MR. SYED QAMAR AHMED v. AHMADU BELLO UNIVERSITY (ABU) & ANOR (2016)

MR. SYED QAMAR AHMED v. AHMADU BELLO UNIVERSITY (ABU) & ANOR

(2016)LCN/8198(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of February, 2016

CA/K/113/2014

RATIO

LABOUR LAW: TERMINATION OF EMPLOYEE’S STATUTORY EMPLOYMENT; WHAT CAN AVAIL THE EMPLOYER THE RIGHT OF UNILATERAL AND SUMMARY DISMISSAL OR ABRUPT TERMINATION OF THE EMPLOYEE’S STATUTORY EMPLOYMENT
It is only acts which are grievous enough to constitute gross-misconduct that avails the employer the right of unilateral and summary dismissal or abrupt termination of the employee’s statutory employment. per. AMINA AUDI WAMBAI, J.C.A.

LABOUR LAW:GROSS MISCONDUCT; THE DEFINITION OF AN ACT GROSS MISCONDUCT
An act of gross misconduct has been defined as a conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct, which would entitle the employer to summarily dismiss the employee. NWOBOSI V. ACB LTD (1995) 7 SCNJ 92, OLANIYAN V. UNIVERSITY OF LAGOS (SUPRA), SULE V. NIG. COTTON BOARD. per. AMINA AUDI WAMBAI, J.C.A.

LABOUR LAW: WHETHER THE POWER TO SUMMARILY TERMINATE THE APPOINTMENT OF ITS EMPLOYEE IS VESTED IN THE COUNCIL

However, the power vested in the Council to summarily terminate the appointment of its employee for gross misconduct, is not unfretted, but is subject to the provision of Paragraphs (e) and (f) setting out the procedure for the termination. In other words, the power must be exercised within the confines of the procedure prescribed in Paragraph 5 (e) and (f) to ensure an even balance between the Respondent’s right of dismissal and the employee’s right to fair hearing as preserved by Section 36 (4) of the 1999 Constitution and the Rules of Natural Justice. This has to be so because there is a presumption in Law that whenever 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. GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550, OLANIYAN V. UNVERSITY OF LAGOS (supra), SHITTA-BEY V. F.P.S.C. (1981) 1 SC. per. AMINA AUDI WAMBAI, J.C.A.

CONDITION PRECEDENT: THE DEFINITION OF CONDITION PRECEDENT
The Blacks law Dictionary 6th Edition defines a condition precedent as one:-
“Which must happen or be performed before the estate to which it is annexed can vest to be enlarged, or it is one which is to be performed before some right dependent thereon occrues or some act performed.”
Thus, a condition is a provision which makes the existence of a right dependent on the happening of an event; the right is said to be conditional as opposed to a right that is absolute. A condition precedent is one which delays the vesting of a right until the happening of an event, see ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt.522) 562 per Uwais CJN (as he then was). per. AMINA AUDI WAMBAI, J.C.A.

LABOUR LAW: ALLEGATION OF GROSS-MISCONDUCT; WHETHER AN EMPLOYEE IS ENTITLED TO SET UP AN INVESTIGATIVE PANEL IN THE CASE OF AN ALLEGATION OF GROSS-MISCONDUCT

It is to be stated that where as in this case an allegation of gross-misconduct is leveled against an employee, the employer is entitled to set up an investigative Panel or refer the allegation to an established Committee for investigation. Therefore, the Respondent not being satisfied with the Appellants explanation in Exhibits F and H, was entitled to refer the matter to a Committee established for that purpose to look into and make recommendations to the Council. EDET V. CHIEF OF STAFF (1994) 2 NWLR (Pt.324) 41, 59, BABA V. N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388, 418. per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MR. SYED QAMAR AHMED Appellant(s)

AND

1. AHMADU BELLO UNIVERSITY (ABU)
2. THE VICE CHANCELLOR, AHMADU BELLO UNIVERSITY, ZARIA Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the National Industrial Court of Nigeria sitting in Kano in suit No. NICN/KN/7/2011 delivered on 11th September, 2013 by M. N. ESOWE J, wherein the learned trial judge entered Judgment in favour of the Respondents against the Appellant affirming the dismissal of the Appellant’s appointment by the Respondents.

The Appellant, as Claimant at the Lower Court, sought against the Respondents (as Defendants), the following reliefs:
WHEREOF the Claimant claims against the defendants jointly and severally as follows:-
“(a) A Declaration that the dismissal of the plaintiff by the Defendants from the services of the 1st defendant vide their letter referenced p.16,773 of 6th day of June, 2011, is in violation of the Ahmadu Bello University Law; it is therefore invalid, null and void and of no effect whatsoever.
(b) An Order of the honourable Court setting aside the letter of dismissal of the claimant dated the 6th day of June, 2011.
(c) A Declaration that the claimant is still in lawful employment of the 1st Defendant on the 7th

day of February, 2012.
(d) An Order of the Honorable Court setting aside the decision of the 1st Defendant’s Council at its 145 (Regular) meeting held on 28th and 29th day of March, 2011, contained in the letter reference No. P.16,773 of 6th day of June, 2011.
(e) An Order reinstating the Claimant to his office and position Lecturer ii in the Department of Mathematics forthwith.
(f) An Order of this honourable Court directing the defendants to pay all the entitlement of the Claimant from the date of the purported dismissal till the 6th day of February, 2012 when his contract with 1st Defendant will come to an end by way of damages for breach of contract.
(g) Cost”.

The facts of the case as can be gleaned from the record are that the Appellant was by virtue of a letter dated 3rd January 2000, employed as a full time Lecturer II (2) in the department of Mathematics of the 1st Respondent, for a term of 2 years, renewal by mutual agreement. His contract letter contain terms and conditions including clauses in the letter which made the employment subject to the Ahmadu Bello University Laws, Statutes and Regulations. The contract was

severally renewed, the last renewal being 07/02/2010 to expire on 06/02/2012. The Appellant served the 1st Respondent diligently in that manner for a period of 11 years. Suddenly he received a letter of query from the Respondents accusing him of collecting money from students to award them with higher grades than they scored in their exams; he denied the allegation. Subsequently, the Respondent again served him another Query dated 1st March, 2011 alleging extortion of money from the students. Again, he promptly answered on 2nd March, 2011 denying the allegation.

?On 22nd March, 2011 while the Appellant was performing his duties he received a letter inviting him to appear before the 1st Respondent’s disciplinary Committee, consequent upon which the Appellant and some students appeared and all denied the allegations against the Appellant. However, based on the report and recommendation of the Senior Staff Disciplinary Committee the Respondents finally issued and served the Appellant a Dismissal letter dated 6th June, 2011, dismissing him from the services of the 1st Respondent with immediate effect. That dismissal, the Appellant challenged at the Lower

Court on the ground that it is in breach of the contract he had with the Respondents and in contravention of the regulations governing the condition of appointment of Senior staff of the 1st Respondent and the Ahmadu Bello University Law, CAP A14 Laws of the Federation of Nigeria.

At the trial, Appellant testified for himself as PW1 and tendered hosts of exhibits. Also on their part, the Respondents called a witness, Samaila Abdullahi Barau who testified as DW1 and tendered several documents as exhibits to support their case. Addresses were filed and judgment delivered. In dismissing the Appellant’s case, the learned trial Judge held inter alia thus:
“It is my respectful view that the natural consequence of the above provision is that once it is established that the 1st Defendant has followed all the procedures laid down by its statute for the dismissal of its employee, such employee is not entitled to any reliefs from it. This Court too so holds in this case…. To the Court, all the above steps taken by the Defendants was to give the Claimant the opportunity of hearing his own side of the story as regards the allegation leveled against him,

consequently granting him fair hearing before Council of the 1st Defendant took it’s decision in respect of the said allegation…..”

Dissatisfied with the Judgment, the Appellant commenced this appeal through a notice of appeal dated 11/9/2013 predicated upon four grounds. He later sought and was granted leave to amend the notice of appeal on 17/4/2014, and the said amended notice contains six grounds.

Pursuant to the rules of this Court, both parties through their Counsel filed and exchanged their briefs of argument. The Appellant’s brief of argument dated 10/11/2014 was settled by S. J. Gani Esq. and filed on 11/11/2014, while the Respondent’s brief of argument dated 14/4/2015 was settled by Kayode Amodu Esq. and deemed properly filed on 30/6/2015.

In response, the Appellant filed the Appellant’s reply brief dated 2/11/2015, on the 3rd November, 2015.

In his brief of argument, the learned Appellant’s Counsel formulated a sole issue for determination thus:-
1 “Whether considering the facts of this case the learned trial judge is right by holding that the Appellant was given a fair hearing by the Respondents before dismissing the

Appellant”.
On their part, the Respondents in their brief of argument also distilled from grounds 1 and 2 a lone issue for determination to wit:-
1. “Whether the learned trial judge was right in holding that the Appellant was given a fair hearing by the Respondents and that the dismissal was lawful”.
At the hearing of the appeal on 29/1/2016 learned Counsel for the Appellant adopted his brief of argument and the reply brief as his argument and urged us to allow the appeal. The learned Counsel for the Respondent also adopted his brief of argument and urged this Court to dismiss the appeal.

In his reply brief, Counsel for the Appellant challenged the competence of the sole issue raised by the Respondent’s Counsel on the ground that the Appellant having not distilled any issue from grounds 2, 3 and 4, the said grounds are deemed abandoned, relying on NWOKEARU V. STATE (2013) 5 SCNJ525, 548, LINES 27-31. Accordingly, the said issue which touches on the abandoned ground 2 renders the issue incompetent and liable to be struck out, citing OSAFILEV. ODI (1994) 2 SCNJ 1 @ 9.

Similarly, the said issue having been formulated from both competent

and incompetent grounds, he further contended, renders the issue incompetent citing the cases of ANAGWU V. INEC (2012) All FWLR (Pt.652) 1689 @ 1710-7711 H-D and AYALOGU V. AGU (1998) 1 NWLR (Pt.532) 129 per Salami JCA (as he then was).

Learned Counsel urged that the Respondent’s issue be struck out and the appeal determined based on the Appellant’s brief of argument.

The law is quite settled that a ground of appeal from which no issue is distilled, is deemed abandoned and liable to be struck out. Such a ground ought to be struck out. This is indeed a trite principle of Law that the Court will suo moto discountenance or strike out such a ground or grounds without any formal application from Counsel. EMESPO J. CONT. LTD V. CORONA S & CO. (2006) 11 NWLR (PT.991) 360, NWOKEAPE V. THE STATE (SUPRA), UNITY BANK PLC V. DENCLAG LTD & ANOR (2012) LPELR – 9729 (SC).

It follows that the Respondent cannot formulate an issue from an abandoned ground of appeal which is struck out or deemed struck out and “a fortiori”, cannot canvass any argument thereon. All arguments outside the issue formulated by the Appellant’s Counsel is hereby discountenanced, I

shall therefore consider this appeal on the lone issue formulated by the Appellant’s Counsel.
WHETHER CONSIDERING THE FACTS OF THIS CASE THE WARNED TRIAL JUDGE IS RIGHT BY HOLDING THAT THE APPELLANT WAS GIVEN A FAIR HEARING BY THE RESPONDENTS BEFORE DISMISSING HIM.
Arguing the sole issue, the learned Counsel for the Appellant submitted that the Appellant was employed by the Respondents on the 3rd January, 2000 by a letter of the same date as reproduced at page 51 of the records.

It was the submission of the learned Counsel to the Appellant that by Paragraph 2 of the letter of appointment, the Appellants employment was made subject to the provisions of the Ahmadu Bello University Laws, Statutes, Ordinances and Regulations made from time to time governing the conditions of appointment of Senior Staff of the University. Also by Paragraph 6 of the said letter, the commencement, and determination of the appointment was to be governed by the provisions of Section 3 of the Regulations Paragraph (f) thereof which allows the Council to terminate appointment of a Senior Staff before date of expiry, only in accordance with the University Statutes.

These provisions of the letter of appointment as well as those of the University Laws Counsel argued, gives the contract of service a statutory flavor and confers on the Appellant a special status over and above the normal master and servant relationship, the termination of which appointment must comply strictly with the laid down procedure of the 1st Respondent (the University) as provided in Section 8 Paragraph 5(e) and (f).

He complained that the process of dismissal of the Appellant initiated by two letters of query accusing the Appellant of extortion which he answered, followed by a letter inviting the Appellant to appear before the Senior Staff Disciplinary Committee (now simply referred to as S.S.D.C) which he did and the subsequent letter of 6th June, 2011 dismissing the Appellant from the employment of the 1st Respondent based upon the report and recommendation of the S. S. D. C. is improper, wrongful and in violation of the 1st Respondent’s Laws and Regulations.

While Counsel concedes that a servant who complains that his employment has been wrongfully terminated must found his claim on the contract of service and show in what manner the

wrong was alone, he contended that by Paragraph 5 of the statement of claim which the Respondent admitted in Paragraph 1 of the statement of defence, the contract of employment is one with a statutory flavour which can only be terminated by strict adherence to the statutory provisions. He referred to IDERIMA V. RIVERS STATE (2005) 7 SCNJ 493 @ 505 lines 6-9 per Onu JSC, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599, IDONIBOYE-OBU V. NNPC (2003) 87 SCNJ 87.

Counsel maintained that the Respondent did not comply with the procedure in statute 8 Paragraph 5 before dismissing the Appellant, in that rather than the joint Committee of the Council and the Senate inviting the Appellant to appear before it, the Appellant was invited by the S.S.D.C. and further, that the Council acted on the Committee’s report without hearing the Appellant before dismissing him, thereby denying the Appellant his right to fair hearing, citing in support the cases of OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 6 SCNJ 1, @ 47 Lines 9-15, wherein Adekeye JSC adopted the earlier decision of the Court in UNIVERSITY OF NIG. TEACHING HOSPITAL MANAGEMENT BOARD (UNTHMB) V. NNOLI

(1994) 8 NWLR (PT.363) 376, @ 404 PARA F – G and held that a distinction must be drawn between the recommendation of an investigating Panel which has no statutory powers and the action on the recommendation by the statutory body with statutory powers, which makes it mandatory for the statutory body to comply strictly with the Rules of natural justice.

Cumbersome as the procedure may be, Counsel argued that the procedure must be strictly complied with, without any short cuts, otherwise the whole exercise would be futile. He cited OLANIYAN V. UNIVERISTY OF LAGOS (supra) per Aniagolu JSC.

We were urged to set aside the decision of the 1st Respondent’s Council held at its 145th Regular Meeting of 24/05/2011 and declare the purported dismissal as null and void, the Appellant’s entitlement from June 2011 to February 2012 as due and payable and on the authority of IFETA v. SHELL-PETROLEUM (2005) 4 SCNJ 111, 124 @ LINE 34-125 to order the reinstatement of the Appellant since the 1st Respondent by virtue of Section 13(3)(k) of its Law has power to appoint and can thus reappoint or reinstate.

Respondents’ Counsel while conceding that the

employment was with statutory flavor, submitted that the Appellant’s dismissal was lawful in that before the Appellant’s dismissal, he was issued with two queries on 26/01/2011 and 1/03/2011 respectively. That the Respondents not being satisfied with the Appellant’s response to the said queries further invited him to appear before the Senior Staff Disciplinary Committee by its letter of 22/3/2011 which he did. He contended that all this was to ensure that the Appellant had opportunity of being heard, and that the Appellant appeared before the said Committee and had ample opportunity to defend himself.

Counsel further maintained that the Appellant was given fair hearing by the issuance of the queries and appearance before the Disciplinary Committee which is the independent body devoid of influence by the Council.

?The main issue in this appeal and upon which the determination of the appeal turns, is the propriety of the manner of Appellant’s dismissal by the Respondent. The Appellant’s grouse encapsulated in the lone issue postulated for our determination is that he was not accorded a fair hearing in accordance with the Ahmadu Bello University (1st

Respondent) Laws and Regulations before he was dismissed by the Respondents. The Respondents contend otherwise.

Generally, and this is elementary, the burden of proof in civil cases lies on the Plaintiff to prove what he asserts. This is an obligation placed upon him by law to present evidence in proof of the fact in issue the “the onus probandi”. Thus, a person who asserts must prove what he asserts to entitle him to his claim. OWIE VS. SOLOMON IGHIWI (2005) 5 NWLR (PT.917) 184, NWAVU & ORS VS. CHIEF OKOYE (2008) 18 NWLR (PT.1118) 29 SC.

In a claim for wrongful dismissal of an employee such as in the case in hand, the law is settled that an employee or servant who complains that his employment has been wrongfully terminated or abruptly brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not, in principle, for the employer who is a defendant, to prove that the termination was not wrongful. IDONIBOYE OBU VS. NNPC (SUPRA), NIG. GAS CO. LTD VS. DUDUSOLA (2005) 18 NWLR (PT.957) 292, OKOMU OIL PALM CO. LTD

VS. ISE RHEN-RHEN (2001) 6 NWLR (PT.710) 600, ZIIDEL VS. R.S.C.S.C. (2007) 3 NWLR (PT.1022) 544 SC.
This imposes on the Appellant the onus to:-
(a) Prove the employment;
(b) Place before the Court the terms of the contract of employment and;
(c) Prove in what way or manner the said terms were breached by the employer (Respondents).

The Appellant herein as the claimant before the Lower Court, pleaded the fact of his employment with the Respondent at Paragraph 5 of the statement of claim which the Respondents admitted in Paragraph 1 of their statement of defence. Indeed issues were not joined on the fact of the employment and terms of the said employment. Moreover, the Appellant placed before the Court the letter of employment Exhibit A, containing the terms and conditions of the employment.

Paragraph 2 of the employment letter states:
2. The appointment is subject to the provisions of the University Laws, statutes and ordinances made there under and to Regulations Governing the conditions of Appointment of Senior Staff made by the University Council from time to time. A copy of the current Regulations (referred to in

this letter as “the Regulations”) is enclosed”

The letter also makes provision for commencement and termination of the appointment in Paragraph 6, viz:-
ii. “The commencement and termination of the appointment will be governed by the provisions of Section 3 of the Regulation…”

Section 3(f)(i) of the relevant Regulation made by the 1st Respondent governing the condition of appointment provides:-
“An appointment may be terminated before its due date of expiry as follows:- (i) By the Council in accordance with the University statutes (the Ahmadu Bello University Act, Cap A 14 LFN, 2004)
Statute 8 Paragraph 5 provides;
“5. Subject to provisions of this statute and to the terms of his Appointment, no member of Senior Staff shall be dismissed save by the decision of Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment”.
Provided that:-
“(e) Before taking its decision, the Council shall receive and consider a report on the case by a joint Committee of the Council and Senate consisting of the Chairman of the Council as Chairman and equal members of the

Council and of the Senate.
(f) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council”.

It is clear from these terms and conditions of the contract that the contract of employment between the Appellant and the Respondents is subject to and governed by the Respondent’s laws, statutes and Regulations. The terms of employment including the conditions of service and termination of the employment are governed or regulated by the 1st Respondent’s laws, statutes and Regulations. This gives the employment special status over and above the ordinary master and servant relationship.

?An employment such as the one in hand which is covered or governed by the enabling statutory provisions, in that, the terms and conditions of employment or service have been specifically provided for and protected by the statute, is an employment with statutory flavour. A contract of employment in which the condition for appointment and determination of such appointment are governed by prescribed conditions in the relevant statute so that the terms are regulated by the provisions of the statute, is a

contract with statutory flavour.
Where therefore the terms and conditions of the contract of employment or service are specifically provided for by the statute or regulation made thereunder, the contract is said to be protected by statute or in other words an employment with statutory flavour. See Oloruntoba vs. Abdul Raheem (supra) per Adekeye JSC.
Kutigi JSC (as he then was) in Mrs. Fakuade v. O.A.T.H.C.M.B (1993) LPELR 1233 (SC) defined the term “contract with statutory flavor” thus;
“Where the conditions of appointment or determination of a contract is governed by the pre-conditions of an enabling statute such that a valid determination of the appointment of the Appellant is predicated on satisfying such statutory provision, the contract is with a statutory flavour”.
See also Olaniyan vs. University of Lagos (supra), Kwara Polytechnic Ilorin vs Shittu (2012) 11 WRN 26.
?
The said contract of employment, Exhibit A, as rightly conceded by the Respondent’s Counsel, is surely, an employment with statutory flavor, as evident by its terms and conditions as well as the provisions of the Respondent’s enabling statutes, Laws and Regulations

governing the said contract.
It follows that the Appellant as an employee of such an employment enjoys a special and higher legal status over and above the ordinary master and servant relationship in the matter of discipline, in that, the procedure laid down by the statute must be fully complied with. Such an employee with statutory flavour does not hold his office or employment at the pleasure of the employer but under the provisions and protection of the relevant statutes and regulations. Therefore in matters of discipline, the laid down procedure must be strictly adhered to, otherwise, any decision affecting the right, or repudiation or tenure, of office of the employee will be declared null and void. This Law has since been firmly settled by a long line of decisions of the Supreme Court such that in order to discipline an employee whose employment is protected by statute, the laid down procedure in the relevant statute or regulation must be strictly complied with.
The Apex Court aptly stated the law in UNTHB V. NNOLI (1994) 8 NWLR (Pt. 363) 376 SC that:-
“When an office or employment has statutory flavor in the sense that its conditions of

service ore provided for by statute or regulations made thereunder, 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 repudiation or tenure of office of that employee will be declared null and void”.
Similarly, the same Court reiterated the Law in IBAMA V. SPDC (NIG) LTD 2005 17 NWLR (Pt. 954) 364 when it held,
“An employment which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is in-consistent with the statute will be null and void and of no effect”.
See also Iderima v. River State (supra) Olufeagba v. Abdulraheem (2009) 18 NWLR (Pt.1173) 384 SC, Oluruntoba-Oju v. Abdulraheem (supra), U.N.T.H.M.B. v. Nnoli (Supra), Osisanya v. Afube (Nig) Plc (2007) 6 NWLR (Pt.1031) 565.
Thus, the only way such an employment can be terminated is in accordance with the applicable statutes and regulations but

no other way.

It is now apt to consider the ground and procedure laid down by the 1st Respondent’s statutes for terminating an employee’s employment before the expiry of the employment. This is provided in Statute 8 Paragraph 5 (e) and (f) of the 1st Respondent’s Act, earlier reproduced in this Judgment.
By virtue of Statute 8 Paragraph 5, no member of the Senior Staff shall be dismissed save by the decision of the Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of the office or employment.

The 1st Respondent is by this provision invested with the power to dismiss its erring staff for gross misconduct or inability to carry out the duties of his office. In exercising this power, the Law no longer draws any distinction between an ordinary master-servant employment and an employment with statutory flavor with respect to the right of the employer to summarily dismiss an employee for acts of gross misconduct. YUSUF v. UBN LTD (1996) 6 NWLR (Pt.457) 632. It is now settled that an employer can summarily and without any much ado, dismiss an employee in all cases of gross-misconduct provided that the

affected employee is given a fair hearing, whether the affected employee is in private employment or statutory employment.
ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (supra), (2007) All FWLR (Pt.243) 265, 266, FRANCUS ARINZE V. FBN LTD (2004) 12 NWLR (PT.888) 663.
It is however not every wrong doing, mistake or misconduct on the part of the employee that entitles the employer to use the big whip of dismissal on the employee.

Statute 8 Paragraph 5 is clear on this. It is only acts which are grievous enough to constitute gross-misconduct that avails the employer the right of unilateral and summary dismissal or abrupt termination of the employee’s statutory employment.
An act of gross misconduct has been defined as a conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct, which would entitle the employer to summarily dismiss the employee. NWOBOSI V. ACB LTD (1995) 7 SCNJ 92, OLANIYAN V. UNIVERSITY OF LAGOS (SUPRA), SULE V. NIG. COTTON BOARD.

Undoubtedly, the alleged act of extorting

money from some of his students to award them higher grades that they scored amounts to gross misconduct as it is capable of undermining the confidence that should exist between an employee and the employer.

This has to be so because there is a presumption in Law that whenever 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. GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt.18) 550, OLANIYAN V. UNVERSITY OF LAGOS (supra), SHITTA-BEY V. F.P.S.C. (1981) 1 SC.

?I shall

now examine the procedural requirements the Respondent has to fulfill before terminating, abruptly, the employee’s appointment, and for better appreciation and ease of reference, the said Paragraphs (e) and (f) are hereunder reproduced:-
“Provided that:-
“(e) Before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and Senate consisting of the Chairman of the Council as Chairman and equal members of the Council and of the Senate;
(f) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council”.
It is clear from these provisions that before a decision can be taken to dismiss an employee, the 1st Respondent (the Council) must have done two things, namely:-
(1) Received and considered a report of the JOINT COMMITTEE of the Council and the Senate on the case,
(2) Shall have given the employee reasonable opportunity of being heard.
The fulfillment of each of these 2 indispensable requirements are the conditions precedent to the lawful exercise of the employer’s right to terminate the employee’s

appointment before its due date.
?The Blacks law Dictionary 6th Edition defines a condition precedent as one:-
“Which must happen or be performed before the estate to which it is annexed can vest to be enlarged, or it is one which is to be performed before some right dependent thereon occrues or some act performed.”
Thus, a condition is a provision which makes the existence of a right dependent on the happening of an event; the right is said to be conditional as opposed to a right that is absolute. A condition precedent is one which delays the vesting of a right until the happening of an event, see ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt.522) 562 per Uwais CJN (as he then was).
Undoubtedly, unless and until each of these two necessary events take place, the exercise of the right vested in the employer to dismiss an employee, must be halted, delayed or put on hold. In other words, the exercise of the employer’s right to dismiss an employee is dependent on the fulfillment of these conditions set out in the proviso, Paragraph 5 (e) and (f).
These requirements are like the 2 keys that open the only gate through which a person can access his

house or exit therefrom. One key without the other cannot open the gate. To access the house or exit therefrom the person or occupant requires the two keys. Likening this to the power vested in the 1st Respondent by Paragraph 5 and the two conditions precedent to the exercise of that power as laid down in the proviso (e) and (f), the 1st Respondent cannot without fulfilling the two conditions, dismiss the Appellant. In essence, both the laid down procedure in (e) and the requirement of affording reasonable opportunity of being heard in (f) must conjunctively be fulfilled. It is not enough that one or the other of the two conditions is satisfied.

Now, the process of the Appellant’s dismissal was ignited by a letter of query dated 26/01/2011 (Exhibit E), accusing the Appellant of collecting the sum of N10,00.00 to assist a student on his assignment which the Appellant replied to and denied vide Exhibit F dated 28/01/2011. This was followed by another letter of query dated 01/03/2011 (Exhibit G) accusing the Appellant of gross professional misconduct by extorting various sums of money from some named students to award them with higher grades. The Appellant

responded on 02/03/2011 vide Exhibit H wherein he denied the allegation. Not being satisfied with his explanations in Exhibits F and H, the 1st Respondent by an invitation letter (Exhibit i) signed by I. T. Gyere, Secretary to the Senior Staff Disciplinary Committee, invited the Appellant to appear before the Senior Staff Disciplinary Committee (hence forth referred to as SSDC) to defend himself on the charge of extortion of monies from students which he did on 28th and 29th March, 2011. Thereafter, the Committee submitted its report and recommendations to the Council of the 1st Respondent. The 1st Respondent acting on the recommendation of the SSDC, dismissed the Appellant from its service with immediate effect, for gross misconduct.

Predicated on these facts and sequence, while the Appellants Counsel contend that the Respondent violated its Laws and the Appellant was not afforded fair hearing by the Council, the Respondent’s Counsel contends that the Appellant was afforded opportunity to defend himself of the allegation against him.

It is to be stated that where as in this case an allegation of gross-misconduct is leveled against an employee, the

employer is entitled to set up an investigative Panel or refer the allegation to an established Committee for investigation. Therefore, the Respondent not being satisfied with the Appellants explanation in Exhibits F and H, was entitled to refer the matter to a Committee established for that purpose to look into and make recommendations to the Council. EDET V. CHIEF OF STAFF (1994) 2 NWLR (Pt.324) 41, 59, BABA V. N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388, 418.

This is what the Respondent purportedly did by referring the matter to the S.S.D.C. for investigation as communicated to the Appellant vide Exhibit (i).

The pertinent question is whether the S.S.D.C. to which the allegation was referred and which submitted its report and recommendation to the Council is one and the same Joint Committee of the Council and the Senate referred to or envisaged in Statute 8 Paragraph 5 (e) of the Ahmadu Bello University Act.

For avoidance of doubt, the Committee specified in Paragraph 5 (e) from which the Council is to receive and consider the report and recommendations on the allegation against a Senior Staff, is a “Joint Committee of the Council and the Senate

consisting of the Chairman of the Council as Chairman and equal members of the Council and of the Senate”. [Underlining for emphasis only].

The response of the Respondent’s Council on this, is that the S.S.D.C. is an independent Committee devoid of any influence by the Council and that the Appellant had an ample opportunity to defend himself before the S.S.D.C. That Appellant in fact presented his defence to it before the Committee made it’s recommendations to Council, thereby affording the Appellant all the fair hearing that he should have. Counsel however, made no allusions as to whether the Joint Committee is the same with the S.S.D.C.

We could also not lay our hand on any such provision, and in the absence of any clear provision in the statute, Law or Regulations stating that the “Joint Committee of the Council and the Senate” referred to in Paragraph 5 (e) of Statute 8 is the same with S.S.D.C., the only conclusion is that the two Committees are different. In other words, the S.S.D.C. is not the Joint Committee specified in Paragraph 5 (e) from which the Council is to receive a report on the case.

By virtue of Paragraph 5 (e), the Joint

Committee of the Council and the Senate is the only body (Committee) that has been assigned or delegated the duty of submitting its report of investigation against a Senior Staff to the Council for consideration. It is now firmly settled that where a statute confers specific power on any person or authority for the performance of certain acts or duty it is only that person or authority and no other person that is contemplated in the performance of the acts or duty under the relevant Law. Only that person and none other can do that assignment and in strict compliance with the power vested in him by the relevant statute. Anything short of this cannot be endorsed by the Law.
GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 550, EMUZE V. UNIVERSITY OF BENIN (2003) 10 NWRL (PT.825) 328.
In BAMIGBOYE V. UNILORIN (1999) 6 SCNJ 295, the Supreme Court re-stated the Law, thus:-
“The person to whom on office is delegated cannot lawfully devolve the duty upon another unless he be expressly authorized to do so.
The Court continued.
“In the instant case, the power of the University Council to discipline Senior administrative, academic and

professional staff of the University under Section 15 (1) of the university of Ilorin Act was delegated to it by that Section of the Act, thus, the Council cannot delegate it to another, that is the Staff Disciplinary and Appeal Committee”.

In an earlier decision of the Supreme Court in U.N.T.H.M.B. & OR v. NNOLI (Supra), the Respondent was the head of the Pharmacy Department of the 1st Respondent under whose supervision a pupil pharmacist compounded chloroquine syrup which caused the death of four children resulting in public outcry which necessitated the Appellants to investigate the matter. As a fall out of the investigation, the Respondent was compulsory retired without following the laid down procedure, in Sections 9 and 13 of the Decree No. 10 of 1985. The issue before the Courts as in this Appeal, was not the merit of the removal, whether the Respondent was negligent or not, but whether the procedure for her removal was proper. By Sections 9(1) and 13 of the Decree, the board shall require the Secretary who by virtue of Section 5(3)(a) was also the director of administration, to give notice in writing of reasons to the person in question. This

was not done, rather, the purported notice was written by the Chief Pharmacist. In upholding the decision of the trial Court this Court held inter alia:-
“Even if I accept the notice of appearance before the Board given by Chief Pharmacist as sufficient, the breach of the statutory requirement will still be manifest as Section 13 of Decree No. 10 of 1985 makes it mandatory that such notice must be given by the Secretary to the Board by virtue of the provision of Section 5(3)(a). There was no notice from the Secretary let alone being in writing……I am satisfied that the retirement of the Plaintiff was not in accordance with the Low…”
The Supreme Court endorsed the above decision of this Court and further held that,
“Where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the details …….The non-observance in the process of reaching any decision renders the decision itself a nullity…… where a member of Staff of a University Teaching Hospital is to be removed, there ought to be strict compliance with Section 9 and

13 of the University Teaching Hospital (Reconstitution of Board etc) Decree No. 10 of 1985…..”

In the same vein, the same apex Court in BAMIGBOYE V. UNILORIN (Supra) and this Court in RAJI V. UNILORIN (1999) – (2007) All FWLR (Pt.345) 325 @ 338 E-G per Ogunwumiju JCA, considered the provisions of Section 15(1) of the University of Ilorin Act and held that the power of Council under Section 15(1) of the Act is a statutory disciplinary power to discipline Senior administrative, academic and professional Staff which was delegated to the Council by that Section of the Act and that the Council could not delegate to another, i.e., the Senior Staff Disciplinary and Appeals Committee (SDAC).

Similarly in the instant appeal, the power or authority vested in the Joint Committee of the Council and the Senate by the Ahmadu Bello University Statute 8 Paragraph 5 (e) cannot without any express provision, be delegated to and or be performed by the Senior Staff Disciplinary Committee (SSDC).

The statute contemplates the Joint Committee of the Council and the Senate and no other person or body to perform this duty assigned to it in Paragraph 5. It is only the

Joint Committee of the Council and the Senate and not the Senior Staff Disciplinary Committee that can perform the duty and strictly in accordance with the authority conferred upon it.

It stands to reason that the Appellant’s arraignment before the S.S.D.C. for investigation and the S. S. D. C’s report submitted to the Council for consideration are all ultra vires Paragraph 5 (e) of the statute and in Law, amounts to a nullity. See Oputa JSC at page 36 C-F in the Iocus classicus case of OLILNIYAN V. UNIVERSITY OF LAGOS (Supra) OLORUNTOBA-OJU- V. ABDULRAHEEM (Supra) per Adekeye JSC @ page 46-47.

The result is that the arraignment of the Appellant before the SSDC and the receipt of that Committee’s report as well as the action on the report by the Council are all in breach of Paragraph 5 (e) and are null and void, the SSDC which investigated the Appellant and whose report and recommendation the Council received and acted upon, not being the Joint Committee of the Council and the Senate specified in the statute.

The second requirement is that of fair hearing, provided in Statute 8 paragraph 5 (F) i.e. that the Appellant was accorded a reasonable

opportunity of being heard. Learned Counsel for the Appellant vehemently argued that the Appellant was denied fair hearing in that he was not given an opportunity of a hearing by the Council after the receipt and consideration of the SSDC’s report to the Council. He placed the weight of his submission on the Supreme Court decision in OLORUNTOBA-OJU V. ABDULRAHEEM (Supra) wherein his Lordship Adekeye JSC quoted in approval the ratio of Onu JSC in UNTHMB V. NNOLI (Supra).

I consider a detailed consideration of this 2nd requirement as unnecessary in the light of the conclusion that the Respondent did not strictly comply with the prescribed procedure. The reasoning for this has earlier been explained. Compliance with only one of the two conditions or conversely, failure to comply with any of the two conditions is tantamount to non compliance as there can be no partial or half compliance. BAMIGBOYE V. UNIVERSITY OF ILORIN (Supra), YEMISI V. FIRS (2012) LPELR CA/AK/02/2010.
This is because, where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the

requirement to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity. Thus, in this case, having failed to observe the statutory requirement laid down in Paragraph 5 (e) of Statute 8 of Ahmadu Bello University Law, the decision of the 1st Respondent to compulsorily retire the Appellant was taken ultra vires and the decision itself is a nullity.

Further, the analogy of the two keys that open the only access gate to the house is very relevant and apt here. The absence of anyone of the keys precludes access to or exit from the house. In the con of Statute 8 Paragraph 5, the 1st Respondent to access the power vested in it to dismiss an erring Senior Staff, must receive and consider a report from Joint Committee of the Council and the Senate on the matter, not from the SSDC, and then afford reasonable opportunity of a hearing to the employee. In the case in hand, the proper procedure was not followed by the 1st Respondent and it would make no difference that the Appellant was afforded fair hearing by a wrong procedure. Fair hearing must be within the procedure prescribed by the relevant statute.

There can be no fair hearing in breach of the laid down procedure for the attainment of the fair hearing. The Respondent cannot in the circumstance be said to have fulfilled the conditions precedent to the exercise of the powers vested in it to dismiss an employee.

I hold that the termination of the appointment of the Appellant by the Respondent vide the letter of 6th June, 2011 was not in accordance with the laid down procedure and therefore null and void. I resolve the sole issue in favour of the Appellant, allow the Appeal and set aside the decision of the Lower Court.

What is now left is the question of the orders to which the Appellant is entitled. Learned Counsel for the Appellant has urged upon us to set aside the decision of the 1st Respondent’s Council at its 145th Regular Meeting held on 24/05/2011 which dismissed the Appellant, set aside the purported dismissal and order the reinstatement of the Appellant as well as the payment of his entitlement from June 2011 to 6th February, 2012, contending that once the dismissal is declared null and void, an order for reinstatement should be made and by virtue of Section 13(3) of the A.B.U. Law, the

1st Respondent’s power to appoint a Senior Staff, as the Appellant includes the power to re-appoint or reinstate. He cited IFETA V, SHELL PETROLEUM (2005) 4 SCNJ 111, 124, OLANIYAN ORS V. UNIVERSITY OF LAGOS (SUPRA) @ 623 and OLORUNTOBA-OJU V. ABDULRAHEEM (SUPRA)

?It is a well settled principle of Law that the Court will not order specific performance of a contract of personal service except where as in this appeal, the contract is tinged with statutory flavor in which case, the servant over whom statutory provision prevails is said to be vested with a legal status which makes his relationship with his master beyond the ordinary master and servant relationship and brings it to one of the exceptions of the general rule. Thus, where as in this appeal the relationship is predicated upon statute, declaratory and injunctive orders may be made to compel performance of the contract of service, because in the eye of the law, the purported termination is invalid and the employee continue to have the right to be treated as such an employee, up to the expiry of the term of the contract, in this case, as a lecturer in the Department of Mathematics of the Ahmadu Bello

University Zaria to the 6th February, 2012. See OLANIYAN V. UNIVERSITY OF LAGOS (Supra) @ 631-632, SHITTA-BEY V. FPRS (Supra), BANKOLE V. NBC (1968) All NLR 736 and the case of IFETA V. SHELL PETROLEUM (Supra,) referred to by the Appellant’s Counsel.

In the final analysis, standing on the above solid position of the Law, I grant to the Appellant the following reliefs contained in the amended statement of claim before the Lower Court.
“(a) A Declaration that the dismissal of the plaintiff by the Defendants from the services of the 1st defendant vide their letter referenced p.16,773 of 6th day of June, 2011, is in violation of the Ahmadu Bello University Law; it is therefore invalid, null and void and of no effect whatsoever.
(b) An Order of the honourable Court setting aside the letter of dismissal of the claimant doted the 6th day of June, 2011.
(c) A Declaration that the claimant was still in lawful employment of the 1st Defendant up to 7th day of February, 2012.
(d) An Order of the honouroble Court setting aside the decision of the 1st Defendant’s Council at its 145 (Regular) meeting held on 28th and 29th day of March, 2011,

contained in the letter reference No. P.16, 773 of 6th day of June, 2011.
(e) An Order of this honourable Court directing the defendants to pay all the entitlement of the Claimant from the date of the purported dismissal till the 6th day of February, 2012 when his contract with 1st Defendant would have come to an end, by way of damages for breach of contract”.

These shall be the Orders of this Court.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I wish to add a few comments.

The Appellant commenced the action in the Lower Court challenging his dismissal from his employment by the Respondents. The Appellant was employed as a full time Lecturer II by the Respondent for a term of two years, subject to renewal by mutual consent and terms of his employment were contained in a letter dated the 3rd of January, 2000. The contract was renewed every two years and

the last renewal before the eruption of the issues leading up to this case was done on the 7th of February, 2010 and was due to expire on the 6th of February, 2012. It was during the currency of this contract that the Respondents dismissed the Appellant by a letter dated the 6th of June, 2011. The Appellant challenged his dismissal on the ground that the proper procedure for his discipline and dismissal was not followed.

The employment of the Appellant was governed by a contract reduced into writing. It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR (Pt.1336) 555. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful and if any question should

arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. It is not the business of the Court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into the contract – Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209, Daspan Vs Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt.1349) 1.

Clauses 2 and 6 (ii) of the letter of employment of the Appellant stated thus:
The appointment is subject to the provisions of the University Laws, statutes and ordinances made there under and the Regulations governing the conditions of Appointment of Senior Staff made by the University Council from time to time. A copy of the current Regulations (referred to in this letter as the Regulations) is enclosed.
The commencement and termination of the appointment will be governed by the provisions of Section 3 of the Regulations

By these

provisions the Appellant and the Respondents by mutual consent assimilated and incorporated into and made the provisions of the University Laws, statutes and the ordinances made there under, including the Regulations governing the Conditions of Appointment of Senior Staff made by the University Council, part of the terms of the contract of employment of the Appellant. The employment of the Appellant was given statutory flavor by the provisions and it is settled law that where the employment of an employee is with a statutory flavor, the removal of that employee from office must be in strict compliance with the relevant statute or regulation governing the employment – Garba Vs Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449, Union Bank of Nigeria Ltd v. Ogboh (1995) 2 NWLR (Pt.380) 647, Iderima vs. Rivers State Civil Service Commission (2005) 16 NWLR (Pt.951) 378, Imasuen v. University of Benin (2010) 3 NWLR (Pt.1182) 591.

Now, Section 3(f)(i) of the Regulations stipulated that:
An appointment may be terminated before its due date of expiry as follows:-
i. By the Council in accordance with the University Statutes (the Ahmadu

Bello University Act, Cap 14 LFN, 2004)?

Paragraph 8(5) of the University Statute provides:
?Subject to the provisions of this statute and to the terms of his appointment, no member of Senior Staff shall be dismissed save by the decision of Council and for good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment.
Provided that:
(e) Before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and Senate consisting of the Chairman of Council as Chairman and equal members of the Council and of the Senate.
(f) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council.?

?From the uncontested facts of this case, it is clear that though it was the University Council that dismissed the Appellant for gross misconduct pursuant to its powers under Paragraph 8(5) of the University Statute, it did so based a report received from the Senior Staff Disciplinary Committee, and not on the strength of a report received from a Joint Committee of

the Council and Senate consisting of the Chairman of Council as Chairman and equal members of the Council and of the Senate. There was no evidence before the Lower Court that the Senior Staff Disciplinary Committee and the Joint Committee of Council and Senate were the same thing and that the Senior Staff Disciplinary Committee had the Chairman of Council as Chairman with equal members of the Council and of the Senate when it interrogated the Appellant and wrote up its report. The evidence shows that the report acted upon by the University Council in taking its decision to dismiss the Appellant was not the report prescribed by the Statute that it should act upon.

The appointment of the Appellant was thus not terminated in accordance with clear terms of the University statute. It is settled law that an employment with a statutory flavor must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect – Akintemi Vs Onwumechili (1985) 1 NWLR (Pt 1) 68, Aiyetan Vs NIFOR (1987) 3 NWLR (Pt 59) 48, Garba Vs Federal Civil Service Commission supra, Sapara

Vs University College Hospital Management Board (1988) 4 NWLR (Pt 86) 58, Union Bank of Nigeria Ltd Vs Ogboh supra, Iderima Vs Rivers State Civil Service Commission supra. The Lower Court was thus in error when it upheld the dismissal of the Appellant as proper and effective.

It is for these reasons, and the fuller exposition of the law contained in the lead judgment, that I too find merit in this appeal and I allow it. I hereby set aside the judgment of the National Industrial Court sitting in Kano in Suit No.NIC/KN/7/2011 delivered on the 11th of September, 2013 by Honorable Justice M. N. Esowe. I fully endorse the consequential orders made in the lead judgment, including the order on costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the judgment of my learned brother, Amina Audi Wambai JCA that the Appellant’s appeal is meritorious and should be allowed.

I too allow the appeal, with the orders as made in the Lead judgment.

Appearances

S. J. GaniFor Appellant

AND

Kayode AmoduFor Respondent