Defendant nor has it been shown anywhere that the Governing Council authorized the initiation of the investigation of the Claimant. In fact, at page 5 of the said 16th Report of the SSDC (exhibit CW1M1-CW1M113), it was clearly stated that, the Professional Ethics Committee which commenced or initiated the disciplinary proceedings acted on the instructions/directives of the Vice-Chancellor and forwarded its Report to the Vice-Chancellor before the 81st Principal Officers Meeting of the 1st Defendant decided to forward the said Report to the SSDC for further investigation.

 

Now do either the 2nd and 3rd Defendants or even the Vice-Chancellor of the 1st Defendant have the authority to initiate disciplinary proceeding against an academic, administrative or professional staff of the 1st Defendant without clear authorization of the 1st Defendant’s Council? I do not think so going by the stipulations of section 16 of the 1st Defendant’s Act. The learned counsel to the Defendants Chief K. C. Ehiogu Esq has submitted and rightly so, that since the Claimant’s employment is one with statutory flavor, before he can be said to be dismissed from his employment the provisions of the enabling statute of the institution must be followed. I cannot agree more with the learned Defendants’ counsel on this.

 

It is also noted that, as at when the disciplinary proceedings against the Claimant was commenced, there was neither a petition nor an allegation to the Council of the 1st Defendant whose disciplinary powers over academic, administrative and professional staff of the 1st Defendant is statutory.

 

If there was therefore no petition or any allegation before the Council, how then could it have appeared to the Council that there were reasons for believing that the Claimant should be removed from his office on the ground of misconduct?

 

It is therefore clear from Exhibit CW1J that, the 1st Defendant’s Council only got involved in the matter when the 16th Report of the SSDC was tabled before it at its 148th Meeting held on 12th March, 2015 wherein the Council deliberated on the said Report and decided that the Claimant should be dismissed from service.

 

There is nothing before me to show that the 1st Defendant’s Council gave the Claimant notice of the reasons why he should be removed from office or afford the Claimant an opportunity of making representations to the Council or that either the Professional Ethics Committee or the Senior Staff Disciplinary Committee which investigated the allegations against the Claimant was constituted by the 1st Defendant’s Governing Council in accordance with section 16(1)(a)(b) and (c) of the 1st Defendant’s enabling Act.

 

The Claimant is contending that he was not given fair hearing before both the

Professional Ethics Committee and the Senior Staff Disciplinary Committee which separately investigated the matter against the Claimant and found the allegations of plagiarism to be true. Even though from exhibits CW1H, CW1Q1-CW1Q4 and CW1M1-CW1M113, it is clear that the Claimant was aware of the allegations against him, and he made both oral and written representations to these Committees, I do not think by not inviting the Claimant to appear before the Council and defend himself he was given fair hearing in the circumstance of this case.

 

The Defendants clearly failed to comply with the disciplinary procedures stipulated in section 16 of the University of Port Harcourt Act before dismissing the Claimant from service. The Claimant’s employment with the 1st Defendant is not a mere master/servant relationship, but a statutorily coloured one which confers on the Claimant a special status of which the provisions of the statute governing his employment must be strictly complied with before his removal from service can be sustained.

 

Since the Claimant was neither given any opportunity of appearing before the 1st Defendant’s Council nor did he appeared before any committee established by the said Council for the purpose of exculpating himself, I am of the considered view that the Defendants did not comply with section 16(1) of the University of Port Harcourt Act. I so find and hold.

 

In the case of Oloruntoba-Oju and Others V. Abdul-Raheem and Others (2009) LPELR-2596(SC) the apex court considered section 15(1) of the University of Ilorin Act which is in pari materia with section 16(1) of the University of Port Harcourt Act, and held as follows per Adekeye, J.S.C.:

 

“Section 15(1) of the University Act and regulation 3.4.0. of the Senior Staff Regulations contains the same provisions. Section 15(1) of Cap 455 provides as follows:

“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 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 council so request within the period of one month beginning with the date of the notice to make arrangements:

  1. For a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council and; 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 direction of the council. The foregoing makes provision for fair hearing in the process of removing a member of the academic or administrative or professional staff of the University. I do not have evidence to substantiate that this process was adopted in relieving the appellants of their appointments. The pronouncements of our courts in their age long decisions down to the recent ones have advocated that “When an office or employment has a statutory flavor in the sense that its conditions of service are provided for by the statute or regulations made there under any person in that office or employment enjoys 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. When a statute has conferred on anybody the power to make decisions affecting individual, the court will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. 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. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision. There is a presumption that when the Legislature confers a power on an authority to make a determination it intends that the power shall be exercised judicially in accordance with the rules of natural justice.”

 

The learned Defendants’ counsel has placed heavy reliance on the case of Bamgboye V. University of Ilorin (supra) on the argument that the 1st Defendant’s Council rightly invoked its statutory powers in dismissing the Claimant from service. I have gone through the case of Bamgboye V. Unilorin and it can be seen that after the allegations against Dr. Bamgboye had been considered by the various Investigative Committees, on 18th November, 1988, he was invited to appear before the Governing Council of the University of Ilorin to defend himself of the allegations leveled against him which he did on the 21st of November, 1988. It was on the basis of this that the apex court affirmed the decisions of both the appellate court and the trial court that the appellant was given fair hearing by the Council of the University of Ilorin before removing him from service. Is that the position in the instant case? I do not think so. There is no evidence before me documentary or otherwise that the Claimant was invited to appear before the Governing Council of the 1st Defendant or even given the opportunity of making representations to the 1st Defendant’s Council before his dismissal from service as required by the first Defendant’s enabling statute.

 

Section 5 of the 1st Defendant’s enabling Act lists the following as members of the Council of the 1st Defendant:

  1. The Pro-Chancellor;
  2.  The Vice-Chancellor;
  3. The Deputy Vice-Chancellors;
  4. One person from the Ministry responsible for education;
  5. Nine persons representing a variety of interests and broadly representative of the whole Federation to be appointed by the President;
  6. Four persons appointed by the Senate from among its members;
  7. Two persons appointed by the Congregation from among its members;
  8. One person appointed by Convocation from among its members.

 

My I state that, it is correct as submitted by the learned Defendants’ counsel that, all persons who participate in the co-authorship of a text are collectively responsible for the contents and that the allegation against the Claimant being one relating to plagiarism is a serious allegation particularly in an academic environment; and also that the Governing Council of a University is not bound to follow the recommendations of its investigative committees. In fact, I am of the opinion that an academic environment as the 1st Defendant in this suit is not a place for lazy people and copycats. The academic environment being a place of research and innovation, an academic staff or lecturer who only engages in copying other peoples’ works is a disgrace to the system and not fit to remain in the system. Such a lazy lecturer if allowed to remain in the system will not only pollute the academic environment but will only end up producing his or her type thereby impacting negatively on the general society.

But to sanitise the academic environment by removing such persons, we must not lose sight of the legal requirements that must be followed before such a staff is removed from the academic environment.

Such legal requirements are as provided in section 16 of the University of Port Harcourt Act which in my considered view the Defendants did not follow before removing the Claimant from the service of the 1st Defendant.

 

Having therefore reviewed the Claimant’s case, I am satisfied that he has established his case to be entitled to the reliefs being sought from this court. I therefore find that the dismissal of the Claimant from the 1st Defendant’s service did not comply with the procedure for dismissal as laid down in the Act. Consequently, the dismissal of the Claimant from the 1st Defendant’s employment is illegal, unlawful, null and void and ought to be set aside.

 

The sole Issue distilled for determination is therefore resolved in favour of the Claimant.

 

The law is settled that, in an employment with statutory flavor where it is held that the employee was illegally removed from office, the result is that the employee is deemed never to have been removed from office and is therefore entitled to reinstatement and payment of his outstanding salaries.

See Mallam Mohammed M. Alhassan V. Ahmadu Bello University, Zaria & Ors (2009) LPELR-8138(CA).

 

Consequently, the court grants all the reliefs claimed by the Claimant in this suit, and hereby makes the following orders:

 

  1. The Report and/or Recommendation of both the Professional Ethics Committee and the Findings and/or Conclusion of the Senior Staff Disciplinary Committee concerning the Claimant and its adoption by the Council of the 1st Defendant are hereby set aside.

 

  1.  The dismissal of the Claimant from the employment of the 1st Defendant vide letter dated 1st April, 2015 (exhibit CW1J) is hereby set aside, having been declared to be illegal, unlawful, null and void.

 

  1. The Claimant is by this judgment reinstated to his employment in the 1st Defendant on the status/rank and level he occupied as at when he was dismissed from the services of the 1st Defendant.

 

  1. The Defendants are by this judgment ordered to pay to the Claimant all his outstanding wages, salaries, allowances and other emoluments accruing to him from the date of the unlawful/illegal dismissal up to the date of this judgment.
  2. Cost of N300, 000.00 (Three Hundred Thousand Naira Only) is hereby awarded to the Claimant.

 

  1. The terms of this judgment shall be complied with not later than 30 days from the date of delivery.

 

Judgment is entered accordingly.

 

 

 

Hon. Justice P. I. Hamman

 

Judge

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