IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: NOVEMBER 12, 2018 SUIT NO: NICN/YEN/22/2015
BETWEEN:
MR. UGBONG FERDINAND ABEGIM……………………….CLAIMANT
AND
THE VICE CHANCELLOR,
FEDERAL UNIVERSITY, OTUOKE
BAYELSA STATE
2. THE REGISTRAR, FEDERAL UNIVERSITY
OTUOKE, BAYELSA STATEDEFENDANTS
3. THE GOVERNING COUNCIL, FEDERAL
UNIVERSITY, OTUOKE, BAYELSA STATE
4. FEDERAL UNIVERSITY, OYUOKE
BAYELSA STATE
REPRESENTATION
Mr. Ndeze Anthony Esq with Akudo Okpo Esq for the Claimant.
Mr. H.I Nnamoka Esq holding the brief of Gibson Esowah Esq for the Defendant.
JUDGMENT
INTRODUCTION AND CLAIMS
The Claimant commenced this action by a Complaint dated and filed on the 15th day of June, 2015. The Claimant however filed an Amended Complaint dated 19th July, 2018 but filed on the 27th day of July, 2018. His claims as set out in the Amended Complaint and also in paragraph 25 of his Amended Statement of Facts Establishing the Cause of Action are as follows:
A DECLARATION that the indefinite suspension of the Claimant and the payment of half salary since the 8th day of April, 2014 till date is illegal.
A DECLARATION that the Claimant was not given fair hearing
AN ORDER directing the Defendants to pay to the Claimant the sum of N47,780.00 (Forty-Seven Thousand, Seven Hundred and Eighty Naira) representing the amount deducted from the Claimant’s monthly salaries from 8th day of April, 2014 till judgment.
AN ORDER directing the Defendants to pay to the Claimant the sum of N25,000.00 (Twenty-Five Thousand Naira), representing the Claimant’s responsibility monthly allowance as a unit head from 8th day of April, 2014 till judgment.
AN ORDER directing the Defendants to reabsorb the Claimant back to his duty and or position and replicating his first year annual performance appraisal for all the periods he was kept out of work.
The sum of N500,000.00 (Five Hundred Thousand Naira), being cost of litigation.
Accompanying the Complaint were the Statement of Facts, Witness Deposition on Oath, List of Witnesses and the List of Documents to be relied upon at the trial.
A Memorandum of Conditional Appearance dated the 4th day of February, 2016 but filed on the 5th day of February, 2016 was entered on behalf of the Defendants by the Law Firm of P.M. Prefa & Associates. It was filed alongside a Motion on Notice for Extension of Time within which to file and serve the Statement of Defence, Witnesses Statement on Oath and other accompanying processes, accompanied by a 15 paragraphs Affidavit and a Written Address. The Defendants’ Motion on Notice dated 4th day of February, 2016 but filed on the 5th day of February, 2016 was moved and granted on the 9th of April, 2016, deeming all the Defendants’ processes as properly filed and served.
At trial, the Claimant appeared as the sole witness in the proof of his claim testifying as CW1 on the 17th day of April, 2018 and was cross-examined on the same date. He tendered 9 EXHIBITS (EXHIBITS CW1 FUO 001 – CW1 FUO 009).
Although the documents accompanying the Statement of Defence showed that the Defendants intended to call 4 witnesses at the trial, at the opening of their defence on the 24th day of May, 2018, the Defendants called only one witness DW1 (one Hudron K. Kari), who was also cross-examined on the same date by Claimant’s Counsel. Consequently, it is safe to hold that the statements of the other witnesses having not been adopted are discountenanced.
In their defence, the Defendants tendered 3 documents which was admitted into evidence, marked as EXHIBITS DW1 001 – DW1-003, and thereafter closed their case. This Court consequently ordered Parties to file their Written Addresses, which were filed and same adopted on the 3rd day of October, 2018.
CLAIMANT’S CASE IN BRIEF
By his Written Deposition, the Claimant was offered Temporary Appointment as an Accountant 1 by a Letter FUO/REG/SS/160 dated September 26, 2012 in the 4th Defendant Institution with effect from the same day. The letter was tendered in evidence as EXHIBIT “CW1-FUO-001”. Almost a year after, by another letter FUO/REG/ADM/0286 dated September 02, 2013 signed by the 2nd Defendant and tendered as EXHIBIT “CW1-FUO-002”, the Claimant’s appointment was regularized and made pensionable. He was placed on a salary of N108,504.75 per month. EXHIBIT CW1-FUO-002 entitled the Claimant to all the benefits and privileges pertaining to his appointment as well as subject to the rules and regulations guiding pensionable appointments in the 4th Defendant Institution.
The Claimant stated that he was suspended indefinitely by the Defendants over an incident concerning payment of school fees for three prospective students sometime in August, 2013. He further claims that he was not given fair hearing by the Panel set up by the Defendants to investigate him and was placed on half salary for the duration of his suspension which lasted from 8th of April, 2014 till date except for the 18th day of March, 2015 when he was asked by the Panel to make a report on the allegation of financial impropriety. This long wait prompted him to instruct his lawyers to write the Defendants a complaint/plea letter, which, according to him, did not yield any fruits, hence the institution of this suit.
During cross examination, the Claimant reiterated his position and stated that he actually did pay the school fees for three students out of empathy. Although he could not remember the Account Number he paid the said fees into, he asked the Court to look at the Exhibits he tendered (EXHIBIT CW1 FUO 003) insisting that the payment was made to the 4th Defendant’s Diamond Bank account. He further stated in evidence that he made a defence in writing to the Panel set up to investigate him and submitted same on the day he was asked to appear before the Panel. That he also discovered that his Head of Department was part of the membership of the Panel. He closed his case on the 18th day of April, 2018.
THE CASE OF THE DEFENDANTS
DW1, in his Written Deposition on Oath, averred that he is the Head Librarian in the 4th Defendant Institution and the Chairman of the Committee of Enquiry set up through an internal memo from the office of the 2nd Defendant to investigate the Claimant. The committee was able to reach its findings after three (3) sittings and their report submitted to the 2nd Defendant. He further averred that the process was fair and unbiased.
Under cross examination, DW1 stated that the findings of the committee he headed was as contained in EXHIBIT DW1 002 but does not know if the Claimant was still a staff of the 4th Defendant nor if the Claimant was still under suspension, as these were administrative and not within his knowledge.
THE SUBMISSIONS OF THE DEFENDANTS
Learned Counsel on behalf of the Defendants formulated three (3) issues for determination to wit:
Whether the indefinite suspension of the Claimant by the Defendants is unlawful
Whether there was a breach of the Claimant’s right to fair hearing
Whether the Claimant is entitled to the reliefs sought in this case.
In arguing its issue one, Learned Counsel to the Defendants submits that the indefinite suspension of the Claimant from duty is lawful having not contravened any known law or regulation. He argued that the Claimant was suspended on allegation of fraud and financial impropriety which he contends the Claimant corroborated under cross examination. The Claimant’s action, according to Learned Counsel, amounted to serious misconduct which warranted the said indefinite suspension, which was in line with the provisions of the Public Service Rules, 2008.
Counsel further submits that by the provisions of Section 3 – 030307 (xiii) of the Public Service Rules (EXHIBIT CW1 FUO 009), disciplinary procedures can last for more than 60 days where it involves a criminal case and since the allegations against the Claimant has some criminal connotations, it falls within the purview of the said section hence no timeline.
The provision states that:
“All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”
Counsel argued that EXHIBIT CW1 FUO 009 takes precedence over EXHIBIT CW1 FUO 008 and concludes that the Claimant’s suspension beyond the 3 months period is in line with EXHIBIT CW1 FUO 009, especially as the Claimant has been on half salary. The indefinite suspension would have been resolved if not for the action in court.
Learned Counsel submitted in his issue two that there was no breach occasioned against the Claimant’s right of fair hearing and even so, the Claimant’s assertion of an infringement of his right of fair hearing is premature and unwarranted. He further submitted that the Defendants are not required to comply with the principle of fair hearing before placing an erring employee under suspension. The Court is called upon to look at the provisions of Article 3.2 (c) (i) of EXHIBIT CW1 FUO 008 and Section 3 of EXHIBIT CW1 FUO 009. The Claimant cannot be seen to complain of the breach of his right of fair hearing because no decision has been taken against the Claimant by the Defendants and the Claimant is still a staff of the 4th Defendant.
More so, the report made by the Claimant to the Committee set up by the Defendants to investigate him is sufficient proof that the Claimant was accorded fair hearing. The Court was referred to the case of NWOKOCHA v A.G IMO STATE (2016) ALL FWLR (PT. 835) P.274. Counsel also submitted that the fact that the Claimant did not raise objections to nor complained of the inclusion of the Bursar as a member of the Panel and even went on to present his written report to the Panel, he cannot now turn around to complain.
On issue three, the Defendants through their Counsel argued that the Claimant cannot be entitled to the reliefs he seeks from this Court because the suspension is not illegal and that the Claimant’s right to fair hearing was not breached. The consequent effect being that since the indefinite suspension was lawful, it is unless and until the Claimant is cleared of all allegations against him by the Panel that he can be entitled to his full salary. Also that since he is not performing the role of a Unit Head during the pendency of the suspension, he cannot be entitled to the Responsibility Allowance. On the aspect of cost of litigation, the Learned Counsel submitted that the Claimant did not proof that he was entitled to the said sum. Counsel urged the Court to resolve all the issues in favour of the Defendants.
SUBMISSION OF THE CLAIMANT
The Claimant, in his Final Written Address, raised the following issues for determination by this court:
Whether the continuous indefinite suspension of the Claimant till date is legal.
Whether the Claimant is entitled to the reliefs sought.
In his argument on the first issue, the Claimant’s Counsel submitted continuous indefinite suspension of the Claimant till date is illegal. He argued that since the employment of the Claimant is one with statutory flavour, which is governed by statute, there should be a strict adherence of the said governing statutes when dealing with issues related to the employment. He relied on several authorities including FMC IDO-EKITI & ORS v ALABI (2013) 31 NLLR PT.89 AT 194-195, PARA G-C, SAMUEL v RECTOR, FEDERAL POLYTECHNIC BIDA & ORS (2013) 33 NLLR PT.95 AT 252, PARAS A-B, amongst others. He contends that for 11 months of the suspension, the Claimant was not invited to clear himself or be heard over the allegations against him. That despite the Claimant’s written report to the allegation in March 2015, nothing was heard again until this action was instituted in June, 2015. Learned Counsel submits that this action contravenes CHAPTER 3, SECTION 3.2 (c)(i) of the RULES & REGULATIONS GOVERNING CONDITIONS FOR SERVICE OF SENIOR STAFF, FEDERAL UNIVERSITY, OTUOKE BAYELSA STATE (EXHIBIT CW1 FUO 008) and PART IV, SECTION 17 (3) & (5) of the FEDERAL UNIVERSITY OF OTUOKE (ESTABLISHMENT) ACT, 2015.
Counsel states that the Defendants have acted ultra vires and that the continued indefinite suspension of the Claimant, which he placed at about 47 months outside the recommended 3 months, is null, void, an unfair labour practice and a gross violation of the governing statutes regulating the Defendants. He referred the Court to the case of SAMUEL v FEDERAL POLYTECHNIC BIDA (supra) and urged the Court to so hold. He further urged the Court to disregard the Defendants’ reliance on Section 3, Article 030307, sub (xiii) of EXHIBIT CW1 FUO 009 that “all disciplinary procedures must be commence and completed within a period of 60 days except where it involves criminal cases”. Counsel argued that there was nowhere in the pleadings or evidence to show that the case was a criminal case nor was it reported to the police for investigation. He concluded by stating that it was an afterthought on the part of the Defendants to justify their alleged breach of their rules and regulations.
On his issue two, Learned Counsel to the Claimant contends that the Claimant is entitled to the reliefs sought based on the evidence before the Court. First he submits that the Defendants did not give the Claimant fair hearing save for the report the Claimant was asked to make in writing. To him, the evidence of the Defendants’ witness contains a lot of discrepancies on the manner and findings of the investigation which contradicts his earlier Statement on Oaths. Next, Counsel states that the Claimant’s claim for N25,000.00 a month responsibility allowance was uncontroverted hence the Claimant is entitled to the said amount. He concludes by stating that the allegations of financial impropriety against the Claimant was not substantiated nor proven thus his reinstatement should be ordered.
DEFENDANTS’ REPLY ON POINTS OF LAW
The Defendants also filed a joint Reply on Points of Law dated and filed on the 24th day of July, 2018. The Learned Counsel to the Defendants argued in the Reply that where there is a conflict between the provisions of EXHIBITS CW1 FUO 009 and CW1 FUO 008, the former statute would prevail being a subsidiary legislation flowing directly from the 1999 Constitution (as amended). He submits that the allegations against the Claimant contains criminal imputations thus the Claimant cannot complain about the disciplinary procedure while hinging his strength on the provision of Chapter 3, Article 3.2 (c)(i) of the Rules and Regulations Governing Conditions of Service of Senior Staff of the Federal University, Otuoke, Bayelsa State (EXHIBIT CW1 FUO 008).
Since the Defendants have not reached any decision on its investigation on the allegations against the Claimant, the Claimant cannot complain especially also as he was given an opportunity of responding to the allegation. He cited the authority of B.A. IMONIKE v UNITY BANK PLC (2011) 4 SC (PT.1) 104.
Counsel further contends that since the Parties are in Court, the Defendants are restrained by the law from carrying out any action with respect to the issue. Hence the Claimant’s arguments that the Defendants have not done anything since the suspension, is misleading. Counsel finally argued that the Claimant having not led evidence on his amended reliefs, such reliefs are bound to fail.
COURT’S DECISION
I have carefully and thoughtfully read through all the processes filed by Learned Counsel for and on behalf of the Parties in this suit. I have listened to the witnesses who testified under oath and observed their demeanours and I have judiciously evaluated the Exhibits tendered and admitted by this Court. I have also heard the oral submissions of Learned Counsel for the Parties on the issues raised and I adopt the issues raised by Parties to wit:
Whether from the totality of the evidence before this Court and the circumstances of the case, the indefinite suspension was vires and unlawful
Whether the constitution of the Committee of Enquiry and the procedure adopted by the Committee in determining the guilt or otherwise of the Claimant constitutes a breach of his right to fair hearing
Whether the Claimant is entitled to all or some of the reliefs sought in this case.
In responding to issue one, I must state that the question I am called to determine is not the guilt or otherwise of the Claimant of the allegations against him but of whether the Defendants have acted in accordance with the laid down rules and regulations required for ascertaining such guilt or non-guilt as the case may be.
From the analysis of the evidence before me, the Claimant herein is a staff of the 4th Defendant whose employment enjoys statutory flavour having been issued letters of TEMPORARY APPOINTMENT (EXHIBIT CW1 FUO 001) and REGULARIZATION OF APPOINTMENT (CW1 FUO 002). Though the Defendants tried to berate the intents of the said Exhibits by their evidence in (paragraph 2 of) their Statement of Defence, when they stated that: “The Defendants admit paragraph 3 of the Statement of Claim to the extent that the regularization of his appointment does not amount to a confirmation of his appointment”, they led no evidence to substantiate their statement. However, DW1 under cross examination, confirmed the status of the Claimant when he stated that:
“as a staff of the Federal University Otuoke, once you are pensionable, you are deemed to be a confirmed staff”.
This evidence further confirms the status of the Claimant as per the content of EXHIBIT CW1 FUO 002 (REGULARIZATION OF APPOINTMENT), which is replicated thus:
“ …Following your performance at the regularization interview held on September 02, 2013 your appointment is hereby transferred to pensionable appointment with effect from September 26, 2012. The appointment is subject to the rules and regulations guiding pensionable appointments in the University.”
Thus it is entirely unarguable that the Claimant’s appointment with the 4th Defendant is one coated with statutory flavour and as such he holds his employment under the provisions of the FEDERAL UNIVERSITY OF OTUOKE (ESTABLISHMENT) ACT (“THE ACT”). Even if it is assumed that the employment of the Claimant is still temporal, the law is settled that where a Statute has provided for procedures by which an act is to be done, failure to comply with the said procedure(s) raises an issue of vires and Administrative Law, and not of contract, and renders anything done in disregard of the statutory provisions, null and void.
I have also observed that Parties tried to make their cases around the various Statutes regulating disciplinary actions on the Claimant, relying on the Federal University of Otuoke (Establishment) Act, the Rules & Regulations Governing Conditions of Service of Senior Staff and the Federal Public Service Rules. These laws are all applicable, however based on the circumstance of the case, the applicable Statutes are the FEDERAL UNIVERSITY OF OTUOKE (ESTABLISHMENT) ACT, 2015 and the RULES & REGULATIONS GOVERNING CONDITIONS OF SERVICE OF SENIOR STAFF, FEDERAL UNIVERSITY, OTUOKE, BAYELSA STATE (EXHIBIT CW1 FUO 008). The Act is the enabling Law of the University and takes precedence over all other subsidiary laws and regulations.
Although I agree with Learned Counsel to the Defendants’ submission that the Parties are members of the public service of the Federation, it must be noted however that service in the University is not identical with service in the Civil Service of the Federation. Each is governed by its own conditions of service including, the basic beginning, the contract of service between the employer and the employee and even their respective unions. See the case of OLANIYAN v. UNIVERSITY OF LAGOS (1985) NWLR (PT.9) 599.
The Federal University, Otuoke and its University Council are both creatures of the Federal University of Otuoke (Establishment) Act, 2015, and cannot act except within and under the powers conferred on them by the Statute. The Act derives its paternity from the 1999 Constitution (As Amended), by virtue of Section 4(2) & (4). The provision bestows on the National Assembly the power to make laws for the peace, order and good government of the Federation with respect to any matter set out in Part I of the Second Schedule and any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution as so prescribed, of which Item 27 of the Concurrent List deals with University Education and the Federal University, Otuoke is one of those institutions the National Assembly has made laws for. Consequently, it is safe to hold that the Act was made pursuant to the Constitution.
By the Act, the Defendants have the power, the vires, to engage and terminate academic and administrative staff. It is also in the exercise of these powers, under Section 4 of the Act creating the Defendants that the Defendants made and issued the RULES AND REGULATIONS GOVERNING CONDITIONS OF SERVICE OF SENIOR STAFF (EXHIBIT CW1 FUO 008), the relevant paragraph to this suit being Chapter 3, Article 3.2(c). By this, the Act and the Rules have constitutional force and the persons over whom they apply are invested with legal status which guarantees strict adherence to the statutory provisions.
It is trite that once a subsidiary legislation conforms to the principal law, which provides the source of their existence, such legislation becomes relevant. See the cases of GOVERNOR OF OYO STATE & ORS v FOLAYAN (1995) 8 NWLR (PT.413) PG.292, OSADEBAY v A.G. BENDEL STATE (1991) 1 NWLR (PT.169) PG.525. There is no doubt in this case that the Act itself and the Rules/Regulations are properly made and they have constitutional force. To that effect, I shall lay emphasis only on the provisions of the Act and the Rules and Regulations Governing Conditions of Service of Senior Staff, Federal University, Otuoke, Bayelsa State (EXHIBIT CW1 FUO 008) as the relevant laws in this suit.
I have taking this time to explain this position in order that the Court’s reason for reliance on the Act and its subsidiary legislation only, be appreciated.
Having said that, the law is elementary that any employment with statutory backing where certain actions are to be taken, such actions must be undertaken in accordance with due process and the rules/regulations as prescribed by the laws governing such employment. See the cases of PSYCHIATRIC HOSPITAL MANAGEMENT BOARD v EJITAGHA (2000) 11 NWLR (PT.677) PG.154; EKPEROKUN v UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) PG.162
Section 17 of the Act provides for the procedure for instituting or commencing disciplinary proceedings against an officer/employee. It provides as follows:
“17. (1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University, other than the Vice-Chancellor, should be removed from office or on grounds of misconduct or inability to perform the functions of his office Council shall –
give notice of those reasons to the person in question;
afford such person an opportunity of making representation in person on the matter to the Council; and
take a decision to terminate or not to terminate the appointment.
(2) If the affected staff or any three members of the Council so request within a period of one month from the date of receipt of the notice of the Council’s decision, the Council shall make arrangements for –
a joint committee of the Council and the Senate to review the matter and to report on it to the Council;
the person in question to be afforded an opportunity to appear before and be heard by an 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, the Council may so remove him by an instrument in writing signed on the directions of the Council.
(3) The Vice-Chancellor may, in a case of gross misconduct by a member of staff which in the opinion of the Vice- Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall immediately be reported to the Council.
(4) Any member of staff may be suspended from duty or his appointment may be terminated by Council for a good cause and, for the purposes of this subsection, “good cause” means –
(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office;
(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold office;
(c) conduct of a scandalous or disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold office; or
(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.
(5) Any person suspended under subsection (3) of this section shall be on half pay and the Council shall, before the expiration of a period of three months from the date of such suspension, consider the case against that person and come to a decision as to whether to –
(a) continue such person’s suspension and if so on what terms (including the proportion of his emoluments to be paid to him);
(b) reinstate such person in which case the Council shall restore his full emoluments with effect from the date of suspension;
(c) terminate the appointment of the person concerned in which case such a person will not be entitled to the proportion of his emoluments withheld during the period of suspension; and
(d) take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine.
(6) Where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against the person, the Council shall, before the expiration of three months from such decision, come to a final determination in respect of the case concerning such a person.
(7) The person by whom an instrument of removal is signed in pursuance of subsection (1) of this section shall use his best endeavors to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.
(8) Nothing in this section shall prevent the Council from making regulations for the discipline of staff and workers of the University as may be appropriate.”
By the provisions of Section 17(1) of the Act, the Council shall first issue query to an erring officer where it appears there are reasons to remove the employee from office or on grounds of misconduct or inability to perform the functions of his office and to give such employee the opportunity of responding to such query. See the cases of MIAPHEN v UNIVERSITY OF JOS CONSULTANCY LIMITED (2013) LPELR-21904 (CA), A.G KWARA STATE v ABOLAJI (2009) 7 NWLR (PT.1139) PG 199 AT 212.
The Vice Chancellor, by virtue of Section 17(3), is also vested with the powers to suspend a member of staff where, in his opinion, the staff has committed gross misconduct that is prejudicial to the interest of the University. I believe this was the power the 2nd Defendant exercised when he suspended the Claimant using EXHIBIT CW1 FUO 005). The Vice Chancellor is however required to immediately report the matter to the Council. This is similar to the provisions of Chapter 3, Article 3.2(c)(i) of EXHIBIT CW1 FUO 008.
The Council is mandated to consider the case against the employee/officer and reach a decision before the expiration of three (3) months from the date of the suspension. The Claimant laid heavy reliance on this part of the law stating that the Court should declare the suspension null and void on this ground. I do not support this argument that the Claimant’s suspension is illegal merely because it exceeded the three (3) months period. On the authority of BAMIGBOYE v UNIVERSITY OF ILORIN & ANOR (1999) 10 NWLR (PT.622) PG.290 AT 348, the Supreme Court exhaustively construed the provisions of Section 15 of the University of Ilorin Act, which is similar to Section 17 of the Act, to hold that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. In fact, the 3 months initial period can be exceeded by not more than a further 3 months, by virtue of Section 17(6) of the Act.
I shudder to think that this was the situation in this material particular. Firstly, there is no evidence to show that the disciplinary action on the Claimant was being enforced by the Council (3rd Defendant), which is the appropriate authority to enforce disciplinary actions on employees/officers of the 4th Defendant. Another peep into the evidence of Parties, placing EXHIBITS CW1 FUO 005, DW1 001, DW1 002 and DW1 003 side-by-side, would show that it took the Defendants almost 11 months to act on the indefinite suspension meted upon the Claimant and another 3 months after the constitution of the Committee of Enquiry before the Committee would actually make and submit its report. As if that was not enough, the 2nd Defendant, via EXHIBIT DW1-003, gave the Committee another two months within which to make a definite recommendation on the matter. The totality of all these negates the principle of natural justice and every other equitable principle known to law. In observing the principles of natural justice, justice must not only be done but must be seen to be done in all circumstances. The provisions of Section 17(3) of the Act is not a license to side track the disciplinary procedure set out by the Act.
The Defendants’ line of argument that the allegation against the Claimant contains criminal imputation of fraud and financial impropriety is misconceived, to say the least. The long suspension visited on the Claimant by the Defendants on the basis of a misconduct amounting to a criminal offence without the prosecution before a Court of competent jurisdiction, is needless. Once an allegation of crime is made against a person, or an employee as suggested by the Defendants in this case, such employee must be tried in a Court of law, where the accusations of his accusers can be ventilated and where the employee would be giving the opportunity to defend himself as required by Section 36(5), (6) & (7) of the 1999 Constitution (As Amended). No other tribunal, investigating panel or committee will do that as it is not within their competence. See the cases of FEDERAL CIVIL SERVICE COMMISSION v LAOYE (1989) 2 NWLR (PT.106) PG.652 AT 679; OKWUSIDI v LADOKE AKINTOLA UNIVERSITY (2011) LPELR-4057 (CA); and EGEJURU v MEDICAL & DENTAL PRACTITIONERS INVESTIGATION PANEL & ORS (2017) LPELR-42616 (CA). The Defendants should have bowed to the superior provisions of the 1999 Constitution (As Amended) and prosecute the Claimant for the alleged crime before a Court of competent jurisdiction before making him face the Panel for grave or serious misconduct cum criminal offence. This they did not do and I do not now see why or how they can argue or justify the long period of time the administrative investigation has taken because the allegation contains criminal imputation.
In my candid opinion any public body charged with the power to employ staff must act within the Statute creating it and ensure that it mandatorily abides with the provisions of that Statute governing its procedure for discipline or dismissal of its staff. Although the Defendants have the powers by virtue of the relevant Sections of the Statutes to suspend and discipline the Claimant, they have failed to adhere to the strict construct of the Statutes in the circumstance. I so hold. Issue one is therefore resolved in favour of the Claimant.
On issue two, that is, whether the constitution of the Committee of Enquiry and the procedure adopted by the Committee in determining the guilt or otherwise of the Claimant constitutes a breach of the Claimant’s right to fair hearing. This issue flows from issue one above.
Although I am in agreement with the Learned Counsel to the Defendants that the Defendants are not required to comply with the principle of fair hearing before placing an erring employee under suspension. But what happens next after such suspension? This is a question that begs for answers. Evidence before me shows that witnesses were invited by the Panel or Committee to give their accounts/versions and nowhere in these evidence was it shown that the Claimant was given the opportunity to face his accusers or the witnesses they presented save for EXHIBIT CW1 FUO 007, which was the Claimant’s report to the Panel.
I do not align with the argument of Defendants’ Counsel that it is until a decision is reached on the investigation against the Claimant by the Defendants before the Claimant can claim a breach of his right of fair hearing. Section 46(1) of the 1999 Constitution (As Amended) envisage these scenarios and thus places situations whereby any person can approach the Courts for redress. The Section provides that:
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress” (emphasis mine)
Contrary to that submission, the law is settled that it is not until the fundamental right is contravened before one can approach the Courts for redress. A person can also approach the Court when he alleges that his right is being or likely to be contravened.
I would however not dwell so much on this issue having had no difficulty in holding that the suspension of the Claimant without recourse to the procedure stipulated in Section 17 of the Act and Chapter 3, Article 3.1(c)(i) of EXHIBIT CW1 FUO 008 was ultra vires the powers of the Defendants and therefore null and void. As such, the ground upon which the foundation of the Committee of Enquiry was built is faulty and whatever procedure or steps taken by the Committee in effect is also a nullity and is rendered void.
Lastly, on whether the Claimant is entitled to the reliefs sought, the law is settled that the granting of a declaration is a matter of discretion by the Court but such discretion must be exercised judiciously and judicially. See OKOYE & ORS v NWANKWO (2014) 15 NWLR (PT. 1429) PG 93 and CHUKWUMAH v SPDC (NIG.) LTD (1993) 4 NWLR (PT.289) PG.512. As I have granted ISSUE 1 in favour of the Claimant, it becomes imperative that I summarize my reason. It flows from the facts and evidence that the Claimant’s indefinite suspension lacked justifiability having been suspended for almost 11 months before the constitution of a Panel to investigate the allegations against him. The Defendants’ explanations for this long delay does not hold water. It is not reasonable for a Bursar and some members of staff to review financial records under the Claimant’s responsibility, as they claimed, for more than 9 months, having earlier done his appraisal sometime in September, 2013. That is astonishing.
The Committee as set up by the 2nd Defendant on the instructions of the 1st Defendant also runs fowl of the provisions of the Act creating the 4th Defendant. It is trite law that when the provisions of a statute is clear and unambiguous, effect must be given to those provisions without recourse to any other consideration. SHETTIMA & ANOR v GONI & ORS (2011) 18 NWLR (PT.1279) PG 413.
I am satisfied by the evidence before me that the Claimant has proved his case and is entitled to the declaration sought having faulted the constitution of the Committee.
On the claim of the amount deducted from the Claimant’s monthly salaries, it is trite, as argued by Learned Counsel to the Defendants that the Court cannot usurp the functions or meddle with the affairs of the Defendants but where however, in the process of performing their functions under the law, the civil rights and obligations of any member of their staff or student is breached, denied or abridged, the Court will grant remedies and reliefs for the protection of those rights and obligations. In the instant case, having held that the indefinite suspension lacks credence and form, it flows that the Claimant is entitled to the repayment of all deductions from his salaries and all sums due to him as Responsibility Allowance from the date of his suspension until judgment is served.
The Claimant is still an employee of the Defendant and do not need to be reabsorbed. As for replicating his first year annual performance appraisal for the period he was kept out of work, the Courts are always reluctant to grant orders for specific performance such as these, especially where it relates to contract of employment. An order that cannot be enforced will rather not be made by the Court. The proper order to make in the circumstance is for damages. The case of EZENWA v OKO & ORS (2008) 3 NWLR (PT.1075) PG 610, is of the moment.
Finally, on the award of cost, the Superior Courts in a plethora of authorities have held that determination of cost is at the discretion of the Court. The object of awarding costs is not to punish the unsuccessful litigant but to compensate the successful party for the expenses to which he has been put by having to come to Court. See the cases of LADEGA v. AKINLIYI (1975) 2 SC (REPRINT) P.83 EMORI v EGWU & ANOR (2016) LPELR-40123 (CA), CITIBANK NIGERIA LTD v. IKEDIASHI (2014) LPELR-22447 (CA)
For purpose of clarity and for the reasons stated in this judgment, I hold as follows:
I declare that the indefinite suspension of the Claimant and the payment of half his salary since the 8th day of April, 2014 till date is unlawful.
The Defendants are hereby ordered to reinstate the Claimant to the position which he held prior to the 8th day of April, 2014
The Defendants are hereby ordered to pay the Claimant the arrears of his salaries together with his entitlement (responsibility allowances) from the month of April, 2014 till the date of this judgment being the 12th day of November, 2018.
The Defendants are also ordered to pay the Claimant the sum of One Hundred Thousand Naira (N100,000.00) as cost of this action.
All the terms of this judgment are to be complied with within 30 days from today.
I so hold.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
