IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE AKURE JUDICIAL DIVISION HOLDEN IN AKURE BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI DATE: 21TH NOVEMBER, 2018 SUIT NO: NICN/BEN/25/2016 BETWEEN MR. VINCENT OMOSIGHO CLAIMANT AND 1. UNIVERSITY OF BENIN 2. THE CHAIRMAN, GOVERNING COUNCIL, UNIVERSITY OF BENIN 3. THE VICE CHANCELLOR, UNIVERSITY OF BENIN 4. THE REGISTRAR, UNIVERSITY OF BENIN DEFENDANTS REPRESENTATION Peter Aigbe with him U.O Okungbowa for Claimant O.E. Igiehon for Defendants JUDGMENT The claimant approached this Court on the 14th of September, 2016 by an originating summons and all its accompanying processes. To which the defendants entered a conditional appearance vide a memorandum of conditional appearance filed on 18th October, 2016 by Tayo Obasuyi Esq of Osagie Igiehon & Co and a counter affidavit in opposition to the originating summons, accompanying documents and a written address both filed on the 31st January, 2017. The defendants equally filed a notice of preliminary objection against this suit on the 31st January, 2017, which was withdrawn by the learned defence counsel, Osagie Igiehon Esq on the 5th of April, 2017. On the 9th of May, 2017, learned claimant’s counsel adopted his addresses in support of the originating summons, while the learned defence counsel equally argued his reaction to the originating summons and both learned counsel adopted their respective addresses. The Court on the 6th July, 2017 considered an issue bordering on the competency of this suit raised at paragraph 30 of the counter affidavit filed by the defendants and ruled that this suit will be best determined vide filing of pleadings and thus ordered that parties file their pleadings. In compliance with the order of the Court parties filed their pleadings. Claimant filed a General Form of Complaint on 28th September, 2017 and claimed against the defendants the following reliefs: A. That the defendants’ act of compulsorily retiring the claimant should be declared null and void as they failed or neglected to follow the procedure envisage in the University of Benin Transitional Provision Act UB4 especially S.17 in the Revised Edition of Law of the Federation Act 2004 dated 31st day of December, 2010. B. A Declaration by this Honourable Court declaring that the disciplinary committee constituted by the 2nd defendant cannot retire the claimant on offence on threat to life which is criminal in nature as only the Court of law that is empowered constitutionally can do so nor can it found him guilty on report by the University security department who are not empowered by law to investigate allegation of crime by law. C. A Declaration by this Honourable Court that the claimant cannot be tried for an offence committed outside the official hours of his employment. D. An Order of this Honourable Court directing the defendants to reinstate the claimant to his position and pay all his entitlements forthwith. E. N20,000,000.00 (Twenty Million Naira only) damages for the Act of the defendants that had caused the claimant pains and depreciation. It is the case of the claimant that he was employed on the 25th of March, 1982 as a porter and rose to a senior staff in the department of Biomedical Communication, College of Medical Science and was promoted twice to his next stage of his career by letters dated 13th May, 2013 and 23rd November, 2015 respectively on the recommendation and evaluation by the head of his department (Dr. Mrs. Adenike Olayemi Akhigbe) who he worked directly with without any query before the incident that led to this case. He stated that his salary for the month of February, was not paid on the ground that he did not sign the salary return sheet and that he reported it to the head of his department through text message, who advised him to apply through her office to the bursary department but that he was surprised to be invited by the security department over criminal allegation of threat to life of the said head of department, the invitation which he said he honoured and denied the allegation. That he later got an invitation from the Nigeria Police Force on same allegation where the D.P.O. could not establish any threat from the facts presented. He stated that before the conclusion of the investigation by the Police, the 4th defendant issued him query on 9th of May, 2016 without any report from the security indicting him over the alleged crime, he also stated that no ad-hoc committee was set up by his department to look into allegations contained in the query relating to absenteeism or lateness to work. He was invited to appear before the disciplinary committee of the 4th defendant where he was found guilty and made to retire compulsorily. He contended that the defendants did not follow the laid down procedure as stipulated in Section 5A and B at pages 143 – 144 of the Senior Staff Regulations governing retirement and disciplinary action and that of Section 17 of the University of Benin Transitional Provisions Act, 2010 as he was not given opportunity to make representation in person to the 2nd defendant. He also stated that he was never invited before any Court on allegation of threat to life nor was he found guilty of same by a competent law Court. The defendants filed their statement of defence and stated that the claimant has been exhibiting unstable behaviour, always absent from work without permission from the head of his department, exhibiting high sense of insubordination with numerous queries in his record. Defendants pleaded that a case of act of insubordination, absence from duty without permission and alleged threat to life was reported to management of the 1st defendant by the Head of department of the claimant’s former department. That the security department’s investigation reveals that the claimant sent a message to the head of department during official hours threatening her person and giving an ultimatum that if his salary is not paid within a specific date something drastically will happen to her and that upon investigation it was discovered that claimant deliberately refused to sign the monthly return for February 2016 because of his incessant absence from work. That this act was later adjudged as threat to her and that the investigation also reveals that the claimant deliberately refused to sign the monthly return for February, 2016. The defendants stated that the 4th defendant in line with the extant rule of the 1st defendant, issued the claimant with a query with ample opportunity to respond to issues raised, which he did unsatisfactorily, that he subsequently appeared before ad-hoc committee and thereafter before Senior Staff Disciplinary Committee (SSDC) by a letter of 18th May, 2016 and that based on the report of the SSDC, the Governing Council, accepted the recommendation of compulsory retirement of the claimant with all the right accruing to him, same which was communicated to him by a letter dated 23rd June, 2016. They pleaded that they complied with the procedure stated in the University of Benin Act and Regulations of the Senior Staff of the University, 2003. The defendants contended that this suit was brought mala fide and liable to be dismissed with huge cost. During trial, the claimant testified for himself as CW, he adopted his sworn deposition as his evidence in the case, he tendered some documents which were admitted in evidence by the Court and marked Exhibit VO-VO8. The defendants also testified through One Uyi-Oghosa Choice Osadolor, a legal officer in the 1st defendant he adopted his statement on oath dated the 18/10/17 and presented some documents which were admitted and marked Exhibit UO-UO8. The defendants filed their final written address on the 8th June, 2018 and framed three issues for the determination of this suit, which are: 1. Whether the Claimant has been able to prove before this Honourable Court that his compulsory retirement from the 1st Defendant’s employment is wrongful, illegal and unconstitutional. 2. Whether the Claimant has been able to prove that he is entitled to the reliefs sought. 3. Whether or not the 1st Defendant must of necessity prosecute the Claimant for the alleged offence of threat to life before it can activate its internal disciplinary proceedings. On issues one and two argued together, the defendants’ counsel submitted that the defendants acted lawfully when they compulsorily retired the claimant from the employment as they duly complied with Section 17 of the University of Benin (Transitional Provisions) Act Cap 44 Laws of the Federation 2004 and Chapter XII (5)a of the Regulations Governing the Conditions of Service of Senior Staff, University of Benin being the relevant documents governing the relationship between the parties. Arising from the admission of the claimant before the Court that he was duly issued a query, which he replied to, that an Ad-Hoc committee was set up and he testified before it and also appeared and defended himself before the SSDC, counsel submitted that the defendants has fulfilled the two (2) out of the three (3) ingredients the employer must prove for justification of dismissal or termination or as in this case compulsory retirement of an employee as stipulated in the cases of Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622)page 290(a) 326 paragraphs E-H (Ease of reference Ratio 2) and NEPA v. Elfadi [1986] 3NWLR (Pt. 889) 895 and that the claimant’s claim in his relief (a) that his compulsory retirement be declared null and void as the defendants failed or neglected to follow the procedure, lacks credibility and therefore urged the Court to so hold. In fulfillment of the 3rd ingredient, learned counsel referred the Court to the report of the SSDC particularly page 90. It is the submission of the learned counsel that from the totality of the pleadings and evidence led by the claimant, he has not established any breach of contract by the defendants to warrant the relief one of his claim as it is a trite law that an employee who complained that his or her employment was determined unlawfully must rely on the terms of the contract of employment and show to the Court how the defendants acted outside it. Reference was made to the Supreme Court cases of Idoniboye–Obu v. N.N.P.C. [2003] 4 MJSC 131 at 137 and Bamgboye v. University of Ilorin (Supra) 326 – 327 paragraphs H.A. (Ratios 30-31). In the circumstance, counsel urged the Court to hold that the claimant’s compulsory retirement was justified. It is also the contention of the learned counsel to the defendants that this Court has no jurisdiction to sit on appeal over the decision of an inferior administrative body except as provided by law as the duty of the Court is to ascertain whether the statute and other relevant rules, document e.t.c. was complied with. The authorities of Bamgboye v. University of Ilorin, 299 Ratios 3, 4, 5, 8, 9, 11, 31, and 32 and Esiaga v. University of Calabar [2004] NJSC 69 (a) 85 were relied upon. As regards the contention of the claimant that he was compulsorily retired and no three months’ salary was paid to him in lieu of his retirement, counsel posited that the claimant is not entitled to such relief but that he misconstrued the Regulation Governing the service of Senior Staff as well as the University of Benin Act. See Okafor v. A.G. Anambra State [1991] 6 NWLR (PT. 801) 659, Eperokun V. University of Lagos [1986] 4 NWLR (Pt. 59) 46. For this reason adduced above, counsel urged the Court to discountenance the claims of the claimant and hold that he was properly compulsorily retired. On issue three, learned counsel submitted that in statutory as well as in private employment, the employer can dismiss an employee where the accusation against the employee is gross misconduct involving threat to life bordering on criminality and in such a case, it is not necessary or required under Section 36(1) of the Constitution of the Federal Republic of Nigeria that an employee must first be prosecuted in Court of law. It is also posited that it is gross misleading and erroneous in law for the claimant to contend so that once a crime is defeated, the employer cannot compulsorily retire him unless he is tried and convicted. The Court was referred to the cases of Arinze v. FBN Ltd [2004] 12 NWLR (Pt 888) 663 SC; Olarewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt 731) 961 S.C. It is also the position of the learned counsel that the authority of Sokefun v. Akinyemi [1981] 5 – 7 SC cannot and does not apply. In conclusion, it is the argument of counsel that the defendants, having complied with the terms of the contract and given fair hearing to the claimant, the claimant’s case becomes frivolous as it is completely baseless and urged the Court to dismiss same with substantial costs in favour of the Defendants. The claimant filed his final written address on the 18th of July, 2018 wherein two issues were formulated for determination, viz: 1. Whether the claimant’s employment is one that enjoys statutory flavour requiring the strict adherence by the defendants in the procedure leading to the compulsory retirement of the claimant. 2. Whether the claimant had been able to proof all the claims as to be entitled to the reliefs claimed before this Court. Arguing issue one, claimant’s counsel contended that the various documents presented and admitted as Exhibits before the Court, the claimant had shown that his employment is one covered with statutory flavour and thus it is not difficult to come to conclusion that the employment is regulated by the 1st defendant law establishing same. While referring the Court to the cases of P.H.M.B v. Ejitagha [2000] 11 NWLR (Pt. 677) pg 154 Ratio 1 at pp. 363 – 376, paras A-Band Balogun v. University of Abuja [2002] 13 NWLR (Pt. 783) pg 42 Ratio 1 at p. 153, paras A C – H and Ratio 2 at pg 62, paras D-G, counsel urged the Court to hold that claimant’s employment is covered by statute. On whether the defendants had followed the procedure to compulsorily retire the claimant, counsel referred the Court to the Regulations Governing the Service of Senior Staff of the University dated 16th August, 2003 and Section 17 of the University Act dated 31st December, 2010 and submitted that there was no letter of complaint from the head of department to the 4th defendant before the 4th defendant issued query on him, also that the defendants could not tender before the Court the security report which triggered the query. It is also submitted that the Head of Department did not constitute any Ad-Hoc committee before the claimant was requested by the 4th defendant to appear before the disciplinary committee. Counsel further urged the Court to look critically at Section 17 of the University Act and give it the grammatical meaning of the words used thereof and to hold that the Governing Council is statutorily recognized by the law but that the disciplinary committee is only recognized by the Governing Council that established same. He further submitted that there is nothing in the wordings of the law that suggest that the Governing Council shall delegate the function of compulsory retiring the claimant to anybody and that no document tendered before the Court to show same as he who assert must proof same while he made reference to the cases of Eze v. Unijos [2017] 17 NWLR (Pt. 1593) pg 1 Ratio 6 at pp. 13-14, paras G-H and Ugo-Ngadi v. FRN [2018] 8 NWLR (Pt. 1620) pg 29 Ratio 11 at p. 50, paras B-C. It is therefore the submission of counsel that the failure of the Governing Council to invite the claimant after the Disciplinary Committee has found him guilty is fatal to the procedure adopted by the defendants to an employment that enjoys statutory flavour. On issue two, Counsel, in regard to reliefs B and C, submitted that the text message sent by the claimant to his boss outside official hours requesting for assistance for the salary to be paid cannot be construed to be a serious misconduct within the contemplation of the Senior Staff Regulation 2003 of the institution as pages 2 and 141 of the said Regulation give proper understanding of what ‘misconduct’ is all about, it must, among other things, be committed during official hours and must be investigated and proved. In view of Exhibit V03 which stated that the claimant’s action was an insubordination, it is the position of the learned counsel going by the definition of ‘insubordination’ by Black Law Dictionary (7th edition), that from the affidavit evidence, it is clear that the claimant did not disobey any lawful order either from the defendants or his immediate boss, and the offence for which he was tried does not fall within the definition of what is contemplated in the Senior Staff Regulation for disciplinary action. Furthermore, counsel argued that for an allegation of serious misconduct that borders on threat to life to be proved, it must be investigated and charged to Court. Counsel posited that since the claimant was not charged before any Court of competent jurisdiction and found guilty, the allegation has not been proved as envisaged by law. Reliance was placed on the case of Ekundayo v. University of Ibadan [2000] 12 NWLR (Pt. 681) at pg 220 Ratio 7 at pg 238, paras C-E, Ratio 8 at pg 239, paras D-G, Ratio 9 at pg 239, paras G-H. It is therefore submitted that the procedure adopted by the defendants is against the fundamental principles of fair hearing guaranteed by the Constitution and the Court was urged to declare the process leading to the compulsory retirement of the claimant as null and void. Counsel submitted further that in the event the Court does not find the above submission persuasive enough that the alleged misconduct is within the contemplation of the disciplinary regulations, counsel posited that the procedure of terminating a senior staff like the claimant in the University has not been followed by the defendants. He also submitted that page 144 of the regulations imposes a duty on the 4th defendant to put the claimant on notice by way of writing informing him the grounds which the 2nd defendant proposes to terminate his appointment or retires him compulsorily but that this step was never taken. Counsel also argued that absence from duty being a serious misconduct ought to have been investigated by the head of department who ought to have issued the claimant query or report his conduct to the 4th defendant but yet recommended him for promotions in 2013 and 2015, it is then stated that if there was any lapses within the 3 years of alleged absenteeism, he would not have been promoted twice. He further submitted that the claimant was never confronted with the said allegation at the security department nor was same investigated throughout by the security department. It is based on the above that counsel urged the Court to grant all the claimant’s reliefs as he has been able to prove same. In response to point of law raised by the defendants to the effect that claimant did not file a reply to the statement of defence as such, has admitted that there was an ad-hoc committee set up, counsel submitted that as they have joined issue with them that their action of compulsorily retiring the claimant did not follow the laid down procedure of which setting up an ad-hoc committee is one of the conditions required to satisfy the Court, therefore, the defendants are duty bound to prove by documentary evidence that an ad-hoc committee was set up by them. Accordingly, the Court was urged to discountenance the defendants’ submission. After a careful consideration of the processes filed by the parties, the testimony of both witnesses and having watched their demeanor under cross examination, the exhibits tendered by parties before me, the argument of counsel on both divide and the authorities relied upon by both parties, it is in my respectful view that the issues the determination of which will meet the justice of this case are as follows- 1. Whether or not the procedure for determining the claimant’s employment from the 1st defendant’s employ was in compliance with the contract binding on the parties; 2. Whether or not the claimant has proven his case to be entitled to reliefs sought. It is the claim of claimant by his reliefs B and C that the disciplinary committee constituted by the 2nd defendant cannot retire him on an alleged offence on threat to life which is criminal in nature as only the Court of law that is empowered constitutionally to do so nor can it find him guilty on report by the University security department who are not empowered by law to investigate allegation of crime by law and also that he cannot be tried for an offence committed outside the official hours of his employment. The defendants responded that in statutory as well as in private employment, the employer can dismiss an employee where the accusation against the employee is gross misconduct involving threat to life bordering on criminality and in such a case, it is not necessary or required under Section 36 (1) of the Constitution of the Federal Republic of Nigeria that an employee must first be prosecuted in Court of law. It is well settled that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, nor is it required under Section 36 of the 1999 Constitution that such an employee must be tried in a Court of law. See the case of Chris Ehikioya Eigbe v Nigerian Union of Teachers [2007] LPELR 8310 CA. It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also discloses criminal offences under any law; the employer has to first and foremost try the employee in a Court of law or wait for the outcome of the Court before proceeding to discipline the employee under the contract of service or employment. See Imonikhe v. Unity Bank Plc [2011] LPELR-1503SC. In the case of Francis Arinze v First Bank (Nig) Ltd [2004] 1 NWLR (Pt. 888) 633, the Supreme Court per Belgore JSC as he then was, held thus; “I am of the view that it was not necessary for the respondent to have waited for the prosecution of the appellant for the criminal offences disclosed in his various acts of gross misconduct, before taking steps to deal with him by appropriate dismissal. In other words, it is no longer the law that where an employee commits acts of gross-misconduct against his employer which acts disclose criminal offences under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment” (PP, 25-26 Paras. G-B)”See also the case of Samson Kehinde Akindoyin v Union Bank of Nigeria Plc [2015] 62 NLLR (Pt. 217) 259.” The reasoning of the Court is premised on the fact that an employer has unfettered powers to discipline its employee according to and in conformity with the terms and conditions, rules and regulation governing the contract of employment and the Court under no circumstances is expected to interfere in the employers disciplinary powers. See the case of Shell Pet. Dev. Co (Nig) Ltd v. Henri E. Omu [1998] NWLR (Pt. 567) 672. It is clear that the offence for which the claimant was compulsorily retired are according to the defendants, insubordination, absence from duty and alleged threat to life. These are acts of misconduct and serious misconduct under the Regulation governing the service of the senior staff of the defendant Exhibit VO. See chapter XII, clause 3 (a) (iv) as well as clause 4 (b) of the regulation of the 1st defendant, except the allegation of threat to life which I do not find in any of its statutes. The extant position of the law is settled as stated above by the Supreme Court that the defendants need not to have first try the claimant in a Court of law or wait for the outcome of the Court’s decision before exercising its disciplinary powers donated to it by Rule 5 of exhibit VO. It is on this premise that I find claimant’s averment in this regard unmeritorious and thus discountenanced. It is also germane to state here as regards relief C, that it is immaterial whether or not the act complained of is done outside official hours, what is material to this suit is that the alleged threat message was sent to the recipient in her official capacity as the Head of department of the claimant for which the 1st defendant has authority to investigate and discipline any erring officer, but has to do so in strict compliance with the disciplinary procedure envisaged by the University of Benin Act and the regulations governing the service of senior staff of the university of Benin. It is in this light that I find claimant’s relief C to be unmeritorious and thus dismissed. I so hold. It is the contention of the claimant as per his relief A, that the defendants’ act of compulsorily retiring him should be declared null and void as they failed or neglected to follow the procedure envisage in the University of Benin Transitional Provision Act UB4 especially S.17 in the Reversed Edition of law of the Federation Act 2004 dated 31st day of December, 2010. The defendants argued that they acted lawfully when they compulsorily retired the claimant from the employment as they duly complied with Section 17 of the University of Benin (Transitional Provisions) Act Cap 44 Laws of the Federation 2004 and Chapter XII (5)a of the Regulations Governing the Conditions of Service of Senior Staff, University of Benin being the relevant documents governing the relationship between the parties. Parties are in consensus with regards to the nature of the employment of the claimant as one being statutorily flavoured. The law is long settled that an employment is said to be one with a higher status than an ordinary master and servant where the conditions for appointment, remuneration and termination procedure are all embedded in a statute/regulation made under it. See the cases of Uba v Council Federal Polytechnic Oko [2012] 63 NLLR (Pt. 221) 72; Eze v N.A.M.A [2016] LPELR 41453. See also the case of Mobil Producing (Nig) Unltd v Johnson &Ors [2018] LPELR 44359 SC. The parties in this suit are in agreement that the law that binds the contract of employment between them are; The University of Benin Act Cap U4 LFN 2010 (hereafter referred to as “the Act”) and Regulations Governing the Service of Senior Staff University of Benin (hereafter referred to as “the Regulation”) both marked as Exhibit VO. As reiterated supra, the only area of discord here is, to the claimant, due process was not followed by the defendants when they unlawfully retired him from the employ of the 1st defendant. To the defendants, they complied in strict terms with the provisions of the conditions of employment of the claimant’s before he was compulsorily retired. It is now important to reiterate the settled position of the law, that where a statute has prescribed the manner of carrying out or the doing of anything, nothing short of that prescription will suffice. See the cases of Adeniyi v Governing Council of Yabatech [1993] 6 NWLR (Pt 426) 461; Olufeagba v Abdul-Raheem [2009] 18 NWLR (Pt 9) 599. It is equally trite that for an effective and just determination of a contract of employment protected by statute, the provision of the statute must be satisfied as a breach thereof renders the act of termination/dismissal ultra vires the authority and hence void. This is because the principle of natural justice is paramount in deciding a case of this nomenclature and this principle which is constitutionally assured is to certify that parties are given the required chance to be heard and present their cases in defence of the alleged offence against them. See the case of N.S.E & Anor v Engr Dr. C.C Katchy [2017] 7 NWLR (Pt. 1564) 278. In the case of Ridge v Balwin [1963] 2ER 66 at 144, The Court of England listed three attributes of fair hearing thus; 1. The right to be heard by an unbiased tribunal; 2. The right to have notice of charges of misconduct; 3. The right to be heard in answer to those charges. Fair hearing in essence lies in the procedure taken in the determination of a case and or as in this instance the procedure by an administrative body leading to termination or dismissal or retirement of an employee; and not in the correctness or rightness of a decision. What this implies is that every reasonable person/observer, who watches the proceedings, should be able to form an opinion that the Court/administrative body in the dispensation of the justice on the case has been fair to all parties involved. On the application of fair hearing in a disciplinary procedure leading to termination/dismissal/retirement of an employee, it is trite that where an employee is alleged of misconduct in an employment with statutory flavour, the determination of such employment must be done in the manner prescribed by that statute, this is premised on the reasoning that a breach of same or a deviation from the laid down principles, touches upon the foundation/root of the suit which will be declared null and void and of no effect by a Court of Competent jurisdiction. See the cases of PHCN Plc v Offoelo [2013] 3 ACELR, 1 @ P. 21; F.M.C v Alabi [2012] 3 NLLR, P.228 @ P.257-258; Chief Isaac Egbuchu v Continental Merchant Bank Plc & Ors [2016] LPELR 40053 SC. It is the law of common that employer must notify the employee by issuing him a written notification or query stating the grounds of the accusation against him, give him a chance to defend himself and invite him to make an appropriate representation or defence thereto, be given an opportunity to cross-examine his accusers, be allowed to call witnesses if any and the documents to be used against him must be given to him before the date of the panel to enable him satisfactorily prepare for what he would meet at the panel of the disciplinary committee, see the cases of Benin Electricity Distribution Company Ltd v. Esealuka [2013] LPELR-20159 CA, Audu v. Petroleum Equalization Fund Management Board & Anor [2010] LPELR-3824CA. As stated earlier, it is noteworthy that the grounds leading to the compulsory retirement of the claimant borders on insubordination, absence from duty and alleged threat to life of one Mrs Adenike Olayemi Ahkigbe (Associate Prof) Head, Biomedical Communication Unit, College of Medical Sciences. These acts of misconducts with the exception of the alleged threat to life are provided for in the Regulation of the 1st defendant and a cursory examination of same discloses at Chapter XII, Section 3A (iv) and Section 4B thus; “3 MISCONDUCT A DEFINITION Without prejudice to the interpretation clause of this regulation, misconduct is a specific act or wrongdoing or improper behaviour which can be investigated and proved it includes; Willful act, omission or general misconduct that scandalises the University or prejudices the discipline and proper administration of the University, e.g iv. Insubordination ….. 4. SERIOUS MISCONDUCT Without prejudice to the interpretation clause of this regulation, serious misconduct is a specific act of a very serious wrongdoing and improper behaviour which can be investigated and proved it includes; ……. B. Absence from duty” Also an examination of Exhibit VO which is the Act and Regulation Governing Senior Staff of the University of Benin Chapter XII Rule 5 which is the disciplinary procedure for misconduct and serious misconduct makes provision for the procedure to be followed by the defendants in disciplining their staff, first any superior officer who is dissatisfied with the behavior of any of his subordinates is to inform the 4th defendant in writing giving the details of such unsatisfactory behavior; the 4th defendant shall issue a query to the staff concerned eliciting a response from him, if he finds that the officer has exculpated himself, he writes informing him of that, but where he finds that the officer has not so exculpated himself, he may be warned or reprimanded, or the 4th defendant may initiate a procedure for termination/dismissal/retirement of the employee concerned. The procedure by rule 5 B, is that the 4th defendant shall notify the staff in writing of the grounds on which it is proposed to terminate/dismiss/retire him and the officer will in turn reply to same. The Vice Chancellor [hereafter called The VC], may suspend the officer pending investigation or interdict an officer. By clause 5 B (III), an Ad Hoc Committee of Enquiry shall be set up by the Head of department, Dean, Provost, Director in consultation with the VC as the case may be to investigate the alleged misconduct. The Committee shall consist of three persons one of which shall be a representative of the relevant union which the staff under investigation is a member. The terms of reference of the committee shall be stipulated by the VC. The officer under investigation must be given opportunity to put questions to each witness called by the ad hoc Committee, No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto, if the officer fails to make representation, the committee may take appropriate action and if he makes representation and the committee is dissatisfied with his explanation, it shall make appropriate recommendations. Section 17 of the Act which is impari materia with Rule 5 B IV of the regulations, provides for the Removal of academic and administrative officers and other staffs as captured hereafter thus: 1. If it appears to the Council that there are reasons of believing that the Deputy Vice-Chancellor or any other person employed as a senior member, administrative, technical or professional staff of the University should be removed from his office or employment on the ground of misconduct or of inability to perform the function of his office or employment the council shall- a. Give notice of those reasons to the person in question; b. Afford him an opportunity to make representation in person on the matter to the council c. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement i. For a joint committee of Council and to Senate to investigate the matter and to report in it on the Council; and ii. For the person in question to be afforded an opportunity of appearing before, and being heard by, the committee with respect to the mater And if the Council, after considering any representation and report made in pursuance of this subsection, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.” I wish to reiterate that it is the law of long standing that any public body like the defendants charged with the power to employ staff must act within the Statute creating it and within all other statutory provisions governing its procedure for employment, dismissal or termination of its staff under the contract of Service, in this case the Act and the regulation captured supra in this judgment. I need to say also that the provisions of both the Act and the regulations regarding the procedure for termination/dismissal/retirement must be read together and not in isolation. From the record of Court, it is seen that the claimant in this case was issued various queries between the period of 2001- 2004 on the grounds of lateness to work, absence from work and insubordination. On the 9th of May, 2016 vide Exhibit VO3 he was again issued a query signed by one S.O. Ogbemudia for the Registrar, on the ground of insubordination, absence from duty and alleged threat to life of one Mrs Adenike Olayemi Ahkigbe (Associate Prof) Head, Biomedical Communication Unit, College of Medical Sciences. He responded to the query on the 16th of May, 2016 denying all allegations. On the 18th of May, 2016 by Exhibit VO6, he was invited to appear before the Senior Staff Disciplinary Committee, the report of the Senior Staff Disciplinary Committee held on the 16th, 17th, 18th, 19th 23rd, 24th and 25th of May, 2016 recommending that the claimant is to be compulsorily retired (Exhibit UO5), the Governing Council’s decision dated 20th of June, 2016 (Exhibit UO4) and the letter of compulsory retirement dated 23rd of June, 2016 but with effect from 8th of June, 2016 are before the Court. It is the position of the defendants that the Senior Staff Disciplinary Committee (SSDC) of the 1st defendant is an off shoot of the 2nd defendant, i.e .the Governing Council of the 1st defendant and therefore, they need not constitute another committee to investigate the allegation against the claimant. Learned counsel to the defendants equally submitted at paragraph 4 page 4 of his final written address that the claimant was invited to an Ad hoc committee as well as the SSDC, which according to him is a body of Council statutorily charged with investigating such misconduct. The claimant stated that he was never invited before any Ad hoc Committee. The law is that he who asserts must prove the existence of his assertion. There is no evidence on record to evince that the defendants constituted an Ad Hoc Committee of three member as statutorily provided. It is also noteworthy that there is no iota of evidence before the Court that the SSDC as argued by learned counsel is statutorily charged to investigate allegations of misconduct. I cannot equally find any documentary evidence adduced on record that either the 2nd defendant, id est the Governing Council or the Registrar delegated their disciplinary powers under Section 17 of the Act or Rule 5 of the regulation to the SSDC. It is the law as held by the apex Court in the case of Dr. Tunde Bamigboye v. University of Ilorin & Anor, supra, cited by the learned defence counsel, “…that the Governing Council of the 1st defendant cannot validly abdicate its responsibility to the SSD and AC. In the instant case, the power of Council to discipline administrative, academic and professional staff of the University under Section 15(1) of University of llorin Act (ibid) was delegated to it by the University of Ilorin. The Council cannot therefore delegate this power to the SSD & AC which is itself a delegate of the Council”. Applying the above reasoning in Bamigboye’s case supra, to this instance as it relates to the status of the SSDC of the defendants in this case, and placing reliance on the firm and correct position of the apex Court, I find that the 2nd and 4th defendants cannot abdicate their responsibility under the law to the SSDC. In other words the power donated by the Act to the 2nd defendant to discipline administrative, academic and professional staff of the 1st defendant under Section 17 cannot be delegated to the SSDC. The 4th defendant is equally estopped from delegating his statutory powers to the SSDC. This is well stressed in the latin maxim delegatus non potest delegare. The law is that disciplinary powers cannot be delegated unless there is express statutory authority to do so. See Obayan v. University of Ilorin (2005) 15 NWLR (Pt. 947) 123, 156. It is on record that the claimant was issued with a query although not under the hand of the 2nd defendant but by one S.O.Ogbemudia, he was afforded an opportunity to make representation in person, however, there is no evidence as stated earlier in this judgment that an Ad-hoc Committee was constituted by the claimant’s unit head, or Provost to look into the matter, there is likewise nothing on record to evince that he was allowed to cross-examine the witnesses called to testify against him. This became clear to me by exhibit UO5, i.e. the SSDC report, that the members put questions to the claimant and all the witnesses that appeared before them, instead of allowing the claimant to put questions to them as provided by Rule 5B (III)(C) of the regulation and what is more, a careful look at Exhibit UO5 tendered by the defendants discloses that three out of the SSDC members namely (Professor Mrs. Lillian I Salami, Dean Faculty of Education, Council Representative Member), (Prof F.O Ekhiase, Dept of Microbiology, Senate Representative Member),(Prof F.O Okunbor, Senate Representative Member) that allegedly investigated the allegation levied against the claimant did not sign the report and the defendants failed or refused to canvass any evidence or proffer any reason for the unsigned members. This in itself impugns on the authenticity or validity of the SSDC report. It is imperative to state that the allegation of threat to life levied against the claimant is not listed under Rules 3 and 4 of the regulations. To this allegation it is interesting to note that the Head of Crime who questioned the claimant at the Security department and gave evidence at the SSDC stated at pages 88 and 89 of exhibit UO5, the purported SSDC report that he did not view the text message as a threat, rather it was the verbal altercation between Dr. Mrs Akhigbe and Mr. Omosigho (The claimant in this case). One then wonders why the 2nd defendant placed reliance on this report in the compulsory retirement of the claimant. If I may ask, was the claimant given notice of its intention to remove him from his employment by the 2nd defendant as required by Section 17 of the Act before it compulsorily retired him, was he invited to make any representation? The answer to both questions is in the negative. What is obvious on exhibit UO4 is that the 2nd defendant only gave approval to the recommendation of the SSDC of his compulsory retirement. Also, the record before me evinces that the claimants was compulsorily retired in retrospection. In other words claimant’s compulsory retirement was backdated. It is clearly written on exhibit VO2, claimants’ letter of compulsory retirement dated 23rd of June, 2016, is to the effect that “… you are hereby Compulsorily retired from the Service of the University with effect from 8th June, 2016.” An appropriate question to ask here is whether in an employment with statutory flavour an employer can just issue a letter of termination/retirement without more and with retrospective effect? The answer to this is found in the case of Cosmos C. Nnadi v National Ear Care Centre & Anor [2014] LPELR 22910 CA where the Court of Appeal held per Mbaba JCA held that in an employment with statutory flavour the employer cannot issue a letter of termination or dismissal to its employee with a back dating effect without following the procedure required by the statute regulating the employment. It is also plain that the defendants denied the claimant his right to fair hearing when it skipped the required due processes available to validly determine claimant’s employment. The Apex Court in the recent case of Akinola Arobieke v National Electricity Liability Management Company [2017] LPELR 43461 SC. held that the rules of fair hearing, natural justice can neither be negotiated/compromised/met half way nor waived/put aside. The reason is that any violation to that basic rule of fair hearing should automatically bring to a nullity whatever had been done in the process of enquiry embarked upon by the panel, judicial or administrative as it is clear that an employee’s right to fair hearing is sacrosanct/revered and or inviolable/inalienable. See also the case of Federal Polytechnic Mubi v T.L.M Yusuf [1991] 1 NWLR (Pt.165) p 81. I have no difficulty in holding that the compulsory retirement of the claimant vide a letter dated 23rd of June, 2016 and with effect from 8th of June, 2016, without recourse to the procedure outlined in Section 17 of the Act and Clause 5 of the University of Benin Senior Staff Regulations was ultra vires the powers of the defendants and therefore null and void, and claimant’s purported compulsory retirement is hereby declared invalid. It is consequently set aside. It is the claimant’s claim that he is entitled to an order of reinstatement to his position and be paid all his entitlements forthwith. It is settled law that where the statutory process required for disengagement of a statutory employment was not followed, decision reached will be void and the employee is entitled to be reinstated to his erstwhile position as it will be deemed as if he never left the employment. Reinstatement in labour law means placing back the claimant to the position he occupied before the unlawful removal. It is also trite law that where the Court finds in favour of the employee and orders for his reinstatement, the employee will be paid all his benefits and monetary entitlements from when his employment was determined till the day of his reinstatement. It is the claimant’s testimony on record that he has put into the service of the 1st defendant 34 years, 3 months, but contended that it is his age that will determine his retirement, according to him he can only be retired at age 65 years. I find by Universities (Miscellaneous Provisions) amendment Act 2012, which increased the retirement age of academic and non academic staff to 70 and 65 years respectively for academic and non academic staff, that the claimant’s retirement age is to be 65 years as he stated on record. The claimant stated that he has not yet clocked the retirement age. It is noteworthy that today when judgment is given that is 21st of November, 2018; he would have been 36 years and 8 months in the service of the 1stdefendant, however, his retirement will be dependent in this instance on his age if he is yet to reach the age of 65, he is still eligible to be in service as stipulated in the Universities Miscellaneous provision Act 2012. It is in this light that I find in favour of claimant’s claims for reinstatement. He is equally entitled to be paid all his salary and emolument from the date of his compulsory retirement till the date he clocks the retirement age of 65. I so find and hold. It is the contention of claimant that he is entitled to the sum of N20,000,000.00 (Twenty Million Naira only) damages for the act of the defendants that had caused the claimant pains and depreciation. It is the law of common that when a person whose employment is unlawfully determined is paid all his entitlements, he cannot get both his entitlements and damages at one and the same time as doing so will amount to double compensation which the law frown at. See the case of Texaco Nig Plc v Kehinde [2001] 6 NWLR (Pt. 708) 224. The claimant in this suit had already been awarded damages in lieu of his reinstatement and hence cannot be entitled to any other damages except if he has proven as alleged by him for pain and depreciation. I find that claimant has failed woefully to canvass evidence before the Court in prove of his relief V. It is upon this premise that I discountenance the claimant’s claim for damages in the sum of N20,000,000.00(Twenty Million Naira only). I so find and hold. It is apparent from all the above that claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows; 1. That the defendants are not required to first try the claimant in Court before exercising their disciplinary powers. 2. That the compulsory retirement of the claimant’s appointment with the 1st defendant is unlawful. 3. That the letter of compulsory retirement dated 23rd of June, 2016 but with effect from 8th of June, 2016 is null, void and hereby set aside. 4. That the claimant is to be reinstated to his position as a Senior officer of the 1st defendant. 5. That the claimant is entitled to his salary and emolument from 8th of June, 2016 when he was compulsorily retired unlawfully till the date of his reinstatement. 6. That claimant’s claim E fails. 7. That the defendants are to comply with this judgment within 30 days of this judgment, failing which the claimant’s entitlement is to attract 10% interest per annum. No order as to cost. Judgment is entered accordingly. Hon. Justice Oyewumi Oyebiola Oyejoju Presiding Judge
