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National Industrial Court

Prof. Innocent Okoye-VS- Kwara State University Malete & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

 

DATED: 24th February

                                                         

SUITNO: NICN/IL/06/2018    

 

BETWEEN

PROF. INNOCENT OKOYE                                              …… CLAIMANT

AND

  1. KWARA STATE UNIVERSITY MALETE
  2. KWARA STATE UNIVERSITY GOVERNING COUNCIL
  3. PROFESSOR ABDULRASHEED NA’ALAAH                    …..DEFENDANTS

(THE VICE CHANCELLOR, KWASU)                                          

 

REPRESENTATION:-

Y.A. Alajo for the claimant

I.O Atofarati for the defendants

 

 

JUDGMENT

  1. INTRODUCTION

1.1. The Claimant commenced this suit by a general form of Complaint dated and filed on the 7th August, 2018, and claims against the defendants as follows:

(i)                A DECLARATION that the termination of employment of the claimant as contained in the letter dated the 16/1/2018 written by the defendants is illegal, wrongful, null and void and of no effect whatsoever having been done in contravention of section 8 of the University condition of service and regulation and the rules of fair hearing.

(ii)             AN ORDER of this Honourable Court reinstating the Claimant as a Professor of Mass Communication in the 1st Defendant University without prejudice to his promotion, salaries and other entitlements.

(iii)           AN ORDER of the Honourable Court directing the Defendants to pay the Claimant’s salaries and entitlement from the time of the unlawful termination of appointment until he is reinstated.

(iv)           AN ORDER of this Honourable Court directing the defendants to pay a sum of N10,000,000.00 to the Claimant as damages for psychological and emotional trauma and agony which the action of the Defendants have occasioned to the claimant.

The Claimant filed along with the Complaint all the accompanying processes, i.e. the Statement of facts, Deposition on oath of the claimant, List of witness and documents to be relied upon.

  1. SUMMARY

2.1. Claimant’s Case

2.1.1.                    The Claimant’s case is that he was employed by the 1st Defendant in 2010, and the employment is statutory, permanent and pensionable in accordance with the provisions of the Nigerian Pension Reform Act 2004.  He added that by his letter of appointment, he is entitled to three (3) months’ notice before his appointment can be terminated.

2.1.2.                    The claimant pleaded that he is a strong member of the 1st defendant’s local branch of Academic Staff Union of Universities (ASUU) and had on many occasion vented out his disenchantment on the suppression of labour union in the 1st defendant by the 3rd defendant. This he said placed him at logger heads with the institution, consequent upon which he along with five other officers of the local chapter of ASSU were suspended by the 1st defendant sometimes in 2015, and the suspension was only lifted upon the intervention of the then Governor of Kwara State (the visitor to the 1st defendant).

2.1.3.                    The Claimant averred that he was issued with queries twice by the 1st defendant for holding an ASUU meeting on campus and responded to same.  He further averred that he was once issued a query by the Provost, College of Information and Communication Technology of the 1st defendant i.e. Professor Kazeem Gbolagade, for being absent at some statutory meetings held in the College. On 9/10/2017, the claimant averred that he was again issued a query based on the report submitted by the Surveillance and Vetting unit of the 1st defendant, alleging him of conniving with one Anthony Corsy to forge results for students who paid in cash or kind.  The claimant denied the allegations in his response to the said query and was invited to appear before the Senior Staff Disciplinary Committee of the 1st Defendant by a letter dated 24/10/2017. He pleaded that while appearing before the committee on 13/11/2017, allegations of extortion, forging of results for students as well as giving his password to one Anthony Corsy to forge marks for students, were leveled against him but the names of the students (the alleged complainants) were not disclosed and none of them was present before the committee.

2.1.4.                    He stated that he did not hear of any further development on the matter, until the letter dated the 16th January, 2018 titled “Termination of Appointment” was served on him.  He averred that the entire process leading to the termination of his appointment smacks of malice, injustice, vindictiveness and falls short of the requirement of law.

2.1.5.                    He averred further that sequel to the unlawful termination of his appointment, he was traumatized by the consequential stigmatization which the process brought upon him, as the news went viral on social media as well as on the University Bulletin.

2.1.6.                    The Claimant stated that upon receipt of the letter of termination of appointment on 18th of January, 2018, he wrote the defendants a letter of Appeal to reverse the said termination and a letter of reminder dated 27th March, 2018. The defendant acknowledged both letters, vide a letter dated 3rd of April, 2018, and confirmed the termination of his employment vide another letter dated 10th May, 2018. He thereafter caused his counsel to write the defendants giving a month’s notice of his intention to approach the Court for redress giving that he has exhausted the internal mechanism for the resolution of this issue and because the defendants failed, or refused to recall him to work.

2.1.7.                    WHEREOF he claims against the defendants jointly and severally as aforestated.

 

2.2.  Defendants’ case

2.2.1.                    The defendants filed their memorandum of appearance, statement of defence and all other processes on 10th December, 2018 and regularised same by order of court granted on the 12th of December, 2018. They denied all the averments in the Statement of Facts.  They averred that the claimant has ceased to be in the employment of the 1st defendant and that the 3rd defendant enjoys a cordial relationship with the recognised ASUU executive and members of the 1st Defendant.

2.2.2.                    The defendants in reaction to the averments in paragraphs 19 and 20 of the Statement of Facts, stated that the claimant and 5 others held a meeting in the premises of the 1st defendant without permission and were issued with queries by the 1st defendant leading to their suspension.

2.2.3.                    The defendants further pleaded that investigation by its surveillance and vetting unit revealed that one Mr. Anthony Corsy was using the claimant’s password with the claimant’s knowledge and approval to perpetrate acts of forgery, manipulation of results of students amongst other acts of misconduct. The claimant was therefore issued a query dated 9th October, 2017, based on the said allegation but his response was found unsatisfactory and the language discourteous, which again constituted an act of gross misconduct against the university. The defendants further averred that the claimant was later invited to appear before the Senior Staff Disciplinary and Sexual Harassment Prohibition Committee of the 1st defendant on 10th December, 2017, but failed to appear despite receipt of the invitation and the committee magnanimously gave the claimant another opportunity to appear on 13th December, 2017.  Upon the appearance of the claimant before the committee, all the allegations against him were read to him and he was given the opportunity to react to same.

2.2.4.                    The defendants averred that the claimant did not dispute his knowledge of the allegation of manipulation of result and award of marks arbitrarily to  students before the committee, but the Committee, after deliberating on the evidence presented before it, recommended the termination of the claimant’s employment. The defendants prayed the court to dismiss the claimant’s case for being vexatious, frivolous, gold digging, after thought and a cheap blackmail.

 

2.3.  Claimant’s Reply

2.3.1.                    On 3rd January, 2019 the claimant filed a reply to the defendants’ statement of defence.  He reiterated that he is one of the stakeholders of ASUU in the 1st defendant, who are properly recognized by the National Headquarters of ASUU and the defendants have always exhibited hostility towards himself and other members of ASUU.  He denied harassing the Chief Security Officer of the 1st defendant or anybody whatsoever as alleged. He further averred that the queries and suspension issued to him and other members of ASUU was subsequent to an ASUU meeting held in the premises of the 1st defendant and were vitriolic moves to witch-hunt, victimize and frustrate him and other members for their genuine union activism in the 1st defendant.  He denied giving any password to Mr. Anthony Corsy or any other person. He also averred that his reaction/answer dated 10th October, 2017 to the query of 9th October, 2017 is devoid of undignified, unguided and discourteous language and same does not amount to any gross misconduct.

2.3.2.                    The claimant averred in his reaction to paragraphs 29 and 30 of the statement of defence that he did not at any time impose any levy of N10,000.00k or any amount on students for the production of magazine for the department of Mass Communication and there was no shred of evidence adduced before the committee to the contrary.  He maintained that when he was confronted with the allegation of awarding marks arbitrarily to students for continuous assessment on MAC 308, he informed the committee that it was the HOD of his department, Dr. Muritada that persuaded him to complete the lectures in the said course, following the resignation of the lecturer taking the course less than one month to the conduct of the exams. The claimant informed the committee that the decision to award marks for the continuous assessment on MAC 308 based on a particular formula was taken at the Departmental Board meeting and the claimant told the committee to call Dr. Murtada to verify his claim but the suggestion was jettisoned by the committee who went ahead to find him culpable without any justification, all in an effort to nail him at all cost.

2.3.3.                    The claimant in response to averments in paragraphs 37, 39 and 48 of the Statement of Defence stated that the allegations against him were not proved before the committee and his defence to the allegations are satisfactory enough to an unbiased mind. The claimant concluded his Reply by pleading and relying on all relevant documents to the averments in the reply and put the defendants on notice to produce those in their possession at the trial.

 

3.0.          Trial

3.1.          Trial commenced in this suit on the 19th March, 2019 with the claimant testifying for himself as CW1. He adopted his witness statement on oath and tendered several documents which were marked Exhibits RK 1 – RK 30 and was cross examined.  The Claimant thereafter closed his case.

3.2.          On the 8th May, 2019, the Defendants opened their defence by calling three witnesses: Janet Oluwatobi Adeyemi, Mr. Abdulraheem T. Ambali and Mr. Mohammed Ibrahim Shiya as DW1, DW2 and DW3. They adopted their witness Statements on oath while DW3 tendered some Exhibits without objection and same were marked Exhibits KM1 – KM7. The witnesses were all cross examined, and the defence closed their case. The case was adjourned for adoption of final addresses, and parties adopted their addresses on the 9th of December, 2019.

4.0.          Final Written Addresses

4.1.          Defendants’ Final Written Address

4.1.1.   The Defendants final written Address dated 15th July, 2019 and filed 16th July, 2019, was adopted at the hearing by I.O Atofarati of counsel for the defendants wherein he formulated two issues for determination:

  1. Whether having regard to the facts, circumstances and evidence both oral and documentary led by the parties in this case; the claimant’s employment was not properly and legally terminated for acts of misconduct in accordance with the laid down rules and procedures.
  2. Whether the claimants’ reliefs are not liable to be dismissed in the circumstances of this case.

4.1.2.   On issue one, learned defence counsel submitted on behalf of the defendants that the claimant’s grounds for instituting this action can be gleaned from the pleadings and summarized as follows:

  1. That he did not commit the misconduct for which his employment was terminated;
  2. That the proceedings leading to the termination of his employment did not comply with the provision of section 8 of the university condition of service and due process of law.
  3. That the termination of his employment was malicious.

4.1.3.                    Learned counsel went further to submit that issues of misconduct of a staff in a university, as in this suit, borders on the domestic affairs of the University and to that extent, not ordinarily justiciable. He cited Magit v. University of Agric, Makurdi (2005) 19 NWLR (PT. 959) 211 AT 244, and argued that the proceedings of SSD&SHPC which found the claimant liable for acts of misconduct cannot be a subject of an appeal before this court and should not be seen as such. He posited that the court is merely to act in its supervisory role to ensure that the procedure laid down according to law, rules or regulation guiding the discipline of such staff were substantially observed. He cited the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 348 paras. A-B; and argued that all the facts pleaded and evidence led by the claimant in defence of the allegation made against him cannot be countenanced.  He submitted further that, there is no cogent evidence before this court suggesting that the claimant is not guilty of the misconduct he was accused of.  He cited the proceedings of the SSD&SHPC (i.e. Exhibits KM1-KM7), and stated that it presented overwhelming evidence that the claimant committed the misconduct. Learned defence counsel pointed out that, witnesses at the proceedings testified that the claimant arbitrarily awarded marks to students. This was further confirmed by DW1, DW2 and even the claimant under cross-examination when he confirmed that the mark awarded was for a continuous assessment that did not take place.

4.1.4.                     I.O Atofarati of counsel listed the claimants’ grouses against the process leading to the termination of his employment as follows: (i) That the names of the students and the complainants were not read out to him; (ii) That he was not given an opportunity to seek for any legal representation; (iii) Composition of the Disciplinary Committee was wrong; (iv) That he was not given fair hearing; (v) That he was confronted with a new allegation of arbitrary award of marks to students; and (vi) That the allegations against him were criminal in nature.

4.1.5.                    He drew the court’s attention to section 16(1) of the Kwara State University Law, which provides for the disciplinary procedure to be followed when a staff of the 1st defendant is accused of misconduct, noting that there are 2 mandatory steps to be observed as provided in paragraphs (a) and (b) of the section. He argued that in compliance with the provisions of the law cited and as a result of the allegation made against the claimant Exhibit RK17 was given to the claimant on 10th November, 2017 inviting him to appear before the SSD&SHPC of the 1st defendant.  The defendants counsel submitted that the claimant appeared before the committee, where he was confronted with the allegation against him and witnesses were called in proof of same and he was equally allowed to defend himself. Counsel therefore submitted that the Law was aptly and duly followed in terminating the claimant’s employment.

4.1.6.                    On issue two above, learned counsel submitted that there is no evidence from the claimant to substantiate his assertion that he did not commit the misconduct for which he was found liable by the Disciplinary Committee or to establish his claim that he was not allowed to defend himself with legal representation before the committee. He therefore surmised that the claimant’s declaratory relief must fail on this score alone, even in the absence of the defendants’ defence.

4.1.7.                    He added that the claimant has failed to establish before the court that he was not given notice of the misconduct and that he was not given an opportunity to make representation as required by the law, giving that the claimant himself tendered Exhibit RK17. He referred to the position of the law, that a declaratory relief cannot be granted on the admission of the Defendant citing BELLO V. EWEKA (1981) 1 SC 63.

4.1.8.                    On reliefs 3 and 4, the defence counsel submitted that they are bound to fail because the defendants have every power in law to terminate claimant’s employment if he is found liable for acts of misconduct as in the instant case.

4.1.9.                    In conclusion, he urged the Court to strike out the claimants’ reply and dismiss the case in its entirety.

4.2. Claimant’s Final Written Address

4.2.1.                    The claimant’s final written address was dated and filed on 30th September, 2019 wherein Y.A. Alajo of counsel for the claimant formulated two issues for determination to wit:

  1. Considering the facts and circumstances of this case, whether the termination of the claimant’s appointment can be justified and not liable to be declared null and void.
  2. Considering the fact and circumstances of this case, whether the claimant is not entitled to all the reliefs sought as per his claims.

4.2.2.                    On issue one above, Y. A. Alajo, of counsel submitted that the termination of the Claimant’s appointment by the Defendants cannot in any way be justified and same is liable to be declared null and void.  In his submissions, counsel to the claimant approached the issue under the following three sub-issues:

  1. Whether the laws regulating the appointment of the Claimant was strictly complied with,
  2. Whether the procedure adopted in the termination ensured the Claimant’s right to fair hearing, and;

iii.              Whether the allegation of misconducts upon which the termination was based had been shown to have been proved.

4.2.3.                    On sub-issue one, the claimant submitted that there is no doubt that the appointment of the Claimant with the Defendants was statutorily flavoured, as it is regulated by the Law that established the 1st Defendant. He maintained that where an employment is statutorily flavoured, its termination can only be valid and justified when the laws regulating same are STRICTLY complied with. Learned counsel referred to Exhibits RK24 and RK25 as the laws regulating the employment relationship of the parties in this suit and particularly Section 8.5 of Exhibit RK25 and Section 16 of Exhibit RK24. He submitted that all the steps listed in the provisions must be conjunctively followed, before the Defendants can be said to have strictly complied with the procedure for the termination of the Claimant’s appointment.  He argued that although the Claimant was issued a query as in Exhibit RK14 and he was invited to appear before the Disciplinary Committee vide Exhibit RK17, the essence of giving NOTICE of misconduct to the Claimant cannot be said to have been met in this case because the allegations in the two exhibits are confusing.  He argued that the allegations in Exhibit RK14 was for manipulation of result by some staff under the claimant; failure to report them to the University; releasing of his password to one Mr. Corsy and of dereliction of duty while in Exhibit RK17, the only allegation against the Claimant was the release of password to members of staff to upload examination results.

4.2.4.                    The claimant’s counsel maintained that the law is trite that in an employment with statutory flavour, procedure for termination of employment must be strictly complied with otherwise the termination will be nullified. He cited COUNCIL OF FEDERAL POLYTECNIC, MUBI vs. YUSUF (1987) 1 SCNJ 11 AT 17; NUHU vs. D.S.S, KWARA STATE COMMAND (2018) All FWLR (PT.959) 1214 AT 1230 PARA B – D

4.2.5.                    On the 2nd sub-issue, whether or not the procedure adopted in the termination of the Claimant’s appointment ensured his right to fair hearing, counsel to the claimant submitted that the law is settled that in the process leading to the termination of a statutorily flavoured employment, particularly on the ground of misconduct, the procedure to be adopted should be the one that ensures the right of fair hearing of the employee. He argued that the procedure adopted by the Defendants in this case by taking evidence of witnesses behind the Claimant in a proceeding leading to the termination of his appointment, bringing up new allegations of arbitral award of marks for Continuous Assessment Test in one of the proceedings of the Committee without notice and by allowing an interested/bias party to be part of membership of the Committee violated his right to fair hearing thus nullifying the termination of his appointment.

4.2.6.                    He reiterated that the law is long settled that in a disciplinary proceeding where evidence against an employee is received by an investigating committee behind or in the absence of the employee which led to the termination of his employment, the entire proceedings including the termination of employment will be nullified.  He referred the court to the Judgment of this Court delivered in Suit No.: NICN/1L/16/2017 – DR. KAYODE NIYI AFOLAYAN & ANOR vs. UNIVERSITY OF ILORIN & 3 ORS, page 21, and the case of PROF DUPE OLATUNBOSUN v. NISER (1988) 3 NWLR (Pt.80) AT 25.

4.2.7.                    On the 3rd sub-issue identified by the claimant’s counsel i.e. whether the allegation of misconduct upon which the termination of the claimant was based was proven, Counsel to the claimant submitted that the law is trite that in employment law when an employment is terminated on the ground of misconduct, it is incumbent on the employer to justify the termination, and demonstrate to the Court that the said misconduct was actually proved against the employee.  He cited SHELL PETROLEUM CO. LTD vs. OLANREWAJU (supra) AT 43 LINES 20 – 35.

4.2.8.                    The claimant’s counsel prayed the Court not only to discountenance the submissions of the Defendants spanning paragraphs 4.05 – 4.10 of their Final Written Address but to also hold that the termination of the Claimant’s appointment cannot be justified in the circumstances of this case and same is liable to be declared null and void.

4.2.9.                    On issue two, Y. A. Alajo, Esq. listed the Claimant main reliefs; a declaration that the termination of his employment is illegal, wrongful, null and void; an order directing the Defendants to reinstate him back to work and pay all his arrears of salaries from the date of the termination till the date of reinstatement; an order directing the Defendants to pay him a sum of N10,000,000.00 as damages for the psychological and emotional trauma and agony which the actions of the Defendants had occasioned.

4.2.10.                Learned counsel argued on the first relief, that the Claimant had shown in his arguments under issue one of his Address, how the provisions of the law were not strictly complied with in the processes leading to the termination of his employment. This he submitted led to a breach of his right to fair hearing/trial, counsel also pointed out that evidence and representations were taken from witnesses in his absence. In addition, the claimant’s counsel referred to the proceedings of the SSD&SHPC, where he was confronted with and found liable of fresh allegations without adequate notice of the particulars of the allegations. He therefore surmised that there is no doubt that the Claimant has proved his entitlement to all the reliefs sought.

4.2.11.                He argued that the law is trite that where the termination of an employment with statutory flavour is declared unlawful, null and void, the resultant effect is that the affected employee is reinstated back to his employment with all his entitlements and benefit paid as if the termination had not taken place.  He cited OLORUNTOBA-OJU & 4 ORS vs. ABDULRAHEEM & 3 ORS (2009) 5-6 S.C. (PT. II) 57 AT 111 Lines 10 – 20; OLUFEAGBA & 43 ORS vs. ABDULRAHEEM & 3 ORS (2009) 12 S.C. (PT. II) 1 at 42 Lines 15 – 20; NNOLI vs. UNTH MANAGEMENT BOARD (1994) 10 SCNJ 71 AT 75, 91-92.

4.2.12.                On the claim for damages for N10 Million by the Claimant, counsel submitted that the Claimant has proved various facts that will ordinarily persuade this Court to grant damages.  He submitted that when the conduct of a party which resulted in the injury suffered by another party is laced with oppression, insolence, spite and contempt for the rule of law, the court would be right in granting damages against the erring party. He thereafter cited the cases of ODIBA vs. AZEGE (1998) 7 SCNJ 119 AT 135 LINES 5-10 and DR. KAYODE NIYI AFOLAYAN & ANOR vs. UNIVERSITY OF ILORIN & 3 ORS (supra) .

4.2.13.                In conclusion, he prayed the Court to resolve issue two formulated by the Claimant against the Defendants and in favour of the Claimant.

4.3. Reply on Point of Law

4.3.1.                    The counsel for the Defendants on the 7th of October, 2019 filed a reply on point of law.

4.3.2.                    In reaction to paragraph 4.07 of the claimant’s final address, the Defendants submitted that the only document to be considered in determining whether or not the law was complied with in the termination of the employment of the claimant is the Notice of the Invitation (Exhibit RK 17), which by Law must contain the reasons or good cause to believe that a staff should be removed from office.

4.3.3.                    Also responding to paragraph 4.08 of the claimant’s final written address, that the defendants did not comply with subsection 2 of section 16 of Kwara State University, by not constituting an investigative panel to investigate the allegations against the claimant, the defendants submitted that the said paragraph is not applicable to the instant case, as the option can only be exercised upon the application of any 3 members of the Council or the claimant himself, which was  not the situation in the instant case. He continued that it is not the claimant who has the power to determine who should be in the committee and who should not, as there is no law preventing Professor Kazeem Gbolagade from being a member of the committee.

4.3.4.                    In conclusion, the defendants urged the court to resolve all the issues in favour of the Defendants and strike out and/or dismiss the Claimant’s case.

5.0.          Evaluation

5.1.          I have thoroughly considered the pleadings, evidence and arguments on both sides and I have found that the following issues will effectively determine this suit:

  1.  Whether or not the termination of the claimant’s employment is valid.
  2. Whether or not the claimant is entitled to the reliefs sought.

5.2.          I will however be considering some preliminary issues before delving into the substantive issues for determination as identified above. It will be recalled that the defendants’ counsel in the course of trial raised an objection as to the admissibility of Exhibits RK1- RK30 tendered by CW1. Learned defence counsel however elected to defer the argument on same to the final written address stage. The defence counsel however failed to address the court on his objection in his final address, and consequent upon this, I find that the objection is deemed abandoned and same is hereby discountenanced. I so hold.

5.3.          On the first issue for determination, it is an established position of the law that a contract of employment is the cornerstone upon which a contract of employment rests. It is also trite law that an aggrieved party bears the burden to plead and prove before the court the contract of employment and how the contract was breached. See West African Examination Council &Ors. v Mrs. Nkoyo Edet Ikang (2011) LPELR-5098(CA). This position is in consonance with the provisions of Sections 131, and 132 of the Evidence Act 2011. It follows therefore that it is the duty of the Claimant in this case to plead and prove before this court his contract of employment and how it was breached by the defendant. In discharge of this duty, the claimant tendered Exhibits RK1-8 in proof of his employment and Exhibits RK9-RK22 in proof of how the contract of employment was breached by the defendants in this suit.

5.4.          The position of the law is trite that there are three categories of contracts of employment, that is (i) those regarded as purely Master and servant, (ii) those where a servant holds office at the pleasure of the employer and (iii) those where the employment is regulated or governed by statute otherwise known as having statutory flavor. See the case of Seven-Up Bottling Company Plc. V Ajayi (2007) LPELR-8765 (CA). There is no dispute about the nature of the employment between the parties in the present suit, as the pleadings and evidence of both parties are in tandem that the claimant is in a statutory employment subject to Exhibit RK24 (Kwara State University Law) as well as Exhibit RK25 (Kwara State University Conditions of Service and Regulations Senior Staff). Also undisputed is the fact that the claimant was dismissed after the disciplinary proceedings initiated by the defendants.

5.5.          It therefore follows that what is to be resolved by the court in this suit is, whether the conditions contained in the statutes guiding the employment were duly followed by the defendants in the termination of the claimant’s employment. I agree with the defence counsel’s submission that the court will not and should not interfere in the internal affairs of a University such as the 1st defendant. This position is however not absolute and in order to successfully and effectively resist the interference by the court in its affairs, the defendants must be seen to have acted within its powers. See Mobil Oil (Nig.) Ltd. & Anor v S.T. Assan (2002) LPELR-5861(CA) Pg. 14.  This position is put in proper perspective by Agube JCA when he held in University of Ilorin V. Rasheedat Adesina (2008) LPELR-5072(CA) that:

“The court cannot and will not usurp the functions of the Senate, the Council and the visitor of the University… If however, in the process of performing their functions under the law, the civil rights and obligations of any of the students or candidates is breached, denied or abridged it will grant remedies and reliefs for the protection of those rights and obligations.”

It therefore follows that the only condition upon which this court will interfere in the instant suit is, if the defendants in the course of the dismissal of the claimant, breached his civil rights and obligations.

5.6.          Further on this, Aji JCA, held in the case of Obiageli v Federal College of Education, Zaria& Ors. (2014) LPELR-24010 (CA) as follows:

“It is trite law that where an order or decision is reached by anybody exercising judicial function and that order or decision passed is in violation of the fundamental right of a person guaranteed under the Constitution or violates the principles of natural justice and or ultra vires the provisions of the relevant law, then the court of law can invoke its jurisdiction under the 1999 Constitution of the Federal Republic of Nigeria as amended to interfere with and set aside such order.”

5.7.          In the instant case, the claimant is challenging the termination of his employment on the ground amongst others, that the dismissal of his appointment was done in breach of his right to fair hearing which I find is guaranteed under Section 36(1) of the CFRN 1999, and this was pleaded by him in Paragraph 50 of the statement of facts. Thus, having raised a complaint for the breach of his right to fair hearing, this court retains the duty to ensure that, indeed the claimant’s rights was not breached by the defendants in the cause of his dismissal.

5.8.          In determining whether the civil rights of the claimant was breached, I will first and foremost consider Exhibit RK 14 (query dated 9th October, 2017) which initiated the proceedings leading up to the claimant’s termination. I will pause at this juncture to reproduce the content of Paragraphs 1-4 of Exhibit RK14 for the sake of clarity:

“A report submitted to the University Management by the Surveillance and Vetting Unit Indicates that despite being aware that some members of staff under you are indulging in corrupt practices yet you failed to report this misconduct to the University.

To wit you are aware that one Mr. Anthony Corsy has been forging results/grades for students who either pay in cash or kind because you intentionally released your password to him and he has abused the privilege by perpetrating this unwholesome act.

The management has deemed your action of concealing such malpractices in your Department as dereliction of duty which is misconduct and not only contravenes regulation but also prejudicial to discipline and good conduct expected of any staff member of the University.

Accordingly you are to explain in writing within 24 hours of receipt of this query, why disciplinary action should not be taken against you.”

5.9.          It is clear from the above content of Exhibit RK14 that the subject matter of the allegations against the claimant is the release of password and concealment of malpractice by some members of his staff. The claimant responded to the query, and was later invited vide Exhibit RK17 to appear before the University’s Senior Staff Disciplinary and Sexual Harassment Prohibition Committee(SSD&SHPC) to answer to allegations on the release of password to members of staff to upload examination result. This according to the defendants was because they found Exhibit RK15 (claimant’s reply to Exhibit RK14) unsatisfactory. It is on record that the defendants relied on Exhibit RK14 as the document notifying the claimant of the allegations against him, see DW3’s testimony under cross-examination where he stated that:

“The allegation against the claimant is contained in Exhibit RK14.”

5.10.      The procedure to follow in the dismissal of an employee of the 1st defendant, are well captured in Exhibits RK24 and RK25, and a careful study of the provisions of Section 16 of Exhibit RK24 (Kwara State University Law) and Section 8 of the Exhibit RK25 (the 1st defendant’s condition of service for senior staff) reveals the following provisions;

5.11.      Section 16 of Exhibit RK24 ;

  1. (1) If the Council has reason or good cause to believe that any person who is employed as a member of the staff of the University, other than the Vice Chancellor, should be removed from his office or employment, the Council shall:-

(a) give notice of those reasons to the person in question;

(b) afford the member an opportunity of making representations in person on the matter to the Council, and

(2) If the member of staff in question or any three members of the Council so request within the period of one month from the date of the notice, the Council shall make arrangements:

(a) for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; or

(b) for a Committee of the Council and the Senate to investigate the matter and to report on it to the council; or

(c) for the member of staff in question to be given an opportunity of appearing before and being heard by the Investigating Committee with respect to the matter.

(3) If the Council, after the consideration of the Investigating Committee’s report is satisfied that the member in question be removed, the Council may cause the removal of the member in writing.”

5.9.           Section 8.5 (i) to (ii) of Exhibit RK25 provides as follows:

8.5 REMOVAL OF AND DISCIPLINE OF ACADEMIC, ADMINISTRATIVE AND PROFESSIONAL STAFF:

(i) If it appears to the Council that there are reasons for believing that any person employed as a member of the Academic or Administrative or Professional staff of the University, other than the Vice Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall:-

  1. a)give notice of those reasons to the person in question;
  2. b) afford him an opportunity of making representations on the matter to the Council; and
  3. 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 arrangements:

(i) for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; and

(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

5.10.       It is a settled position of law that an employment clothed with statutory flavour must be terminated in the way and manner prescribed by the relevant statute as any other manner which is inconsistent with the statute will be declared null and void and of no effect. See Tsemwan & Ors. v Governor of Plateau State & Anor. (2012) LPELR-7922(CA).

5.11.      It is pertinent at this point to allude to the argument of the claimant’s counsel in his final address with regards to the provisions of Section 16(2) of Exhibit RK24, he premised his argument on the fact that the claimant was not given an opportunity to request for a joint committee of Council and Senate to investigate the allegation against him and report to the Council. I have carefully scrutinised Section 16 (2) of Exhibit RK24, and discovered that this committee can only be constituted at the request of the claimant or at least three members of Council, and since this was not done from the facts and evidence available in this case, the provisions therein cannot be activated, thus the argument of the Claimant’s counsel on this goes to no issue.

5.12.      A very vital question that remains to be answered is, can the claimant’s employment be said to have been terminated by the defendants in the way and manner prescribed by the relevant statute governing the employment relationship? A close examination of Exhibit RK14 i.e. query, reveals that it was issued by the Registrar of the university on the authority of the management of the 1st defendant, see particularly paragraph 1 of Exhibit RK14 which reads: “A report submitted to the University Management by the Surveillance and Vetting Unit…” and paragraph 3 of the same exhibit reads “The Management has deemed your action of concealing malpractices in your department as dereliction of duty…”

5.13.      Meanwhile, the provisions of Exhibits RK24 and 25 are as follows

  1. (1) If the Council has reason or good cause to believe that any person who is employed as a member of the staff of the University, other than the Vice Chancellor, should be removed from his office or employment, the Council shall:-

(a) give notice of those reasons to the person in question;……….

5.13.      It is an unassailable position of the law that that where the words of a statute are plain and unambiguous, effect must be given to them in their ordinary meaning, see James v INEC & Ors. (2015) LPELR-24494(CA) also, the express mention of one thing is to the exclusion of others, see Donbraye & Ors v Preyor & Ors. (2014) LPELR-22286(CA). The wordings of Section 16 of Exhibits RK24 and Section 8.5 (i)(a) of RK25 are im pari materia, plain and unambiguous thus this court will give effect to their simple literal grammatical meaning. In a nutshell, the Council is the only body empowered to issue notice where it has a reason or good cause to believe that any person who is employed as a member of the staff of the University, should be removed from his employment.

5.14.      A comparative analysis of Section 8.5(iii) of Exhibit RK25 reveals that in the dismissal of an employee of the 1st defendant; “…the council may so remove him by an instrument in writing signed on the directives of the Council.” Thus, there is an express provision for the issuance of a written instrument to terminate the employment of an Academic, Administrative or Professional staff of the 1st defendant, on the authority of the Council that must be strictly complied with. In the same vein, the specific provision as to who is empowered to issue notice of reasons for removal of a staff is bestowed on the Council by virtue of Section 16 (1)(a) of Exhibit RK24 and Section 8.5(i)(a) of Exhibit RK25.

5.15.       There is no dispute that the issuance of Exhibit RK14 initiated the disciplinary proceedings against the claimant. However, I find that the issuance of RK14 is not in consonance with the provisions of the law, as there is no evidence that the Council delegated the power to issue same to the Registrar or any iota of evidence that the Council and Management are the same. On this, I have recourse to the provisions of Section 41 of Exhibit RK24 i.e. the Interpretation Section which defines Management Committee as the “Management Committee of the University”, and, Article 4(1) of the Third Schedule of Exhibit RK24 which listed the composition of the Management Committee of the 1st defendant as follows:

  1. a)The Vice-Chancellor who shall be the Chairman;
  2. b)The Deputy Vice-Chancellor;
  3. c)The Registrar;
  4. d)The Bursar;
  5. e)The University Librarian;
  6. f)The Chief Security Officer;
  7. g)All Provosts of Colleges;
  8. h)All Deans of Faculties;
  9. i)Directors of Institutes and Centres;
  10. j)Director of Academic Planning Unit;
  11. k)Director of Physical Planning Development and Maintenance;
  12. l)Director of University Health Service; and
  13. m)Such other persons as may be appointed to be on the committee.

5.16.      The above provisions reinforces the fact that the Management of the 1st Defendant is not the Council of the University. In addition, the evidence of DW2, under cross-examination, that he submitted the report of the investigation of the claimant to the Vice Chancellor of the 1st defendant resonates and the content of Exhibit RK14 written by the Registrar of the 1st defendant on behalf of the Management as distinct from the Council affirms the above. This position was well considered in, University of Ibadan v Clement Edem Bassey (2016) LPELR-41117(CA) Pp. 15-18, where Daniel-Kalio JCA held as follows;

“Now it is settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with such statute, law or rule before such disciplinary action can be justified… There is no gainsaying the fact that the council is not the Vice-chancellor. A close look at the query issued to the Respondent shows that it was issued at the instance of the Vice-chancellor and not the council… The Vice-chancellor by issuing the query as indicated above, sought to supplant the council whose responsibility it is to give the query… There is no delegation of power of the council to the Vice-Chancellor under that Section…. In this case, the provision of Section 9(3) of the University of Ibadan Act is specific and non-compliance with it means that the respondent was not properly dismissed from the employment of the University of Ibadan.”

I therefore hold premised on the above that Exhibit RK14 usurped the power of the council to issue notice/query to the claimant in this case and is therefore in breach of Exhibits RK24 and 25.

5.17.       It is in view of the non-compliance to the provisions of the statutes guiding the claimant’s employment that I find that the entire process leading to the termination of the claimant’s appointment, having been done in breach of Exhibits RK 24 and 25 is fundamentally flawed and invalid.

5.18.      I will now go on to consider Exhibits KM 1-7 which contains the minutes of proceedings of the Senior Staff Disciplinary/Sexual Harassment Prohibition Committee against the claimant and the final report. It is evident that Exhibit RK 14 (query) and Exhibit RK17 (invitation to SSD&SHPC) mainly dwelt on allegations of release of Password to one Mr Corsy and concealment of malpractice in his department. The claimant upon his appearance before the committee was confronted with additional allegations of failure to conduct continuous assessment leading to arbitrary award of marks and extortion of students which were not contained in either of Exhibits RK14 and 17.

5.19.      The proceedings of the committee clearly reveals that these new allegations were considered in  the dismissal of the claimant, see in particular, paragraph 7 of page 29 of Exhibit KM7 (Report of the SSD&SHPC) which reads as follows:

“OBSERVATION/FINDINGS

Committee noted that Prof. Okoye could not produce the Continuous Assessment for MAC308 that he was requested to present, rather he explained that he used a formula to arrive at the scores for Continuous Assessment which was found not to be in compliance of the rules and regulations of the University.

FINDINGS ON RESULT MANIPULATION

  1. That Continuous Assessment test was not conducted for MAC308 as claimed by the students.
  2. That on second thought, Prof. Okoye agree that Continuous Assessment was worked out in a formula in place of the Continuous Assessment that was inconsistence with the University Rules and Regulations.

iii.            That Prof. Okoye stressed that it was a Departmental Policy/Decision even though he never attended the Departmental Board Meetings.

  1. That based on the so-called policy, the overall grading of students did not reflect the so called departmental policy in calculating the Continuous Assessment because the result does not give accurate marks based on the Formula. He gave one student 24 marks in examination and scored him 23 in Continuous Assessment.
  2. That even though when Prof. Okoye left the Department for sabbatical in Kaduna State University, he was still consulted by Mr.Corsy for Direction.
  3. That Pro. Okoye agreed that Mr. Corsy could be tricky and that he had integrity problem even though he trusted him.

vii.            Prof. Okoye relied heavily on Mr. Corsy because of his knowledge of the computer and later found him (Corsy) to be tricky.

viii.            That in totality, the evidence given by Prof Okoye amounted to dribbling and lying to cover-up with one lie or the other.

14.0 RECCOMMENDATIONS

The Committee hereby recommends termination of the appointment of Prof. Innocent Okoye with immediate effect to sanitize the Department and the integrity of the University.”

5.20.       It is on record that DW3 admitted that the additional allegations on award of marks was not contained in Exhibit RK14 when he stated under cross-examination that:

 “It is true that it was not stated that the allegation of awarding marks is contained in Exhibit RK14 but the password the claimant released can be manipulated to do anything.”

5.21.      The above state of affairs clearly violates the provisions of Sectiono16 of Exhibit RK24 and Section 8.5 of Exhibit RK25 which requires that the claimant shall be informed in writing, of the reasons for his possible removal. The SSD&SHPC in considering the fresh allegations made against the claimant during the course of their proceedings which led to the dismissal of the claimant clearly violated the above requirement.

5.22.      A further perusal of Exhibit KM2 (record of the 1st sitting on 10th November, 2017), reveals that the committee proceeded to take testimonies of witnesses in the absence of the claimant on the allegations made against him. This is in clear breach of the claimant’s right to fair hearing and raises a likelihood of bias. See Prof Dupe Olatunbosun V. NISER (1988) SC 3 NWLR Pt 80 25, it was rightly pronounced;

“One of the essential elements of fair hearing is that the body investigating the charge (in the case of misconduct) must not receive evidence or representation behind the back of the person being investigated. This was our decision in Garba V. University of Maiduguri 1986 1 NWLR 550 @ Pg, 618. In that case the court also added that the court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might, the risk of it is enough”

5.23.      A quasi- judicial body such as the SSD&SHPC in this instance, should not and must not hear evidence behind the person accused of misconduct in line with the tenets of fair hearing and natural justice. This is so because the person being investigated must be given an opportunity to cross examine the witnesses called on the allegation and also allowed to call his own witnesses. Non-compliance with this basic principle raises a likelihood of bias which will vitiate the entire process and the court will not necessarily go into whether or not this is prejudicial to the claimant, as the risk of same will be enough, see Shell Petroleum Development Co. Ltd v Olanrewaju (2008) 12 S.C (Pt. III) 27. It can be rightly stated therefore, that notwithstanding the argument of the defendant that the witnesses that testified before the SSD&SHPC in the claimant’s absence were later recalled to testify and confront the claimant, the likelihood of bias was already an issue at that point. On this, see Aguomba v Uwais (2006) LPELR-9322(CA) where in Peter-Odili JCA held as follows:

“…in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice or whoever it may be who sits in judicial capacity… The court looks at the impression which would be given to other people… There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman as the case may be would or did favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough, Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking. The judge was biased.”

5.24.      The legal view on taking evidence behind a party contending lack of fair hearing was further espoused by Peter-Odili JSC in the case of Judicial Service Commission of Cross River State & Anor. V Dr, (Mrs). Asari Young (2013) LPELR-20592(SC) where he held:

“…the concept of fair hearing is not one that allows a staggered process within which a party may be given fair hearing on certain days, while evidence is taken behind his back on other days and back to being put in the picture subsequently, a situation reminiscent of patchwork…”

In all I find premised on the above that that the action of the committee in taking evidence behind the claimant and thereafter recalling the witnesses raised a likelihood of bias and is against the principles of fair hearing and natural justice.

5.25.      Another aspect of the proceedings before the SSD&SHPC that is instructive is the evidence of the claimant before the committee that the decision to award marks for MAC308 without the requisite continuous assessment test was reached by the departmental board along with Dr Murtada, the claimant’s Head of Department. It is also on record, that the claimant told the committee that it was the same Dr Murtada who earlier convinced him to take the course after the departure of the lecturer that was initially handling the course. It is however curious that the committee did not call the said Dr Murtada to confirm or deny the claimant’s assertion. This failure to call the departmental head of the claimant to clarify the role of the department in awarding marks for the continued assessment was not explained and this created an impression that the committee had pre-judged the matter in addition to raising a likelihood of bias. In Okezie v Chairman, Medical and Dental Practitioner Disciplinary Tribunal (2010) LPELR-4717(CA). (p.19, para. E-F) Galinje J.CA held that:

“It is the duty of the prosecution to call all vital witness whose evidence will help the Tribunal reach a just decision. Although, the prosecution need not call a host of witnesses on the same point, where there is a vital point in issue and here is a witness whose evidence will settle it one way or the other that witness ought to be called.”

5.26.      The issue of award of marks was a live issue before the SSD&SHPC, it would have been in the interest of justice and fairness to call the said Dr. Murtala who could have shed light on the issue before the committee, but this was not done.

5.27.      It is settled law that where it is found that there is a breach of fair hearing in the proceedings of any tribunal/investigation panel any act founded thereon is a nullity, see Egbuchu v Continental Merchant Bank Plc& Ors 2016 LPELR 40053 SC.

5.28.      It is based on the foregoing that I find that the procedure leading to the termination of the appointment of the claimants is flawed as the Defendants did not follow the principles of fair hearing in the termination of the appointment of the Claimant as provided in the Kwara State University Law, 2008 and Kwara State University Conditions of Service and Regulations. Consequent upon the above, the letter dated 16th January, 2018, terminating the claimant’s appointment with the 1st defendant is hereby declared unlawful. I so hold.

5.29.      On the second issue formulated by me, I find that the first relief sought by the claimant in this suit is a declaratory relief. It is settled law that the fundamental requirement for the grant of a declaratory relief is that the Court must be satisfied the that the claimant is entitled in law to the relief sought, see NASCO Town Plc. v Mr. Festus Ude Nwabueze (2014) LPELR-22526(CA). Also, the consequence of the termination of a statutory employment in a manner that is inconsistent with the statute is that same will be declared null and void and of no effect, see Tsemwan v Governor of Plateau State & Anor (Supra) Having held that the termination of the claimant’s employment is unlawful, I am satisfied that the claimant has established by cogent evidence that he is entitled to this relief. Consequently, I hereby declare the termination of the claimants employment is unlawful, null, void and of no effect. I so hold.

5.30.      On reliefs 2, 3, and 4, the law is settled that the remedy for the unlawful termination of a statutorily flavoured employment is reinstatement, see Yemisi v Federal Inland Revenue Services (2012) LPELR-7964(CA) (Pg.32), the employment of the claimant will be deemed to have continued from the date of the termination, see AlHassan v Amadu Bello University, Zaira & Ors. (2009) LPELR-8138(CA). In the circumstances of this case and the holding above, I hereby order that the claimant be reinstated to his position as a professor of Mass Communication in the 1st defendant University. I so hold.

5.31.      In CBN &ANOR V.IGWILLO (2007) 14 NWLR (Pt.1054) 393, Akintan JSC held:

“Where an employee’ service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition, damages representing his salaries during the period of the purported dismissal”

5.32.      Further and on the strength of the above, I find that the claimant is entitled to arrears of his salaries and entitlements from the time of the unlawful termination of his appointment till he is reinstated, relief 3 therefore succeeds. The defendants are to pay to the claimant his salaries and entitlements from the time of the unlawful termination of his appointment till he is finally reinstated.

5.33.      The claimant also sought an order of this Court directing the defendants to pay a sum of N10,000,000.00 to him as damages for psychological and emotional trauma and agony which the action of the Defendants have occasioned to the him. Onoghen JSC held in Ex Captain Charles C. Ekeagwu V. The Nigerian Army & Anor. (2010) 16 NWLR 49 that;

“I am however unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salaries/ emoluments including fringe benefits up to the point/ time of reinstatement and thereafter as and when due and payable.”

5.34.      Awarding damages to the claimant after the grant of relief 3 above will amount to double compensation in this suit. The payment of the arrears of salaries and entitlements is sufficient and adequate for the claimant in the circumstance of this case. Consequently, the claimant’s fourth relief fails. I so hold.

6.0.          CONCLUSION

In conclusion, I find that the claimant succeeds in part and I hereby declare and order as follows –

  1. The termination of the Claimant’s appointment vide later dated 16th January, 2018 is unlawful, null, void and of no effect.
  2. The letter dated 16th January, 2018 terminating the claimant’s appointment is hereby set aside.
  3. The Defendants are hereby ordered to reinstate the Claimant as a Professor of Mass Communication in the 1st Defendant University.
  4. The Claimant is entitled to the payment of his salaries and entitlements to be paid by the 1st defendant from the date of the unlawful termination of his appointment until he is finally reinstated.
  5. Relief four fails

 

A cost of N100,000.00k is awarded against the Defendants

 

 

Judgment is accordingly entered.

 

 

HON. JUSTICE A.A. ADEWEMIMO

 

Presiding Judge

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