FEDERAL UNIVERSITY OF TECHNOLOGY AKURE v. DR R.A. OSEMENAM (2011)

FEDERAL UNIVERSITY OF TECHNOLOGY AKURE v. DR R.A. OSEMENAM

(2011)LCN/4514(CA)

RATIO

PROLIFERATION OF ISSUES: WHETHER ISSUES DISTILLED FROM GROUNDS OF APPEAL CAN BE SPLITTED INTO SUB-ISSUES

The law is settled that issues refined from grounds of appeal should not be split into sub-issues. See AGU V. IKEWIBE (1991) 3 NWLR (pt. 180) 385 and OGBE v. ASADE (2009) 18 NWLR (pt.1172) 105. PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

GROUNDS OF APPEAL: WHETHER AN ISSUE FOR DETERMINATION MUST FLOW FROM THE GROUNDS OF APPEAL FILED BY THE APPELLANT

The law is very trite that an issue must flow from the grounds of appeal. See the supreme court cases of IMB SECURITIES PLC v. TINUBU (2001) 16 NWLR (pt. 740) 670 and DADA V. DOSUNMU (2006) 18 NWLR (pt. 1010) 134. PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

EXAMINATION FRAUD OR MALPRACTICE: PUNISHMENT FOR CHEATING AT AN EXAMINATION OR EXAMINATION FRAUD OR MALPRACTICE

Cheating at an examination or examination fraud or malpractice is a criminal offence under the Miscellaneous offences Act, Cap.410 Laws of the Federation of Nigeria, 1990 (now cap. M.17, Laws of the Federation of Nigeria, 2004). Section 3(15) thereof stipulates that offenders are liable to a ten-year jail term. PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

SUSPENSION OF A STUDENT: WHETHER SUSPENSION OF A STUDENT IN A UNIVERSITY IS A CHARGE OF CRIMINAL OFFENCE

…the case of CHIEKWE IKWUNZE ESIAGA v. UNIVERSITY OF CALABAR & 2 ORs. (2004) 7 NWLR (pt. 872) 366 (not 866), the appellant a final year student was suspended pending a date that he would be invited to appear before a panel for alleged membership of a banned secret cult, after the uniform or insignia of a secret cult and a short gun cartridge in box belonging to him were found in his wardrobe upon a search of his hostel room. His roommates signed as witnesses that the items belonged to the appellant. The recovered items were sent to the Commissioner of police in charge of Cross River State for necessary or appropriate action. The appellant was aggrieved with his indefinite suspension and applied for the enforcement of his fundamental rights claiming that he was not heard before his suspension and prayed that the same be set aside. The trial High Court granted the appellant’s relief but the Court of Appeal dismissed the appellant’s suit. Upon appeal by the appellant to the Supreme Court, it was held at page 39, per KALGO JSC, inter alia as follows: “It is also without any iota of doubt that the appellant was not charged with any criminal offence by the Vice Chancellor or the University Council. The letter of the Vice Chancellor… to the appellant was clear. It merely stated that the possession of the 3 items alleged to have been found in the appellant’s wardrobe may constitute a criminal offence, and realizing that he had no jurisdiction to try any criminal offence, he sent the items… to the Commissioner of Police to take appropriate action. It cannot therefore be said by any stretch of imagination that the Vice Chancellor, by taking such steps, has charged the appellant with any criminal offence. His action in suspending the appellant…. was an administrative action intended to ensure good and stable administration of the institution which he was empowered to do. In the Garba v. University of Maiduguri this court recognized the fact that suspension of student in a University is an internal affair of the University to enhance good administration and not necessarily a disciplinary measure. In any case a suspension is not a charge of criminal offence and the appellant was not on trial then”. PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

JURISDICTION OF A DISCIPLINARY INVESTIGATING PANEL OF A UNIVERSITY: WHETHER A DISCIPLINARY INVESTIGATING PANEL HAS JURISDICTION TO ENTERTAIN CRIMINAL ALLEGATIONS AGAINST ACCUSED STUDENTS

In GARBA V. UNIVERSITY OF MAIDUGURI (supra) some students of the respondent participated in a demonstration in the respondent University in 1983 in which there was alleged arson, indecent assault, looting and destruction of property. Various Investigating Panels were set up by the University with respective terms of reference. One of the Panels-Disciplinary Investigating Board conducted an investigation in which witnesses, including students, were interviewed. At the end of its investigation some students including the appellants were expelled. The appellants filed an action for the enforcement of their fundamental rights and claimed four reliefs and the principal ground upon which they sought their prayers was that they were not afforded fair hearing as they did not know the evidence against them. Their prayers were granted by the trial court but were dismissed by the Court of Appeal. Upon Appeal to the Supreme Court, one of the three issues which called or arose for determination was “whether the Disciplinary investigating Panel had jurisdiction to entertain the criminal allegations against the Appellants”. The Supreme Court, per NNAMANI, JSC held in GARBA v. UNIVERSITY OF MAIDUGURI (supra) as follows: “As I indicated earlier the offences for which the appellants were undoubtedly held liable by the Board and the panel included looting, arson, destruction of property and indecent assault. These are offences under the panel code and therefore are triable only by the regular courts of law. Neither the investigating Panel which investigated these serious charges nor the disciplinary Board of the senate which considered its finding is a court of law. Neither of them was competent to adjudicate on matters connected with the rights of the appellants once the allegations intruded crimes” PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

ADMISSION OF CRIMINAL ALLEGATION: WHETHER WHERE A PERSON TO BE DISCIPLINED IN RESPECT OF ALLEGATIONS OF CRIMINAL NATURE ACCEPTS LIABILITY, THE NECESSITY PRIOR FOR A TRIAL AND CONVICTION BY A COMPETENT COURT OR TRIBUNAL IS OBVIATED

…in the case of F.C.S.C. v. LAOYE (supra) the Supreme Court qualified the principle of law set down in previous decisions including GARBA V. UNIVERSITY OF MAIDUGURI (supra) by adding that if the person to be disciplined in respect of allegations of criminal nature accepts liability, the necessity prior for a trial and conviction by a competent court or tribunal is obviated. In F.C.S.C. v. LAOYE (supra) the Supreme Court held, inter alia as follows: “The decision in Garba v University of Maiduguri (1986) 1 NWLR (pt 18) 550 should however not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved care must be taken that the provision of section 33(4) of the 1979 constitution are adhered to. where the person so accused accepts his involvement in the act complained of, no proof of the criminal allegation against him would be required…. He could face discipline thereafter… ” It seems clear to me, therefore, that an employee, whose employment is spiced with statutory anointing, cannot be disciplined by way of dismissal based on allegations bordering on legal criminality without his criminal liability first established by a competent court or tribunal, unless such employee admits liability. PER HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A.

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of May, 2011

HON. JUSTICE MOORE A.A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The facts of this case are simple. The respondent – Dr. R.A. Osemenam was employed by the appellant – Federal University of Technology, Akure, as a lecturer in October, 1988. The respondent served the appellant and was promoted several times until he became the Acting Head of Department of Mining Engineering of the appellant University between 2000 and 2002. However, by a letter admitted by the lower court as exhibit P16, the respondent was dismissed on the 27th day of November, 2003.

The respondent, naturally, was not happy with his dismissal by the appellant and he filed a suit challenging the action of the appellant. The respondent filed a writ of summons together with a statement of claim in the Akure Division of the Federal High Court on the 3rd day of December, 2003. In paragraph 40 of his statement of claim, the respondent sought the following prayers, namely:

a. DECLARATION that the Plaintiff’s purported dismissal from the employment of the Federation (sic) University of Technology, Akure by a Letter dated the 27th day November, 2003 is null and void unconstitutional and of no effect.

b. A DECLARATION that the Plaintiff is still in the employment of the Federal University of Technology, Akure.

c. AN ORDER directing the Defendant to reinstate the Plaintiff to his status as a Senior Lecturer without prejudice to his entitlements and promotions which might have accrued to him during the period of his purported dismissal.

d. AN INJUNCTION restraining the Defendant from further interfering with the Plaintiff’s performance of his duties as a senior Lecturer in the Federal University of Technology, Akure.

After series of interlocutory motions (Pages 7 – 25 of the record of appeal) the appellant, as defendant in the court below, filed a statement of defence of 39 paragraphs (pages 26 – 31 of the record of appeal). The respondent’s reply to the appellant’s statement of defence spans pages 32 – 34 of the record of appeal.

The case in the lower court proceeded to trial and after hearing the parties and their witnesses and the addresses of learned lawyers for the parties, the trial court delivered a considered judgment on the 20th day of September, 2004. The judgment of the trial court is at pages 130 to 149 of the record of appeal. In his judgment, the learned trial judge, HON. JUSTICE LAMBO J. AKANBI granted the respondent’s prayers. (Page 149 of the record of appeal)

The appellant was dissatisfied with the judgment of the lower court and he appealed to this Court on the following three (3) grounds, weeded of their particulars, namely:

Ground 1:

The learned Judge of the Federal High court erred in Law when His Lordship held that the allegations over which appellant sought to investigate by inviting respondent to make representation thereon id est;

(i) That during the tenure of respondent as head of Department of Mining Engineering in 2000/2001 session, one Mr. V. Igenuma was arbitrarily scored 70% A, in a course MEE 207 even when Igenuma did not submit script to the invigilator and;

(ii) That respondent submitted during 2000/2001 academic Session, multiple results in three courses namely MNE 203, MNE 301 and MNE 405 for one Mr. Umweni Matthew a student with Matriculation No. PHY/95/6820 is criminal allegations and therefore appellant had no power to deal with it but the Court.

Ground 2:

The learned judge of the Federal High Court erred in Law when His Lordship held that respondent was not given fair hearing by appellant before dismissing him from its employ.

Ground 3:

The Learned Judge of the Federal High Court erred in Law when His Lordship failed to consider the Federal Universities of Technology Act cap 143 Laws of Federation 1990 before arriving at a decision that respondent was not given fair hearing which decision occasioned a miscarriage of Justice.

In accordance with the Rules of this court, the parties filed and exchanged briefs of argument. The appellant’s brief, dated the 10th day of January, 2006 and settled by Olagoke Fakunre Esq; was filed on the 23rd day of september, 2008. The respondent’s brief settled by Femi Falana, Esq; was filed on the 28th day of September, 2009 out of time. Upon the oral application of the learned counsel for the respondent and without any objection by learned counsel for the appellant, the respondent’s brief was on the 7th day of February, 2011 deemed as properly filed and served.

At the hearing of the appeal, Miss O.O. Osekita, Esq; who appeared for the appellant adopted and relied on the appellant’s brief. She urged the Court to allow the appeal and set aside the judgment of the trial court. On the other side, Femi Falana, Esq; adopted and relied on the respondent’s brief and asked the court to dismiss the appeal and affirm the judgment of the trial court.

In the appellant’s brief the following issues were framed for determination, namely:

1). whether appellant was right and could validly investigate the allegations of misconduct brought against respondent to wit.

a). That respondent submitted during 2000/2001 academic session, multiple results in three courses namely MNE 203, MNE 301 and MNE 405 for one Mr. Umwemi Matthew a student with matriculation No PHY/95/6820

b). That during the tenure of respondent as Head of Mining Engineering in 2000/2001 session, one Mr. v. Igenuma was arbitrary (sic) scored 70% ‘A’ in a course MEE 207 even when Igenuma did not submit script to the invigilator.

2). whether respondent was afforded opportunity of been heard on the allegation brought against him by appellant before his services with the University was dispensed with.

On his part, the respondent formulated the following two issues, namely:

1. Whether the learned trial judge was right when he held that the allegation of examination malpractice leveled (sic) against the Respondent was criminal which ought to have been tried in a law court – (Ground 1).

2. Whether the Respondent was given fair hearing by the Appellant pursuant to section 14 of the Federal Universities of Technology Act (Cap F23) Laws of the Federation of Nigeria, 2004 before his dismissal from the public service-(Grounds 2 and 3)

The law is settled that issues refined from grounds of appeal should not be split into sub-issues. See AGU V. IKEWIBE (1991) 3 NWLR (pt. 180) 385 and OGBE v. ASADE (2009) 18 NWLR (pt.1172) 105.

However, in the overriding interest of justice, and since no objection was raised by the respondent, I will not disturb the issues as distilled by the appellant. My decision notwithstanding, I am of the view that the two issues formulated by the respondent fully cover the live questions which call for determination in this appeal. The said issues are hereby adopted as the issues for determination in this case.

The two issues will be treated together. This is so because they are interwoven or intertwined and the appellant itself argued them together.

In his argument, the learned counsel for the appellant summarized the evidence before the lower court, the judgment and reasoning of the lower court and contended that the appellant University could “validly discipline it’s (sic) staff academic or otherwise either by dismissal or whatever even when the alleged wrongful act or misconduct committed by such member of staff of the University is a Criminal offence. The prosecution of an employee before a Court of Law is not a sine qua non to the exercise of power of summary dismissal by an employer for gross misconduct”. On this argument, the appellant referred the Court to the cases of ESIAGA V. UNIVERSITY OF CALABAR (2004) 7 NWLR (pt. 872) 866 and ARINZE V. FIRST BANK OF NIGERIA PLC (2004) 12 NWLR (pt. 88S) 663. Olagoke Fakunle, Esq. learned counsel for the appellant argued that the heavy reliance, by the trial court, on the case of GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550 in granting the respondent’s relief was erroneous.

The learned counsel for the appellant contended that the “respondent having been afforded opportunity of hearing by the appellant before the Joint Committee of Council/Senate…vide exhibit DG and respondent having not taken advantage of the opportunity cannot complain of failure of hearing nay fair hearing before he was dismissed from the service of appellant.

See Olatubosun – v – Niser (1988) 3 NWLR part 80 page 25 at 56 – 57 & 59

See Garba – V – University of Maiduguri (1936) 1 NWLR Part 18 Page 550 at 612

See also Lana – V – University of Ibadan (1957) 4 NWLR part 64 page 245”

The learned lawyer representing the appellant submitted, accordingly, that the “appellant acted constitutionally and in line with the enabling statute empowering it so to do in dismissing respondent notwithstanding whether the allegations against him are of Criminal nature or not.”

The respondent’s learned counsel responded by summarizing the facts of the case and the judgment of the trial court. The learned counsel stated that the respondent was accused of involving himself in examination malpractice by awarding one V. Igenuma, a student of Mining Engineering Department of the appellant University, 70% when the said student did not submit his examination manuscript. The respondent was also accused of giving another student – Umwenu Matthew of the appellant’s Department of Physics, multiple results in three courses, namely MNE 203, MNE 301 and MNE 405. According to the respondent, the appellant, upon the evidence at the lower court, later dropped the allegation in respect of Umwenu Matthew. See paragraph s 4.02 to 4.04 of the respondent’s brief.

The respondent stated that the appellant “investigated and tried the allegations of examination malpractice against the Respondent” and notwithstanding “the vehement denial of the Respondent he was tried and found guilty of examination malpractice and dismissed from the service of the appellant. Thus the Respondent was punished for a criminal offence without the benefit of a trial by a court of law” contrary to the decision of the Supreme Court in the case of YUSUFU GARBA V. UNIVERSITY OF MAIDUGURI (1986) 2 NWLR (Pt. 8) 550 at 596. See paragraphs 4.05 to 4.07 of the respondent’s brief.

Femi Falana, Esq; learned counsel for the respondent further referred the Court to the case of F.C.S.C. V. LAOYE (1989) 2 NWLR (pt. 10G) 652 and argued that “the only situation where a public officer can be dismissed without trial is where the person so accused accepts his involvement in the criminal allegation leveled (sic) against him” and not where the employee maintains his innocence. Learned counsel stated that the earlier cases of DENLOYE V. MEDICAL COMMITTEE (1968) NWLR 306 and DR. SOFEKUN V. CHIEF AKINYEMI (1980) 5 – 7 S.C 1 at 8 also support his contention in this respect.

On the question of fair hearing, the learned counsel for the respondent contended that the case of YUSUF v. UBA LTD. (1996) 5 NWLR (pt. 457) 632 heavily relied upon by the appellant was irrelevant to this case because in that case the employee was afforded an opportunity to explain himself. Learned counsel for the respondent argued that, in the present case, the respondent “was completely denied the fundamental right to fair hearing” and using the words of KAYODE ESO, JSC in LEGAL PRACTITIONERS PRIVILEGES COMMITTEE V. GANI FAWEHINMI (1985) 1 NWLR (Pt.7) 300, it was a case of “come for your assured judgment”. The respondent referred to the testimonies of DW1 (Mutalubi Aremu Akintunde), DW2 (Felix Olufeyisayo Adetula), DW3 (Dele Ajaka), DW4 (Dr. Debo Adyawa) DW6 (Professor Oladapo Olawoye), DW7 (Adeboye Olatunji) and DW8 (Dr. (Mrs.) Eunice Funke Oyebade) and argued that the respondent was denied his fundamental right to fair hearing contrary to the provision of section 14(1) of the Act that established the appellant University. The very learned lawyer representing the respondent referred to the cases of OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 549 and EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162 and submitted that “any lecturer accused of misconduct is entitled to the details of the allegation against him and allowed to make representation” before any disciplinary action could be taken against him.

Learned counsel for the respondent referred to the finding of the learned trial judge at page 147 of the record of appeal that the respondent was not given a fair hearing before he was dismissed. Counsel contended that this finding “has not been challenged on appeal by the Appellant. The learned counsel for the respondent then submitted as follows:

‘Thus, apart from not allowing the Respondent to challenge those who had given evidence against him he was denied legal representation which had been recommended by the Appointment and promotions committee. Most importantly, those who had indicted the Respondent admitted that they were never invited to the sitting of the Joint council/senate committee which indicted the Respondent and dismissed him.”

Mr. Falana referred to Section 14(1) of Federal University of Technology Act Cap.143, Laws of the Federation of Nigeria, 1990 and argued that “a lecturer accused of misconduct is entitled to know the details of the allegation against him and allowed to make representation to the council before any disciplinary action can be taken against him”. On this point, counsel referred to the cases of OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (pt. 91 549; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162 and ANYA V. IYAYI (1993) 7 NWLR (Pt. 305) 290.

On whether the Council of the University could delegate its disciplinary powers, learned counsel for the respondent referred to the case of DR. TUNDE BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290, in which case the supreme court, per AYOOLA, JSC, held as follows:-

“I agree with the submission of counsel for the respondents and the opinion of the chief Judge, and Ogundare JCA that the council could not delegate its disciplinary powers. I hasten to add that it can delegate to committee the function which inheres in it incidental to the exercise of its disciplinary powers of conducting hearing or other investigations to collect materials on which its decision will be based. At the end of the day, the decision to exonerate the member of staff from blame or remove him from office is that of the council.”

Learned counsel for the respondent argued that in the present case, Council of the appellant University “delegated its power to discipline the Respondent to the Joint Senate/Council Committee contrary to Section 14 of the Act which requires the Council to take the decision”. The learned counsel for the respondent referred to the letter of dismissal sent to the respondent by the appellant and the evidence of DWS – Dr. (Mrs.) Eunice Onyebade at page 79 of the record of appeal where she stated that “The Council approved the dismissal of the Plaintiff/Respondent”.

The issue of whether or not the appellant could delegate its disciplinary powers raised by Mr. Falana, learned counsel for the respondent, with due respect, is not an argument flowing from any of the two issues refined by the respondent in this appeal. It does not also flow from any of the grounds of appeal filed in this case. This issue is incompetent and it is hereby not countenanced. The law is very trite that an issue must flow from the grounds of appeal. See the supreme court cases of IMB SECURITIES PLC v. TINUBU (2001) 16 NWLR (pt. 740) 670 and DADA V. DOSUNMU (2006) 18 NWLR (pt. 1010) 134.

In the instant case the matter is made worse as the issue was raised in the court below and it was resolved against the respondent. The learned trial judge reviewed the facts and circumstances of the case and held, inter alia, in respect of this issue or question as follows:

“In the circumstances aforesaid, I am unable to answer the question posed by issue no.1 in favour of the plaintiff. My answer is therefore that the panel that was set up to investigate the plaintiff’s conduct is that of the University Council…”

The respondent did not cross appeal on the decision of the learned trial judgment and cannot therefore make an issue out of it in this court.

I have earlier summarized the facts of this case. The first question that calls for an answer in respect of issue No.1 formulated by Mr. Falana is whether the lower court rightly held that the allegation of examination malpractice leveled against the respondent by the authorities of the appellant University was criminal in nature.

By exhibit P5 – an internal memorandum dated the 3rd day of May, 2002 and signed by one Mrs. O. F. Olukunle, Secretary of the appellant’s Disciplinary Panel on Examination Malpractices, the respondent and 9 (Nine) other persons were informed as follows:

“I write to inform you that the University Management has set up a Disciplinary panel to determine the level of involvement of members of staff of Mining Engineering Department in the alleged case of examination malpractice preferred against Mr. Igenuma, V. in the Department.”

The appellant was accordingly “requested to appear before the Disciplinary Panel on Tuesday, 9th May, 2002 at 12.40pm in the Council Chambers to give us the necessary information that would assist the panel in its investigation”.

From the foregoing, there is no gainsaying that the appellant was as at 2002 May being investigated for alleged examination malpractices involving one Mr. V. Igenume’ then a student of the Department of Mining Engineering of the appellant University.

Therefore, the lower court rightly held that the allegation leveled against the respondent was of criminal substance or nature.

The question that follows immediately is, therefore, whether the appellant could investigate this criminal allegation leveled against the respondent and proceed to dismiss him (the respondent) without any recourse to a competent court or tribunal. Mr. Fakunle, learned counsel for the appellant argued that prosecution of the respondent “before a court of law is not a sine qua non to the exercise of power of summary dismissal by an employer for gross misconduct”. Learned counsel referred the court to the cases of ESIAGA v. UNIVERSITY OF CALABAR (2004) 7 NWLR (Pt.872) 866 and ARINZE V. FIRST BANK OF NIGERIA PLC (2004) 12 NWLR (Pt. 888) 663. On the other hand, Mr. Falana, learned counsel for the respondent held a view diametrically opposed to that of Mr. Fakunle. Mr. Falana referred to the cases of YUSUF GARBA V. UNIVERSITY OF MAIDUGURI (1935) 2 NWLR (pt. 18) 559 at 596 and F.C.S.C. V. LAOYE (1989) 2 NWLR (Pt. 106) 652 and argued that “the only situation where a public officer can be dismissed without trial is where the person so accused accepts his involvement in the criminal allegation revered (sic) against him”.

I have read the legal authorities cited and relied upon by both parties to this case. The cases cited by the appellant in respect of this issue are grossly unhelpful to the appellant’s case. For example, the case of CHIEKWE IKWUNZE ESIAGA v. UNIVERSITY OF CALABAR & 2 ORs. (2004) 7 NWLR (pt. 872) 366 (not 866), the appellant a final year student was suspended pending a date that he would be invited to appear before a panel for alleged membership of a banned secret cult, after the uniform or insignia of a secret cult and a short gun cartridge in box belonging to him were found in his wardrobe upon a search of his hostel room. His roommates signed as witnesses that the items belonged to the appellant. The recovered items were sent to the Commissioner of police in charge of Cross River State for necessary or appropriate action. The appellant was aggrieved with his indefinite suspension and applied for the enforcement of his fundamental rights claiming that he was not heard before his suspension and prayed that the same be set aside. The trial High Court granted the appellant’s relief but the Court of Appeal dismissed the appellant’s suit. Upon appeal by the appellant to the Supreme Court, it was held at page 39, per KALGO JSC, inter alia as follows:

“It is also without any iota of doubt that the appellant was not charged with any criminal offence by the Vice Chancellor or the University Council. The letter of the Vice Chancellor… to the appellant was clear. It merely stated that the possession of the 3 items alleged to have been found in the appellant’s wardrobe may constitute a criminal offence, and realizing that he had no jurisdiction to try any criminal offence, he sent the items… to the Commissioner of Police to take appropriate action. It cannot therefore be said by any stretch of imagination that the Vice Chancellor, by taking such steps, has charged the appellant with any criminal offence. His action in suspending the appellant…. was an administrative action intended to ensure good and stable administration of the institution which he was empowered to do. In the Garba v. University of Maiduguri this court recognized the fact that suspension of student in a University is an internal affair of the University to enhance good administration and not necessarily a disciplinary measure. In any case a suspension is not a charge of criminal offence and the appellant was not on trial then”.

On the other hand, the issues in the cases of GARBA v. UNIVERSITY OF MAIDUGURI (supra) and FEDERAL CIVIL SERVICE COMMISSION (F.C.S.C) V. LAOYE (supra) are very relevant and applicable to the present case.

The Supreme Court, per NNAMANI, JSC held in GARBA v. UNIVERSITY OF MAIDUGURI (supra) as follows:

“As I indicated earlier the offences for which the appellants were undoubtedly held liable by the Board and the panel included looting, arson, destruction of property and indecent assault. These are offences under the panel code and therefore are triable only by the regular courts of law. Neither the investigating Panel which investigated these serious charges nor the disciplinary Board of the senate which considered its finding is a court of law. Neither of them was competent to adjudicate on matters connected with the rights of the appellants once the allegations intruded crimes”

However, in the case of F.C.S.C. v. LAOYE (supra) the Supreme Court qualified the principle of law set down in previous decisions including GARBA V. UNIVERSITY OF MAIDUGURI (supra) by adding that if the person to be disciplined in respect of allegations of criminal nature accepts liability, the necessity prior for a trial and conviction by a competent court or tribunal is obviated. In F.C.S.C. v. LAOYE (supra) the Supreme Court held, inter alia as follows:

“The decision in Garba v. University of Maiduguri (1986) 1 NWLR (pt 18) 550 should however not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved care must be taken that the provision of Section 33(4) of the 1979 Constitution are adhered to. where the person so accused accepts his involvement in the act complained of, no proof of the criminal allegation against him would be required… He could face discipline thereafter… ”

It seems clear to me, therefore, that an employee, whose employment is spiced with statutory anointing, cannot be disciplined by way of dismissal based on allegations bordering on legal criminality without his criminal liability first established by a competent court or tribunal, unless such employee admits liability.

In the present case the accusation of examination malpractice leveled against the respondent bordered on crime with penal punishment. The respondent having denied any liability was not liable to be disciplined by an outright dismissal without a court of law previously pronouncing him guilty.

Issue No.1, as formulated by the respondent and which issue fully covers the first issue distilled by the appellant, is hereby resolved in favour of the respondent against the appellant.

RESOLUTION OF ISSUE NO.2

I have already summarized the arguments of Messrs Fakunle and Falana, respectively on this issue.

The facts as they relate to this issue are that by exhibit p5 – an internal memorandum dated 3rd May, 2002 the appellant invited the respondent to appear before its (appellant’s) Disciplinary Panel on Examination Matpractices on the 9th day of May, 2002 at 2.40 pm. The respondent – Dr. R. A. Osemenam responded by exhibit P5 – a letter signed on the 7th day of May, 2002 in which he demanded “The terms and reference of the panel” and “The names of members of this panel”. The appellant did not furnish the respondent with the said information. However, by exhibit P7 – an internal memorandum dated 28th August, 2002 the respondent was informed that the appellant’s Vice Chancellor had “received and considered the report of the panel” which “had reported your level of involvement in the examination malpractices” and it was accordingly ordered that the respondent’s “response should reach me within 72 hours of the date of this letter”.

The respondent responded the following day by a letter dated 29th August, 2002 admitted in the lower court as exhibit P8. In exhibit p8, the respondent wrote, inter alia, as follows:

“1. Please kindly give me the terms reference and the names of the members of the panel you claimed to have indicted me on examination malpractices”.

The evidence before the lower court showed that the appellant never acceded to the respondent’s request but issued a letter dated 8th November, 2002 titled “RE-INVITATION FOR INTERACTION” and which letter was admitted by the trial court as exhibit P9. Part of exhibit p9 reads thus:

“On 11th April, 2002, the vice-chancellor constituted an investigation Panel on Examination Malpractices under the Chairmanship of Prof. T.L. Olawoye.

Consequent upon the report submitted by that panel, a Disciplinary committee on Examination Malpractices was set up on 8th August, 2002, primarily to consider the report and make appropriate recommendations.

You are therefore kindly invited to interact with the committee on Tuesday 12th November, 2002 at 10.40 a.m. in the Vice-Chancellor’s Committee Room”.

The respondent replied to exhibit P9 by a letter dated 10th November, 2002 admitted as exhibit P10 in which he wrote inter alia as follows:

1. It is not clear to me the type of invitation for interaction, you are inviting me. Please kindly be very explicit on that.

2. I am not aware of any report from the Investigation panel on Examination Malpractices set up by the vice-chancellor under the Chairmanship of prof. T. L. Olawoye. Please kindly make available a copy of such report to me.

3. With due respect to your committee Sir, it will be very necessary to furnish me with the panel’s terms of reference and the composition of its members.”

The appellant through an internal memorandum dated 13th November, 2002 – exhibit PL1 wrote inter alia that:

“Your request for a copy of the letter report is not within the powers of this panel to grant.

It is therefore advisable all the same that you should appear before the Panel on Friday 15th November, 2002 at 10.00am for the said interaction with you.”

From the documentary evidence before the trial court, it is clear that the respondent, in a desperate effort to ensure that he was given a full and fair hearing on the allegations against him requested, through his Solicitors – Falana & Falana Chambers, vide exhibits P13 and P15 letters dated September 29, 2003 and November 10, 2003 respectively in which certain demands were made. In exhibit P13, for instance, the respondent’s solicitors demanded, inter alia, as follows:

“… kindly furnish us with the particulars of the criminal offence of examination malpractice, name of the complainant, the list of witnesses and all relevant documents to enable our client to prepare for his defence.”

In exhibit P15, the respondent’s solicitors requested for five specified documents and proceeded to suggest that the appellant’s committee on the allegation of misconduct against the respondent could “sit on December 8, 2003 to consider the case of our client.”

On exhibits P13 and P15 the learned trial judge held that “the Defendant did not give a reply to these two letters.” The learned trial judge then proceeded to find and hold as follows:

‘The Plaintiff from the evidence before me appeared before the panel and pleaded for a legal representation which request was later considered and a recommendation made to the management to afford the plaintiff the needed services of a lawyer. The Defendant’s witnesses would however not know if this was communicated to the plaintiff as the committee recommended. The evidence of DW7 is instructive. He testified that the Plaintiff was written the second time to appear before the panel and he did only to request for legal representation. The panel recommended that the plaintiff be given 30 days to produce his lawyer but DW7 would not know if such was communicated to the Plaintiff as it was not the duty of the panel to communicate same to the plaintiff. It is the duty of the Registrar of the University to do so.

The registrar of the university is DW8 who wrote Exhibit D6 to the Plaintiff, she did not in that letter honour the recommendation of the panel granting the plaintiff’s request for legal representation by giving him 30 days to come with his lawyer. Rather than giving effect to this recommendation, DW9 wrote in Exhibit D6 intimating the plaintiff that the panel before which he appeared had become functus officio and another one had been constituted by the council to investigate the allegation against the Plaintiff.

The committee which recommended that the plaintiff be given 30 days to produce his lawyer is the Appointment and Promotions Committee. The committee was not given the time to complete its assignment to get the Plaintiff interviewed through his lawyer before the council inaugurated another committee entitled ‘The Joint Committee of Council and Senate” before DW8 wrote on behalf of the council to the Plaintiff to appear.

It should be noted that this clear and elaborate finding of the trial court was not challenged by the appellant. It should be further noted that without being allowed to fully defend him, either by himself or through his lawyer(s), against the serious criminal allegations leveled against him, the appellant, even before the 8th day of December, 2003 suggested by Mr. Femi Falana (in exhibit P15), proceeded to dismiss the respondent on the 27th day of November, 2003 vide a letter dated same day. The letter dismissing the respondent was admitted in evidence in the court below as exhibit P16. The said letter titled “DISMISSAL” is hereby fully reproduced as follows:

“Council at its 73rd Statutory Meeting held on Thursday, 27th November, 2003 considered the report of the Joint Council/Senate Committee to which you were given opportunity to make representation in respect of the allegations against you.

Council after considering the report, found you culpable of gross misconduct for which the penalty is dismissal in line with the University statutes.

Council has directed that you be dismissed from the employment of the Federal University of Technology, Akure, with effect from 27th November, 2003.

Accordingly, you are hereby dismissed with immediate effect. Kindly hand over all University properties in your possession to your Head of Department.

Thank you.

(SGD)

Dr. (Mrs.) E.F. Oyebade,

Registrar and Secretary to Council.”

As can be seen from the content of exhibit P15, the appellant found the respondent “culpable of gross misconduct” and dismissed him accordingly. Therefore, the appellant exercised judicial or quasi judicial functions and powers in respect of criminal allegations and in the ‘Judicial” process the respondent was found “guilty” and accordingly “sentenced” to summary dismissal.

I wish to state at this stage that I agree with Mr. Fakunle, learned counsel for the appellant that Section 14 of the Federal University of Technology Akure Act, Cap. 143, Laws of the Federation of Nigeria, 1990 “regulates disciplinary procedure of academic staff” of the appellant University. Section 14(1) of the said Act provides thus:

“If it appears to the council that there ore reasons for believing that any person employed as o member of academic, administrative or professional staff of the University, other thon the vice-chancellor, should be removed from his office or employment on 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 so requests 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 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 on instrument in writing signed on the directions of the Council.”

I have stated earlier in this judgment that the appellant had no right to treat the criminal allegation of examination malpractice against the respondent as the domestic or internal affair of the appellant University. Since the allegation bordered on criminality with penal sanctions, it was only an ordinary court established in accordance with the Constitution and our laws that was clothed with jurisdictional competence to try the allegation, make judicial pronouncement on it and thereafter disciplinary procedure could follow. The rationale for this was given by the Supreme Court in F.C.S.C. V. LAOYE (supra) where the apex court stated thus:

‘The jurisdiction of ordinary court to try any allegation of crime is radical and fundamental tenet of the Rule of Law and cornerstone of democracy. If the executive branch is allowed to operate through… executive investigation panels that surely will be a very dangerous development. This court cannot be a party to such dangerous innovation. It is only when one is at the receiving end that he can fully appreciate the wisdom in that aspect of yusuf Garba’s case, the court ought to strengthen and fortify it.”

In contravention of the clear principle of law that allegations bordering on criminality ought to be first tested and clarified in competent courts of law, the appellant constituted itself into a “court” and “convicted” the respondent. In the process the respondent was completely denied his fundamental right to fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 which provides thus:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

By Sub-Section (6) of Section 36 of the said Constitution any person charged with a criminal offence shall be informed in detail of the nature of the offence; be given enough time and facilities to prepare his defence; be entitled to defend himself either by himself or through a legal practitioner of his choice and to cross-examine witnesses called by his adversaries and to also call and examine his own witnesses. In the instant case, as the facts summarized above clearly show, the respondent was denied all these rights. There was no fair hearing in this case.

In the case of YUSUFU GARBA & ORS. V. UNIVERSITY OF MAIDUGURI (supra) while interpreting Section 33 of the Constitution of the Federal Republic of Nigeria, 1979 which Section is in pari materio with Section 36 of the 1999 Constitution, the Supreme Court summarized the ingredients of fair hearing when it held that:

Fair hearing implies that –

(a) A person knows what the allegations against him are.

(b) What evidence has been given in support of such allegations?

(d) Such person has a fair opportunity to correct and contradict such evidence.

(e) The body investigating the charge against a person must not receive evidence behind his back.

The appellant in this case denied the respondent the right to know the terms of reference of the panel set up to investigate the allegations leveled against him; the names of the members of the panel; right to a legal practitioner of his choice; adequate opportunity and the materials to prepare for his defence; the right to cross-examine witnesses who testified against him and the right to present his own witnesses (if any). Please, See exhibits p6, p8, p10, p13 and p15 and the unchallenged findings of the trial court from pages 17 to 20 of the judgment – pages 146 – 149 of the record of appeal.

Under the circumstances of this case I cannot fault the finding of the learned trial judge when he held thus:

“From the totality of the evidence before me, I hold that the Plaintiff was not afforded fair hearing in the whole process leading to his dismissal in Exhibit “P16.”

The scenario of this case leaves a sour taste in the mind and mouth of a right-thinking person. It is a case of denial, by the University Court, of the respondent’s right to fair hearing from the beginning to the end of the matter culminating in the dismissal of the respondent.

The law is well settled that any lecturer accused of any misconduct must be given fair hearing as highlighted hereinabove before disciplinary action against him can be valid. Where, for example, the lecturer so accused is denied the details of the allegations against him and or is disallowed from making representation to University authorities or Council, termination of such a lecturer’s appointment would be nullified. See OLANIYAN V. UNIVERSITY OF LAGOS (supra) and EPEROKUN V. UNIVERSTTY OF LAGOS (supra).

It was wrong to take a radical decision such as summary dismissal of an academic staff that had put in up to 12 years in service without giving him a fair hearing. Whenever a University, such as the appellant, decides to undertake and indeed undertakes to take disciplinary action against any member of its academic staff on allegation or accusation bordering on criminal offences, the University has set a serious examination for itself and the rubric thereof should be strictly followed as required by the litany of decisions of the Supreme Court, some of which have been referred to in this judgment. It should never apply an amorphous procedure as done in the instant case. Those who lightly toy with the rights of their colleagues in releckless manner, thereby denying and depriving them of their fundamental rights should always bear in mind the admonition in one of the Holiest Books in the word – the Holy Bible. It is written in Matthew Chapter 7, verses 1 and 2 as follows:

“Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.”

I am not saying that lecturers cannot or should not be disciplined. There must be discipline in the University system, otherwise this Nation is doomed. Discipline of lecturers and students should follow due process and procedure as laid down in the cases hereinabove cited. Discipline is not matter to be handled maliciously.

Without discipline there will be no deterrence and indiscipline will be the order of the day in our Universities. This will be very dangerous for the Nation today and tomorrow. Indiscipline and fraudulent activities in our Universities should be discouraged by all.

In exercising its disciplinary power, however, a University as the appellant University ought not to employ same maliciously or merely as a tool for victimization, cruelty or tyranny.

Mr. Falana argued that “in the case on hand the Appellant set out ob initio to disregard its own law in its clearly orchestrated design to dismiss the Respondent from the service of the University”. There was no response or serious response from the appellant on this serious allegation. The way and manner the appellant rushed the entire process speaks volumes of how some persons or group of persons can brazenly abuse powers conferred on them for the good of society.

In the present case the appellant “rushed” justice and “crushed” same and the respondent was denied justice. In the words of LORD HOPE (COMMONWEALTH MAGISTRATES AND JUDGES ASSOCIATION CONFERENCE, Accra, Ghana, 2005) “Justice rushed is justice crushed”.

This issue is also resolved in favour of the respondent against the appellant. CONCLUSION

I hold that the appeal lacks merit and it ought to be dismissed. The appeal is hereby dismissed accordingly.

The judgment of the lower court is hereby affirmed.

The sum of N100, 000.00 is hereby awarded as costs in favour of the respondent against the appellant.

NWALI SYLVESTER NGWUTA, J.C.A.: I read the draft of the lead judgment just delivered by my learned brother Adumein, JCA. His Lordship decisively and conclusively dealt with the two related issues identified in the appeal.

I will add a few words if only for the purpose of re-emphasis. The Respondent was “tried and “convicted” on allegation of examination malpractice, a serious criminal offence. The Appellant who tried and convicted the Respondent is not by any stretch of imagination, “a court or other tribunal established by Law and constituted in such manner as to secure its independence and impartiality” see S. 36 (1) of the constitution of the Federal Republic of Nigeria 1999 as amended.

The mere fact of trial and conviction of the Respondent by the Appellant, not being a court or other tribunal established by Law amounts, without more, to a denial of fair trial to which the Respondent is entitled under the provision of S. 36 (1) of the Constitution (supra).

The trial itself is tainted with not only likelihood, but also probability, of bias. See Medical & Dental Practitioners’ Disciplinary Tribunal v. Dr. J.E.N. Okonkwo (2001) 85 LRCN 908 AT 940, Denloye v. Medical & Dental Practitioners’ Disciplinary Committee (1968) 1 All NLR 306 at 365, Saketun v. Akinyemi & 3 Ors (1980) 5-7 SC 1.

In dealing with the Appellant as it did in a matter that is a criminal offence the Respondent violated the principal that “nemo est supra leges” by acting and placing itself above the Law, particularly S. 36 of the constitution.

The Appellant arrogated to itself the power to be a judge in its own cause in violation of the time – honoured principle of “nemo judex in causa sua” (no one should be a judge in his own cause). On the facts of the case the Appellant was the complainant, it investigated its own complaint, played a double role as the prosecutor and the judge and finally executed its own judgment.

From the above and the fuller reasons adumbrated in the lead judgment I also dismiss the appeal. I adopt the order for costs.

CHINWE E. IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, Moore A.A. Adumein JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. I also hold that the appeal lacks merit and should be dismissed. It is hereby dismissed. I abide by the order of cost in the lead judgment.

Quite frequently, institutions of higher learning are faced with the kind of situation that arose in this case. These institutions do not have the power to deal with criminal matters; otherwise they would be in violation of the Constitution of the land. Once the allegation against the person sought to be disciplined is criminal in nature, all the institution can do is exercise its administrative power to suspend the staff pending the determination of the criminal charge by a court of competent jurisdiction. The exception however is where the staff admits committing the criminal offence in which case no further proof would be required. FEDERAL CIVIL SERVICE COMMISSION v. LAOYE [1989] 2 NWLR (Pt 106) 652

Appearances

OLAGOKE FAKUNLE, ESQ.For Appellant

AND

FEMI FALANA, ESQ.For Respondent