Dr. Uche Basil Onwe -VS- Academic Staff Union of Universities & Or.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 3rdDecember 2018 SUIT NO. NICN/ABK/04/2018

BETWEEN

UCHE BASIL ONWE … CLAIMANT

AND

ACADEMIC STAFF UNION OF UNIVERSITIES]
PROF. BIODUN OGUNYEMI ]… DEFENDANTS

REPRESENTATION:

Chukwuma Mgbada Esq. for the Claimant

Femi Adedeji Esq. for the Defendants.

JUDGMENT

The Claimant by originating summons dated 3rdAugust 2018 and filed on 31st August 2018the Claimant raised three questions for the determination of this Court, namely:

Whether the Plaintiff was given fair hearing by the Defendants before his purported removal from office as ASUU Chairperson, EBSU Chapter in view of the fact that no notice and report of the allegation of corrupt practices was served on him to enable him know the case against him so as to defend himself, having regard to Appendix 1, section 9, the Constitution and Code of Practice of the Academic Staff Union of Universities, section 4[d][i] of Appendix 1, the constitution and code of practice of ASUU, section 5[i], iv, v of Appendix 1 of the constitution and code of practice, section 36[6][b] [c] [d] FRN 1999 as amended.

Whether the Defendants followed due process in the removal of the Plaintiff as Chairperson [EBSU Chapter] having regard to Appendix 1, section 5 iv and v of the constitution and code of practice of the Academic Staff Union of Universities.

Whether the Defendants did not act ultra vires when it arrogated itself the power of purported criminal investigation of the alleged crime of corrupt practices against the Plaintiff instead of making report to the appropriate criminal investigation authority having regard to Appendix 1, section 9, the constitution and code of practice of the Academic Staff Union of Universities, sections 4 and 10 of Police Powers Act, Laws of the Federation of Nigeria, 2010.

And claimed against the Defendants as follows:

[a]. A declaration that the Defendants acted in breach of fair hearing when they purportedly removed the Plaintiff from office as ASUU Chairperson [EBSU Chapter] without serving him notice of the allegation of corrupt practices leveled against him as well as forum to defend himself.

[b]. A declaration that the Defendants did not follow proper procedure in the purported removal of the Plaintiff from the office aforesaid.

[c]. A declaration that the Defendants acted ultra vires when it arrogated to itself the power of criminal investigation of the alleged crime of corrupt practices leveled against the Plaintiff instead of reporting same to the appropriate criminal investigating authorities.

[d]. General damages of two million naira [N2, 000,000] for the psychological trauma, ill reputation and loss of good standing suffered by the Plaintiff owing to the wrongful actions and conducts in the unwarranted removal of the Plaintiff from office.

The Claimant filed with the originating summons an affidavit with six supporting exhibits marked exhibits CN1 to CN6 and a written address dated 3rd August 2018. After receipt of the originating summons, the Defendants filed a conditional memorandum of appearance, a counter affidavit to which they attached three exhibits marked exhibits A, B and Cand a written address dated 19th October 2018. In response, the Claimant filed a further affidavit and reply on point of law on 30th October 2018. The originating summons was heard on 31stOctober 2018 and the case was thereafter set down for judgment.

COURT’S DECISION

I have considered the processes filed in this suit and oral submissions of learned Counsel for the parties. The law is now settled that in civil cases the burden of proof is on the Claimant who assertsthe positive of any fact. See sections 131[1] and 133[1] of the Evidence Act 2011 and Alhaji Ganiyu M. B. Iseogbekun& Anor. v. Alhaji SikiruGberigiAdelakun&Ors. [2013] All FWLR [pt.664] 168 at 188D-E. It is also the law that the Claimant who seeks declaratory reliefs has the onerous burden of establishing his entitlement to the reliefs. Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Isiyaku Musa Jikantoro& 6Ors. v. Alhaji HaliruDantoro& 6Ors. [2004] 5 SC [pt.11] 1 at 15, Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27 and Yakubu Wondo& 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claims and cannot rely on the mere admission of the Defendants or absence of defence. See Dr. Kenneth Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] at page 25.The facts of this case are simple. The Claimant was the Chairperson of the 1st Defendant’s Ebonyi State University Chapter. On 18th July 2017, one Dr. Dabwor T. Dalis of the University of Jos wrote a petition against the Claimant to the Chairman of 1st Defendant’s University of Jos Chapter for intellectual plagiarism. The petition was endorsed to the 2nd Defendant on 21st July 2017 who directed the Zonal Coordinator of ASUU Owerri Zone to handle with the Zonal Coordinator Calabar Zone and the Treasurer and revert to the Association. The Zonal Coordinator Calabar Zone forwarded the petition to the Claimant with instruction to respond to the allegation and meet the Committee on 22nd July 2017. Rather than submit a proper response, the Claimant wrote on the petition and forwarded it to the Zonal Coordinator Calabar Zone. By the Claimant’s account, he attended the National Executive Council meeting of the 1st Defendant at Nasarawa State University. After the meeting, as he was walking back to his hotel room a member of the NEC accosted him and told him “that he heard that I was petitioned for plagiarizing a work belonging to one Dr. Dabwor T. Dalis”. It was at that point he recalled that a minute on the petition required him to meet a committee which members were not disclosed and that the petition was not discussed on 22nd July 2017. He stated that no allegations of corrupt practices or plagiarism was made against him by NEC or any other National organ of the 1st Defendant or was ever discussed by any committee or group of persons constituted by the 1st Defendant from 22nd July 2017 till he was wrongfully and forcefully removed from office on 4th March 2018. The Defendants countered the Claimant’s evidence and insisted that the investigating committee indicted him and recommended for his removal from office as Chairperson of ASUU Ebonyi State University.

The Claimants raised three issues for determination. Issue one is whether the Claimantwas given fair hearing by the Defendants before his purported removal from office as ASUU Chairperson [EBSU Chapter] in view of the fact that no notice or report of allegation of corrupt practices was served on him? Issue two is whether the Defendants followed due procedure or process in the purported removal of the plaintiff as Chairperson ASUU [EBSU Chapter]? Thirdly, whether the Defendants did not act ultra vires when it arrogated to itself the power of criminal investigation of the alleged crime of corrupt practices against the Plaintiff instead of making report to the appropriate criminal investigating authorities?On issue one, the Claimant argued that he was not given a fair hearing before his purported removal from office. Relying on Appendix 1, section 4[d][i] of the constitution and code of practice of Academic Staff Union of Universities, he contended that the manner of his removal fell short of this provision. He explained that no notice of corrupt practice was served on him and no hearing of any allegation against him took place. He submitted that for a hearing to be fair, the Claimant must have prior and adequate notice of the particulars of the allegations against him and relied on section 36[4] of the Constitution of the Federal Republic of Nigeria 1999 and the cases of F.C.S.C. v. Laoye [1982] 2 NWLR [pt.106] 652 and Aiyetan v. NIFOR [1987] 3 NWLR [pt.59] 48. He further contended that there is no report published by any committee indicting him to warrant his removal from office and that the mere fact that he was informed of the petition against him is not sufficient enough to ground adequate notice of same and relied on Garba v. University of Maiduguri [1986] 1 NWLR 550 and urged the Court to resolve issue one in his favour. In their response to issue one, the Defendants contended that the onus of proof that the Defendants acted in breach of the rules of fair hearing lies on the Claimant, which burden he has not discharged. Referring to Appendix 1, section 4[d][i] of the constitution and code of practice of Academic Staff Union of Universities, the Defendants argued that they complied with the three cardinal principles of fair treatment or fair hearing in that section. It was argued that exhibit CN1 is clear proof of notice of the allegation of plagiarism made against the Claimant by a member of the 1st Defendant. On the issue of hearing, learned Counsel explained that on the face of exhibit CN1, the Claimant was aware that a committee was set up to investigate the allegation and he was to meet with the Committee on 22nd July 2017 at Nasarawa State University where the 1st Defendant was holding its NEC meeting. It was further contended that on the face of the report of the committee the Claimant was present at the hearing and gave evidence. On the third element, it was argued that the committee’s report indicted the Claimant for plagiarism and recommended his removal from office which decision was ratified by NEC in exhibit B. The Defendants argued that the Claimant failed to plead the date he was removed from the position as Chairperson ASUU EBSU and that the date of his removal from office is key to determining his case. It was explained that the committee report was adopted and ratified on 3rd May 2018 and the Claimant was removed from office on 4th May 2018 and referred to exhibits CN1, A, B and C and urged the Court to dismiss the case and relied on Dumez Nig. Ltd. v. Nwakhoba [2008] 18 NWLR [pt.1119] 365.On issue two, the Claimant contended that his removal did not comply with proper procedure as encapsulated in Appendix 1, section 5 of the constitution and code of practice of the 1st Defendant on the ground that the EXCO and Congress of the 1st Defendant EBSU Chapter was not notified of the allegation against the Claimant and that the disciplinary process must start at the branch organ and relied on section 5[iv] and [v] of Appendix 1 of the ASUU constitution. Contrariwise, the Defendants argued that the Claimant cannot rely on section 5[iv] of Appendix 1 as he is covered by section 5[v] of Appendix 1 and relied on exhibits CN1 and A-C. On issue three, the Claimant argued that the power of investigation of alleged commission of crime lies on the Nigeria Police Force and not the 1st Defendant; and that the allegation of corrupt practices ought to have been reported to appropriate agencies for investigation and by failing to do this the Defendants acted ultra vires. The Defendants contended that this is a misconception of law and a misinterpretation of the constitution of the 1st Defendant and referred to section 9 of Appendix 1 of the constitution and code of practice of Academic Staff Union of Universities. It was submitted that the meaning of corrupt practices in the 1st Defendant’s constitution is clear and not ambiguous and as a result no other meaning can be ascribed to it.

I will adopt the three issues raised and argued by the parties. In considering issue one which is, whether the Claimant was given fair hearing by the Defendants before his purported removal from office as ASUU Chairperson [EBSU Chapter] in view of the fact that no notice or report of allegation of corrupt practices was served on him, it is evident that the thrust of the Claimant’s case is that notice or report of allegation of corrupt practices was not served on him. The Claimant relies on sections 9, 4[d][i], 5[i], [iv] and [v] of Appendix 1, the Constitution and Code of Practice of the Academic Staff Union of Universities [“Appendix 1”] and section 36[6][b] [c] [d] of the Constitution of the Federal Republic of Nigeria, 1999 as amended. For clarity, the relevant sections are reproduced in this judgment. Section 4[d][i] provides:

“each member shall have the right to fair treatment in the application of Union’s rules and Constitution. Trade Union disciplinary procedures shall contain all elements of fair play and the rules of natural justice; that is, notice, hearing and judgment on the basis of the evidence should be observed. A method of appeal to a higher body should be provided to ensure that judgments are not the result of prejudice or bias.”

This provision encapsulates the general philosophy behind the 1st Defendant’s disciplinary process. It is trite law that the Union constitution constitutes a contract between the Union and its members. See Nigeria Civil Service Union & Anor. v. O. G. Essien & Anor. [1985] 3 NWLR [pt.12] 306. By this provision, the 1st Defendant has bound itself to its members that in all disciplinary proceedings it will afford them fair treatment and adhere to the rules of natural justice.The law is now settled that any administrative panel whose decision is likely to affect the rights and future of another person, be it an employee or a Union official, must accord him a fair hearing. Fair hearing is the impression by an ordinary reasonable person watching the proceedings. If he goes away with the impression that a person has not been treated fairly then there is a breach of fair hearing. In the Nigerian legal system, fair hearing is not only a common law right it is also a constitutional right. See section 36[1] of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of Rear Admiral Francis EchieAgbiti v. The Nigerian Army [2011] 45 NSCQR vol.1 388 at 439-440 and Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at pages 43 and 52. Fair hearing requires the observance of the twin pillars of the rules of natural justice, audi alteram partem and nemo judex in causa sua. In the exercise of its disciplinary authority over the Claimant, the 1st Defendant is required, by its constitution, to observe the rules of natural justice. The Claimant’s complaint is that he was not given notice of the allegation of corrupt practices against him. This appears to be a misapprehension of the case against him. The allegation against the Claimant is not ‘corrupt practices’ strictly speaking but plagiarism which, if proved, constitutes ‘corrupt practices’ as defined in section 9 of Appendix 1. For better understanding of this provision, section 9 is reproduced here:

“A basic ethical principle in the conduct of trade union affairs is that no responsible trade union official should have a personal financial interest which conflicts with the full performance of his or her duties as a workers’ representative or as a representative of the Union and therefore of the trade union. All elected and appointed trade union officials as well as employees of the Union and the trade unions will eschew corrupt practices in all their forms; that is, not only in financial and political matters but also in those matters which involve loss of union prestige and jeopardy of union and membership interests rather than Union assets as such.”

This provision is clear and, in my respectful view, must be given its natural and ordinary meaning. ‘Corrupt practices’in this context includes ‘loss of union prestige and jeopardy of union and membership interests”. In Incorporated Trustees of Nigerian Baptist Convention & 12Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, Tsammani, J.C.A.,held

“Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement[s] of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, see Obikoya v. Wema Bank Ltd (1991) 7 NWLR (pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (pt.118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties.”

Now, back to whether the Claimant was given notice of the allegation against him or not. Exhibit CN1 was tendered by the Claimant. It is a petition by one Dr. Dabwor T. Dalis of the University of Jos. The content of the petition is clear and it was addressed to the Chairman of University of Jos Chapter of the 1st Defendant who forwarded the petition through the Zonal Coordinator to the 2nd Defendant. The 2nd Defendant in turn referred it to the Zonal Coordinators of Calabar and Owerri Zones for investigation in conjunction with the Treasurer. The Zonal Coordinator of Calabar Zone forwarded the petition to the Claimant with a clear directive to him to respond to the allegation of plagiarism levelled against him by Dr. Dalis and meet with the Committee during the 1st Defendant’s NEC meeting on 22nd July 2017.The fifth endorsement on exhibit CN1 shows that the Claimant responded to the allegation. He could have responded formally and attached supporting documents, but he chose to respond by his endorsement on the petition which, in my opinion, is sufficient answer to the allegation. Consequently, paragraphs 12, 13, 14, 15 and 19 of the Claimant’s affidavit in support of the originating summons are false. The Claimant received the petition on 21st July 2017 and responded on the same day. He addressed his response to the Zonal Coordinator, which means he understood who forwarded the petition to him and what he was required to do. Paragraph 15 is nauseating. He claimed that one of the endorsements required him to meet a Committee which members were not disclosed to him. Nothing can be farther from the truth. The 2nd Defendant’s endorsement, endorsement number three on the top left column of exhibit CN1 clearly indicates the members of the Committee and the Claimant as a Unionist and member of NEC of the 1st Defendant knows the members of the Committee. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki Tobi, J.S.C. [of blessed memory] had this to say:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell [sic] a lie and the courts cannot be blind to such a lie.”

Paragraphs 12, 13, 14, 15 and 19 of the Claimant’s affidavit clearly tell a lie and must be discountenanced. It is evident that the Claimant was informed of the allegation against him and was given the opportunity to defend himself in writing and to make oral representation to the Committee set up by the 2nd Defendant to investigate the allegation. To this extent the rules of fair hearing have been complied with. In Edward Aiyetan v. The Nigerian Institute of Oil Palm Research [1987] LPELR-275[SC] at pages 13-14, relied on by the Claimant, Nnamani, J.S.C., held that audi alteram partem means that “each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it.” Whether he took advantage of the opportunity afforded him by the Defendants is not the Defendants’ business. The Defendants’ duty is to provide the opportunity for a fair hearing of the allegation against him but they cannot compel him to utilize it or determine the manner he utilizes it. See Hon. MuyiwaInakoju& 17Ors. v. Hon. Abraham Adeolu Adeleke & 3Ors. [2007] LPELR-1510[SC] at page 105, where Niki Tobi, J.S.C., held:

“… the duty of the court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing.”

In Rev. Bright OrieIgwe v. Rev. Daniel E. Etim& 11Ors., Suit no. NICN/ABK/01/2015 delivered on 26th September 2018, this Court posited that:

“It must be noted that fair hearing is not a magic wand wielded by a litigant in an attempt to overturn administrative decisions considered unfavourable to him or a panacea for resolution of all domestic industrial disputes. The requirements of natural justice, of which fair hearing is the fulcrum, must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with. See Stephen O. Adedeji v. Police Service Commission [1968] NMLR 102 at 107. Much judicial time and litigation expenses will be saved if learned Counsel makes this distinction. It is not every proceeding or dispute that learned Counsel waves the banner of fair hearing. Fair hearing is a potent instrument that must be guarded jealously and deployed cautiously.”

The Claimant did not address the Court on section 5[i], [iv] and [v] of Appendix 1 and it is deemed to have been abandoned. See Fenton Keynes Finance Ltd. & Anor. v. Transply Nigeria Limited [2010] LPELR-4156[CA] at page 15. At any rate, the provision of section 5[i], [iv] and [v] of Appendix 1 has nothing to do with notice of allegation. Section 5 deals with grievance procedure. Subsections iv and v make provisions for cases involving an officer and chairperson of the Branch. Consequently, issue one is resolved in favour of the Defendants and against the Claimant.

This leads me to issue two which is,whether the Defendants followed due procedure or process in the purported removal of the plaintiff as Chairperson ASUU [EBSU Chapter]? The Claimant contends that the Defendants did not comply with the procedure specified in section 5 of Appendix 1 on the ground that the EXCO and Congress of the 1st Defendant EBSU Chapter were not notified of the allegation against the Claimant and that the disciplinary process must start at the Branch organ and relied on section 5[iv] and [v] of Appendix 1. On the other hand, the Defendants argued that the Claimant cannot rely on section 5[iv] of Appendix 1 as he is covered by section 5[v] of Appendix 1 and relied on exhibits CN1 and A-C. I have read section 5 of Appendix 1 and I do not agree with learned Counsel for the Defendants that section 5[v] applies to the Claimant in the circumstances of this case. It provides:

“Where the complaint is against the Chairperson of the Branch, the finding and recommendations of the Congress shall be forwarded to NEC for confirmation or otherwise.”

This provision, read in conjunction with subsections i, ii, iii, iv, vi, vii and viii of section 5, evinces complaints against the Chairperson by members of the 1st Defendant in that Branch. It does not envisage the situation in this case where the member complaining is from the University of Jos Chapter. The implication of learned Counsel’s arguments is that Dr. Dalis will appear before the EBSU Chapter Congress to present his case. This is absurd and cannot be the intention of the draftsman from a community reading of the section. It is a settled rule of construction of statutes that where the words of a statute are clear and unambiguous, they should be given their natural meaning but, where the literal interpretation of the provision will result in an ambiguity or injustice, the Court is entitled to seek internal aid within the body of the statute. See Noga Hotels International S.A. v. Nicon Hotels Limited & 9Ors. [2007] LPELR-8898[CA] at page 29.In addition, the provisions of the statute should be read as a whole in order to understand the true intentions of the draftsman. SeeAjao Ajadi Adams v. Babatunde Umar & 4Ors. [2008] LPELR-3591[CA] at page 53. It is my considered opinion that the grievance procedure set out in section 5 applies to disputes amongst members of the 1st Defendant in the respective Branches. Disputes between a member of the 1st Defendant in one Branch against a member in another Branch, as in the instant case, cannot be dealt with by the Congress of either Branch but by the National Executive Council or a Committee of the National Executive Council as was done in this case. This position finds support in section 3 of Appendix 1 which provides:

“The failure on the part of any member or official of the Union to observe any of the provisions of this Code shall, in any disciplinary proceedings under the Constitution of the Union or of the Nigeria Labour Congress [NLC], as the case may be, be admissible in evidence and any provision of the Code which appears to the disciplinary tribunal or Committee to be relevant to any issue before it shall be applied.”

Accordingly, I hold that failure to refer the complaint to the Congress of the 1st Defendant EBSU Chapter did not vitiate the disciplinary process in the circumstances of this case. Issue two is resolved against the Claimant.

The third issue is whether the Defendants did not act ultra vires when it [sic] arrogated to itself [sic] the power of criminal investigation of the alleged crime of corrupt practices against the Plaintiff instead of making report to the appropriate criminal investigating authorities?The Claimant contended that the power of investigation of a crime lies on the Nigeria Police Force and the allegation of corrupt practices ought to have been reported to appropriate agencies for investigation; and by investigating the alleged crime the Defendants acted ultra vires. Contrariwise, the Defendants argued that this is a misconception of law and a misinterpretation of the constitution of the 1st Defendant and referred to section 9 of Appendix 1. It was submitted that the meaning of corrupt practices in Appendix 1 is clear and not ambiguous and as a result no other meaning can be ascribed to it. I agree with the submission of learned Counsel for the Defendants. The Claimant’s argument is either a misapprehension of the 1st Defendant’s Constitution and Code of Practice or a deliberate mischief. The words ‘corrupt practices’ as used in section 9 of Appendix 1 do not have the same meaning as in criminal legislations. In the first place, the allegation against the Claimant is not ‘corrupt practices’ but plagiarism which, if proved, constitutes ‘corrupt practices’ as defined in section 9 of Appendix 1. Section 9 provides:

By the clear wording of this section, ‘corrupt practices’ is not limited to financial and political matters but to matters which involve “loss of union prestige and jeopardy of union and membership interests”. Corrupt practices have been given an extended meaning to include conducts and actions which cast doubt on the moral competence of the Claimant to continue to hold the position of a Union leader. It is therefore within the competence of the 1st Defendant to investigate. At any rate, it is not the law that the 1st Defendant must refer the allegation of crime to the Nigeria Police Force for investigation before it can sanction the Claimant. It is settled law in employer-employee relationship that prosecution of an employee in a court of law for acts of gross misconduct bothering on allegation of crime is not a sine qua non to the exercise of disciplinary powers against the employee. See the cases of Yusuf v. Union Bank of Nigeria Ltd. [1996] 6 NWLR [pt.457] 632, Francis Arinze v. First Bank of Nigeria Ltd. [2004] 12 NWLR [pt.888] 663 and Mr. Ibrahim Jibril v. The Military Administrator, Kwara State &Ors. [2006] LPELR-7685[CA] at pages 19-21. However,whether the Claimant was first reported to the Police or prosecuted for corrupt practices pales into insignificance once I am satisfied that the Claimant was given a fair hearing. See Francis Arinze v. First Bank of Nigeria Ltd. [1999] LPELR-5648[CA] at page 43.I am satisfied that the Claimant was given a fair hearing and the 1st Defendant was not required to report the Claimant to the Nigeria Police Force before sanctioning him. Issue three is therefore resolve against the Claimant.

Let me now go to the reliefs sought by the Claimant.

Relief one seeks a declaration that the Defendants acted in breach of fair hearing when they purportedly removed the Plaintiff from office as ASUU Chairperson [EBSU Chapter] without serving him notice of the allegation of corrupt practices leveled against him as well as forum to defend himself. I found earlier that the Claimant was given a fair hearing. I said, in the resolution of issue one, that the Claimant was informed of the allegation against him and was given the opportunity to defend himself in writing and to make oral representation to the Committee set up by the 2nd Defendant to investigate the allegation. To this extent the rules of fair hearing have been complied with. In Edward Aiyetan v. The Nigerian Institute of Oil Palm Research [1987] LPELR-275[SC] at pages 13-14, relied on by the Claimant, Nnamani, J.S.C., held that audi alteram partem means that “each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it.” Whether the Claimant took advantage of the opportunity afforded him by the Defendants is not the Defendants’ business. The Defendants’ duty is to provide the opportunity for a fair hearing of the allegation against him but they cannot compel him to utilize it or determine the manner he utilizes it. Also, I observed above that the allegation against the Claimant is not ‘corrupt practices’ but plagiarism which, if proved, constitutes ‘corrupt practices’ as defined in section 9 of Appendix 1. Exhibit CN1 which was forwarded to the Claimant for his response and which he responded to constitutes sufficient notice of the allegation against him. Consequently, this relief fails and it is dismissed.

Relief two is for a declaration that the Defendants did not follow proper procedure in the purported removal of the Plaintiff from the office aforesaid. This claim is based on issue two. Arising from the resolution of issue two above, I find and hold that this claim has not been proved. The provision of section 5[v] of Appendix 1, read in conjunction with subsections i, ii, iii, iv, vi, vii and viii of section 5, evinces complaints against the Chairperson by members of the 1st Defendant in that Branch. It does not envisage the situation in this case where the member complaining is from the University of Jos Chapter. If it were otherwise it would create an absurd situation where the complainant, Dr. Dalis, would come from University of Jos to appear before the Ebonyi State University Chapter Congress. This is not the intendment of the draftsman from a community reading of the section. Accordingly, I hold the view that the grievance procedure set out in section 5 applies to disputes amongst members of the 1st Defendant in the respective Branches. Disputes between a member of the 1st Defendant in one Branch against a member in another Branch, as in the instant case, cannot be dealt with by the Congress of either Branch but by the National Executive Council or a Committee of the National Executive Council as was done in this case. The Defendants’ failure to refer the complaint against the Claimant to Ebonyi State University Chapter Congress, in my considered opinion, did not vitiate the disciplinary process. This relief fails and it is dismissed.

Relief three seeks a declaration that the Defendants acted ultra vires when it arrogated to itself the power of criminal investigation of the alleged crime of corrupt practices leveled against the Plaintiff instead of reporting same to the appropriate criminal investigating authorities. Based on the resolution of issue three above, this claim has not been proved. As stated earlier in this judgment, the words ‘corrupt practices’ as used in section 9 of Appendix 1 do not have the same meaning as in criminal legislations. It must be noted that the allegation against the Claimant is not ‘corrupt practices’ but plagiarism which, if proved, constitutes ‘corrupt practices’ as defined in section 9 of Appendix 1; which provides, inter alia, “… All elected and appointed trade union officials as well as employees of the Union and the trade unions will eschew corrupt practices in all their forms; that is, not only in financial and political matters but also in those matters which involve loss of union prestige and jeopardy of union and membership interests rather than Union assets as such.” By the clear wording of this section, ‘corrupt practices’ is not limited to financial and political matters but to those matters which involve “loss of union prestige and jeopardy of union and membership interests”. Corrupt practices have been given an extended meaning to include conducts and actions which cast doubt on the moral competence of the Claimant to continue to hold the position of a Union leader. It is therefore within the competence of the 1st Defendant to investigate. At any rate, it is not the law that the 1st Defendant must refer the allegation of crime to the Nigeria Police Force for investigation before it can sanction the Claimant. See Yusuf v. Union Bank of Nigeria Ltd. [supra] and Francis Arinze v. First Bank of Nigeria Ltd. [supra]. Be that as it may, I am satisfied that the Claimant was given a fair hearing by the Defendants; and the non-referral of the allegation against him to ‘appropriate criminal investigating authorities’ is of no moment. See Francis Arinze v. First Bank of Nigeria Ltd. [1999] LPELR-5648[CA] at page 43. Relief three also fails and it is dismissed.

Relief four claims two million naira [N2, 000,000] general damages for the psychological trauma, ill reputation and loss of good standing suffered by the Plaintiff owing to the wrongful actions and conducts in the unwarranted removal of the Plaintiff from office. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. General damages are losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31. The Claimant failed in all the reliefs sought. In the circumstances, I do not see any justification to award general damages against the Defendants. This claim also fails and it is dismissed.