PROFESSOR J. ADEPOJU AKINYANJU V. UNIVERSITY OF ILORIN & ORS.
In The Court of Appeal of Nigeria
On Monday, the 1st day of November, 2004
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
DAVID ADEDOYIN ADENIJI Justice of The Court of Appeal of Nigeria
PROFESSOR J. ADEPOJU AKINYANJU Appellant(s)
- UNIVERSITY OF ILORIN
2. THE GOVERNING COUNCIL, UNIVERSITY OF ILORIN
3. STAFF DISCIPLINARY AND APPEALS COMMITTEE, UNIVERSITY OF ILORIN
4. LT. GENERAL SALIU IBRAHIM (RTD.), Pro-Chancellor and Chairman Governing Council, University of Ilorin
5. PROFESSOR SHUAIB O. ABDULRAHEEM, Vice-Chancellor, University of Ilorin
6. PROFESSOR O. O. BALOGUN, Deputy ViceChancellor and Chairman Staff Disciplinary and Appeals Committee, University of Ilorin
7. MR. MURTALAT.BALOGUN, Registrar and Secretary to Governing Council, University of Ilorin Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivered the Leading Judgment): This is an appeal against the decision of the Honourable Justice Olayiwola of the Federal High Court, Ilorin Division delivered on the 22nd day of May, 2003. This suit emanates from a suit filed by the plaintiff, now appellant, pursuant to the Federal High Court (Civil Procedure) Rules, 2000, challenging the lawfulness and constitutionality of the disciplinary steps being taken by the defendants, now respondents against him.
The appellant, to be precise, in the originating summons filed before the lower court and dated 22nd day of March, 2001 formulated a sole question for determination as follows:-
“Whether the report of the 2nd defendant’s Fact Finding Ad-hoc Committee dated 23rd of January, 2001 recommending to the 2nd defendant that the plaintiff be made to face the Staff Disciplinary and Appeals Committee does not violate the rules of natural justice, whether the letter of the defendants, specifically the 2nd defendant, to the plaintiff dated 8th March, 2001 simultaneously directing him to appear before the Senior Staff Disciplinary and Appeals Committee (SDAC) to defend himself against the charges contained therein, and suspending him as a staff of the University of Ilorin is not ultra-vires (sic) the defendants, unconstitutional, illegal, null and void having regards to the provisions of sections 36(1) and 39(1) of the Constitution of the Federal Republic of Nigeria, 1999, and the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990, in particular sections 15 and 18 of same”.
Based on this question, the appellant, who was also the plaintiff in the lower court, claimed the following reliefs:-
“(1) A declaration that the suspension of the plaintiff from the 1st defendant and his invitation to appear before the Senior Staff Disciplinary and Appeals Committee to answer to some charges, by the 2nd defendant communicated to the plaintiff vide a letter dated 8th of March, 2001 and signed by the 7th defendant are illegal, unconstitutional, null and void as same violate the lights of the plaintiff to fair healing and freedom of expression respectively guaranteed by sections 36(1) and 39(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(2) A declaration that the 2nd defendant cannot in law exercise the powers of suspension of a staff of the 1st defendant conferred on it by section 15(3) paragraphs C & D without according such staff fair hearing, a right entrenched in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(3) A declaration that the said letter of suspension of the plaintiff from the 1st defendant and his invitation to appear before the Senior Staff Disciplinary and Appeals Committee of the 1st defendant to defend himself against certain charges is not in consonance with the provisions of section 15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990”.
The originating summons was supported by a 43-paragraphs affidavit. The dispute between the plaintiff and the defendants arose from a memo written by the plaintiff to the congregation of the University titled “Abuse of Human Rights and Due Process” in which he made some allegations against the defendants. Upon the receipt of the memo the 2nd defendants, the Governing Council, University of Ilorin, set up a four-man “Fact Finding Ad-hoc Committee”, herein called Committee to look into the petition and make its recommendations to the Council. The “Fact Finding Ad-hoc Committee” met during which it invited all the persons concerned, including the plaintiff who testified before the Committee. Thereafter, the Committee wrote its report and submitted same to the 2nd defendant. The report of the Committee was attached as exhibit PA3. Concerning the plaintiff, the Committee recommended to the 2nd defendant as follows:-
“In view of the findings submitted in “a – d above”, the Committee will like to make the following recommendations on Professor J. A. Akinyanju to the Council:
(1) Professor Akinyanju’s matter should be referred by University Governing Council to the Staff Disciplinary and Appeals Committee (SSD&AC) for necessary disciplinary action that may be appropriate.
(2) This Committee believes in the culture of academic freedom in the University i.e. freedom of expression, freedom of research and dissemination of knowledge etc. But we believe that this golden freedom should be used with due decorum along with other traditional cultures of the University. This would also imply the freedom and rights of fellow men within the University and the Nation at large”.
The 2nd defendant deliberated on the report and directed the plaintiff to appear before the Senior Staff Disciplinary and Appeals Committee (SSD&AC). By a letter dated 8/3/ 2000 i.e. exhibit PA4, the 7th defendant, the Registrar and Secretary to the Governing Council University of I1orin, handed over and or communicated the decision of the 2nd defendant to the plaintiff. For the purpose of clarity, it will be necessary and expedient to reproduce the said letter.
“Professor J. A. Akinyanju
Department of Biological Sciences
University of Ilorin.
Dear Professor Akinyanju,
Allegation of Acts of Misconduct
You will recall that Council constituted a four-man Fact Finding Committee to look into the allegations made against the administration and council as contained in your memorandum to congregation dated 1st December, 2000.
You will also recall that you appeared and made representation before the said Committee at its sitting on Wednesday, 17th January, 2001.
Whereas, the said Committee had submitted its report to Council for deliberation, and whereas Council has deliberated on the said report exhaustively and had found that prima facie, case of misconduct had been established against you. Consequently, Council has directed that you appear before the Senior Staff Disciplinary and Appeal Committee (SSD&AC) to defend yourself against the following charges. Specifically, it had been alleged:-
i. That you Professor I. A. Akinyanju breached the normal channel of protest communication and thereby caused disaffection within the University.
ii. That you, Professor J. A. Akinyanju’s failure to follow the proper channel of communication and the communication style and language contained therein is to instigate the congregation against the University administration and the Vice-Chancellor in particular.
iii. That you, Professor J.A. Akinyanju, by your memorandom, the communication style of the memorandum and the language contained in the said memorandum, you have portrayed the Vice-Chancellor as an untrustworthy, slanderous, lawless and oppressive authority which has no regard for human rights and welfare of his subordinates.
iv. That you, Professor J. A. Akinyanju, made yourself an advocate of Professor S. O. Odunleye, on the issue of Professor S. O. Odunleye’s salary stoppage without first finding out the truth of the matter, thereby, portraying the University administration and the Vice-Chancellor as abusers of human rights.
v. That you, Professor J. A. Akinyanju’s main purpose and motive of writing the memorandum to congregation without observing the laid down communication channel was to provide and incite the congregation and the larger University community against the University administration and the Vice-Chancellor in particular in the matter of Professor S. O. Oduleye’s housing loan”.
That your hard feelings and offensive expressions coming from a staff member of the status of a professor are considered as indecorous and that these are construed as acts of misconduct, susceptible to disciplinary sanction under section 15 of the University of Ilorin Act, Cap. 455.
In view of the foregoing, you are hereby suspended from duties in accordance with section 15 of the University of Ilorin Act, Cap. 455.
Consequently, you are hereby directed to handover the headship of the Department of Biological Sciences to the Dean of Science.
M. T. Balogun
Registrar & Secretary to Council.”
The plaintiff failed to obey the directive contained in this letter, and as a result instituted this action and claimed the reliefs earlier set out in this judgment. The defendants in their counter-affidavit deposed in paragraphs 19,20 & 21 as follows:
“(19) That on the basis of the allegation made against the plaintiff/applicant, the 5th defendant invoked the powers conferred on him by the law establishing 1st defendant/respondent, for good cause, to suspend the plaintiff/applicant from office, pending the determination of the allegation of misconduct leveled against him.
(20) That I know as a fact and by virtue of my official positions that the plaintiff/applicant can be disciplined for acts of misconduct under the laws of the 1st defendant/respondent.
(21) That I know as a fact that both Alhaji M. Z. Kolo and myself had denied that we were not going; to take part in the disciplinary proceedings against the plaintiff/applicant in order to afford him a fair and unbiased hearing”.
After hearing the counsel to the parties, the learned trial Judge of the Federal High Court, Ilorin Justice P. F. Olayiwola, dismissed the plaintiff’s claims, the trial court held as follows on pages 347 – 348:
“In the matter on hand, I have no doubt holding that the action of the Vice-Chancellor complied with S. 15 of the Unilorin Act and that the said action is not in contravention of Ss. 36 and 39 of the constitution. I also hold that the plaintiff’s action in rushing to court under this head is hasty and premature”.
On the issue of bias, the learned trial Judge held as follows:
“It cannot be established now that the plaintiff is denied of access to these papers, it is only when the SDAC meets and he is denied access to them that he can raise this issue. More importantly, the Registrar and Mallam Kolo have indicated in the counter-affidavit of 17/5/2001, that they would not take part in the work of Staff Disciplinary and Appeals Committee”.
Finally, the learned trial court held thus:
“On the whole, in the light of the findings highlighted above, I cannot find any justification to sustain the case of the plaintiff. This action is therefore accordingly dismissed without any order as to costs”.
It is against this judgment that the appellant appealed to this court and filed a notice of appeal containing nine grounds of appeal. They are herein reproduced without their respective particulars:
The learned trial Judge misdirected himself when he held that the action brought by the appellant revolves mainly on the poser whether the action of the Vice-Chancellor in suspending the appellant for three months is ultra vires the Constitution of the Federal Republic of Nigeria, 1999.
The learned trial Judge misdirected himself when he raised, as one of the issues for determination in his judgment, the question of whether the provision of section 15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990 is in contravention of the provision of section 36(i) and section 39 of the Constitution of the Federal Republic of Nigeria, 1999.
Error in Law.
The learned trial Judge erred in law when he held that there is no contravention or distinction between the power of suspension of an academic staff of University of Ilorin for misconduct by the Vice-Chancellor for good cause by the Governing Council of the said University.
Error in Law.
The learned trial Judge erred in law when he held that the (alleged) suspension of the appellant by the 5th respondent (Vice-Chancellor) of University of Ilorin did not infringe on the right of the appellant to fair hearing and freedom of expression guaranteed by sections 36(1) and 39 of the Constitution of Federal Republic of Nigeria, 1999.
Error in Law.
The learned trial Judge erred in law in holding that the alleged suspension of the appellant (action of the Vice-Chancellor) is in compliance with the provision of section 15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990.
Error in Law.
The learned trial Judge erred in law in holding that the appellant’s action in rushing to court (in instituting the action) is hasty and premature.
Error in Law.
The learned trial Judge erred in law in holding that the respondents were not biased against the appellant.
Error in Law.
The learned trial Judge erred in law in declining and/or refusing to adjudge the submission of the appellant made before him on the legality of the Ad-hoc Investigating Committee set up by the Governing Council to investigate the allegation of misconduct leveled against the appellant and the Staff Disciplinary and Appeals Committee before which the appellant was directed to appear to answer to charges of misconduct.
9. Additional ground of law
Section 15(2) of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990, which empowers the Vice-Chancellor to peremptorily or summarily suspend a member of the University if he is of the opinion that a case of misconduct exists against such member, and thereafter report the case and suspension to the Governing Council infringes the provisions of the section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999”
In accordance with the rules of this court, both parties filed and exchanged their respective briefs of argument. Appellant in his brief of argument dated 23rd day of February, 2004 and deemed filed on 18/3/2004, formulated four issues for determination as follows:
“2.1. Whether the question for determination in the appellant’s case was not wrongly formulated by the learned trial Judge, and if so, whether the formulation did not lead to wrong findings and conclusions by the learned trial Judge, and occasion a miscarriage of justice?
2.2. Whether the learned trial Judge was right in holding that the provisions of the section 15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990, were not breached by the disciplinary actions and steps being taken by the respondents against the appellant?
2.3. Whether the suspension of the appellant from the 1st respondent, and disciplinary steps being taken against him were not in breach of the appellant’s right to fair hearing and freedom of expression respectively guaranteed by sections 36(1) and 39 of the Constitution of the Federal Republic of Nigeria, 1999?
2.4. Whether section 15(2) of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990, purportedly invoked by the respondent to suspend the appellant from the 1st respondent is not unconstitutional, null and void, having regard to the provisions of section 36(1) and section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999?”
The respondents in their brief dated 13/5/2004 and filed on the 14th day of May, 2004 also formulated four issues for our consideration as follows:-
“1. Whether the formulation of the main issue by the trial court which encompass all the other subsidiary issues was not proper and whether such formulation has occasioned a miscarriage of justice in this case?
2. Whether the trial court was not right in holding that the provisions of section 15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990 were not breached by the disciplinary action being taken by the respondents against the appellant?
3. Whether the trial court was not right in holding that the suspension and disciplinary steps being taken against the appellant were not in breach of sections 36(1) and 39(1) of the Constitution of Nigeria, 1999?
4. Whether section 15(2) of the University of Ilorin Act, Cap. 455 contravenes the provisions of sections 36(1) and 1(3) of the constitution and therefore null and void?”
At the hearing of this appeal on 14/9/2004, the learned counsel to the appellant Jiti Ogunye, Esq., adopted his brief of argument and the reply brief dated 17/6/2004 and urged this court to allow the appeal.
It was the submission of the learned counsel for the appellant in his brief, that the issue formulated by the trial court upon which he based his findings only relates to the suspension of the appellant from the 1st respondent and did not involve the consideration of the case put forward by the appellant which has therefore occasioned a miscarriage of justice. The counsel relied on the case of Ahmad v. Sokoto State House of Assembly & Anor. (2002) 15 NWLR (Pt. 791) 539; Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6. Learned counsel further contended that in a contract of services as the one under consideration whose employment is regulated by statute must be taken in strict adherence to the provisions of the statute. He cited the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290. Hence, any act or disciplinary measure or steps taken against the appellant by the respondent must strictly comply with the provisions of section 16 of the University of Ilorin Act, Cap. 455.
However, in the instant case, the disciplinary action and procedures (suspension as an academic staff and Head of Department of Biological Sciences and invitation to appear before SDAC and defend himself against charges of misconduct) against the appellant by the respondents were not in compliance with the provisions of section 15 of the University of Ilorin Act, Cap. 455 and must therefore be set aside. He further submitted that the Vice-Chancellor cannot suspend the appellant under section 15 of the Act, when in fact the council is already seized of the matter.
Furthermore, the learned counsel submitted that the suspension of the appellant by the Vice-Chancellor pending the determination of allegation of misconduct leveled against him is a punishment which will involve the Vice-Chancellor taking a decision before arriving at a conclusion to invoke punishment by way of suspension. And since the section of the law does not make provision for the accused to be heard before suspension, it has inevitably breached the provisions of section 36(1) of the Constitution, as it relates to fair hearing. Finally the learned counsel submitted that section 15(2) of the University of Ilorin Act, Cap. 455 infringes in so far as it empowers the Vice-Chancellor to peremptorily or summarily suspend a member of staff of the University if he is of the opinion that a case of misconduct exists against such member and thereafter report to the Governing Council.
Learned counsel to the respondents, K. K. Eleja, Esq., also adopted his brief of argument on behalf of all the respondents and urged us to dismiss the appeal. It was the submission in his brief of argument that the issue formulated by the learned trial Judge adequately covered the matters in controversy between the parties and the appellant has suffered no miscarriage of justice. It was the submission of the learned counsel that a court is at liberty to follow its own style in arriving at its judgment once it is clear that it appreciates the issues submitted for adjudication, the fact on which the issues are predicated and arrived at a conclusion based on the evidence before it. The case of Jekpe v. Alokwe (2001) 8 NWLR (Pt. 715) 252 at 264 – 265 and 268 was cited.
Learned counsel submitted that the respondents were justified in the procedure leading to the suspension of the appellant as it was carried out under the power conferred on him by section 15 of the Act, Cap. 455.
Finally, the learned counsel for the respondents submitted that none of the reliefs claimed by the appellant prayed for a determination to nullify section 15(2) of the University of Ilorin Act as is now contained in paragraph 7.6 of the appellant’s brief. He also submitted that the sole question formulated on the originating summons did not involve a consideration of an issue of inconsistency between the provisions of section 15(2) of the University of Ilorin Act and section 36(1) and (3) of the 1999 Constitution. Hence he submitted that this court cannot grant a relief not claimed by the appellant.
Alternatively, learned counsel finally submitted that section 15(2) of the University of Ilorin Act, Cap. 455 does not in any way contravene the provisions of sections 36(1) and 1(3) of the 1999 Constitution.
I have carefully and painstakingly gone through the respective briefs of argument filed by the parties, the reply brief filed by the appellant and the record of proceedings filed and I wish to quickly and swiftly resolve the issue bothering on the way and manner the learned trial Judge wrote his judgment. The appellant was not happy with the manner the trial Judge framed the issue, suo motu, for determination in the judgment and submitted that the issue did not cover all the issues that were raised before the trial court, and as a result of which he suffered miscarriage of justice. The learned trial Judge, herein referred to, as lower court, in his judgment framed the controversial issue for determination as follows:-
“I have listened to both counsel. I have also perused the avalanche of affidavit and exhibits placed before me. In my humble view, this action revolves mainly on the power whether the action of the Vice-Chancellor in suspending the plaintiff for three months is ultra-vires the Constitution of the Federal Republic of Nigeria.”
It is this issue as framed by the lower court that the appellant submission that does not cover all the other issues raised in the action such as the invitation to SDAC, the power of the Vice-Chancellor to suspend the appellant when the Governing Council is already seized of the matter. My Lords, it is my humble opinion that the learned counsel only restricted his submissions to one aspect of the judgment of the lower court. A perusal of the decision of that court will disclose that the trial Judge (or lower court) raised some other subsidiary issues which he promptly resolved i.e. the alleged contravention of the Constitution by section 15 of the University of Ilorin Act, Cap. 455, the power of the Vice-Chancellor and the Governing Council to suspend the appellant, the issue of fair hearing, and the issue of bias and composition of the SDAC. All these issues were well looked into and resolved by the lower court before he arrived at his conclusion. The style adopted by the lower court may not be impressive to the appellant, the most important thing is that the judgment of court must appreciate the issues submitted for adjudication, the facts on which the issues are predicated and arrived at a conclusion based on the evidence before it.
A court of law cannot be tied to a specific way or means of writing judgment. See Lawrence Nwankpu v. Ewulu (1995) 7 NWLR (Pt. 407) 269, (1995) 7 SCNJ 197; and Nkado v. Obiano (1977) 5 NWLR (Pt. 503) 31, (1977) 5 SCNJ 33. In Nwankpu v. Ewulu (supra), Ogundare, J.S.C. of blessed memory at p. 209 has this to say:
“It is not in dispute that there is no particular scheme for the writing of judgments. All that a trial Judge is expected to do is to constantly bear in mind the case as presented by each party, the onus of proof and to weigh the case for each party on that imaginary scale suggested in Mogaji v. Odofin (supra) …”
A court’s judgment cannot be set aside for failing to follow a particular pattern or style. I think reasonableness, objectivity and correctness of conclusion are the issues to be considered – Jekpe v. Alokwe (2001) 8 NWLR (pt. 715) 252. When confronted with similar issues Ogwuegbu, J.S.C. has this to say on p. 264.
“It must be emphasized that there is no set style which must be followed by trial courts when writing judgments. Judges must no doubt differ in the procedure and style which they adopt in their consideration of the entire evidence. It is not very material whether the Judge starts with the consideration of the defendant’s case before that of the plaintiff and vice versa. What is important is that he should first of all put the whole evidence led by the parties on that imaginary scale…”
In addition, the appellant did not show in what manner the approach adopted by the trial court had occasioned a miscarriage of justice in this particular case. I have no doubt in my mind that the appellant has not suffered any miscarriage of justice whatsoever by reason of the scheme of judgment adopted by the lower court in writing its judgment, and as such I resolve this issue in favour of the respondents.
Another issue which I think should be promptly disposed of and resolved is the legality or otherwise of SDAC. The respondents submitted that this issue does not form part of the case before the lower court. It was the contention of the respondents that the appellant never challenged the legality of the SDAC before the lower court. His complaint was against his suspension and simultaneous reference to the SDAC. The appellant in reply submitted that he challenged the legality of the SDAC not by way of specific relief, seeking a declaration that the SDAC is illegal null and void, but by reliefs 1, 3, 4, 8 and 10 sought by the appellant where under or wherein the appellant stated that his invitation to appear before the SDAC is illegal and unlawful.
With tremendous respect to the learned counsel for the appellant, it appears to me that the appellants had clearly admitted by reasons of his submission that the legality of SDAC was not made an issue before the lower court, what was in issue is the invitation of the appellant to appear before the SDAC. Prayers 3 and 5 are clear in this respect. Hence, having not been made an issue before the lower court, the lower court and by extension, this court does not have jurisdiction to make a pronouncement on the legality of SDAC. The appellant is precluded from setting up a fresh case on appeal, he is only entitled to contest the judgment of a trial court only on the issue properly raised before it and pronounced upon by it. The only exception however, is if the appellant successfully applied for leave to raise fresh issue on appeal. In the case of Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159, (2000) 2 SCNJ 159, Iguh, J.S.C. in his statement stated in effect that an appellant will not generally be allowed to raise on appeal a question which was not raised, tried or considered by the court below. See also Global Transport Oceanico S.A. v. Free Enterprises Nigerian Ltd. (2001) 5 NWLR (Pt. 706) 426, (2001) 2 SCNJ 224. Kalgo, J.S.C. has this to say on p. 239:
” … Also fresh point will not ordinarily be entertained by the Supreme Court if it has not the benefit of the views of the Justices of the lower court …”So also fresh point will not be entertained by the Court of Appeal if it has not the benefit of the trial court. To entertain such fresh point leave must be sought and obtained.
Consequently, all issues relating to the legality of the SDAC are incompetent before this court and they are accordingly struck out. Coming to the constitutionality or otherwise of section 15(2) of the University of Ilorin Act, Cap. 455 the submissions follow this pattern. The appellant has submitted that the said section contravened the provisions of sections 36(1) and 1(3) of the 1999 Constitution of the Federal Republic of Nigeria. On the other hand, the respondents contend that none of the declarations or reliefs seeks to nullify section 15(2) of the University of Ilorin Act, Cap. 455 herein called “Act”.
In addition, the sole question formulated on the originating summons does not involve the question of the inconsistency of the said section 15(2) of the Act with the said provisions of the Constitution of the Federal Republic of Nigeria, 1999. Hence, the resolution of this issue (will not entitle him to any of the reliefs sought since none of the reliefs sought to void or nullify section 15(2) on the alleged inconsistency with the provisions of the constitution. He therefore submitted that this issue is hypothetical and academic in nature which this court would not engage itself in. However, the appellant in his reply brief submitted that this point being a fresh point need not be attached to any relief previously sought at the trial court.
It is clear from the reliefs contained in the originating summons that the plaintiff did not seek for the nullification of section 15(2) of the Act on its alleged contravention of the provisions of sections 36(1), and 1(3) of the Constitution. Hence what agitates my mind at this point is, if this court embarks on the resolution of this issue and peradventure finds that the said section 15(2) contravenes sections 36(1) and 1(3) of the Constitution, what order or orders can it make in view of the fact that the appellant did not claim for the nullification of the said section 15(2) for the alleged contravention? It is trite that this court has no power to grant relief that is not claimed by the appellant. See: Ekpenyong v. Nyong (1975) 2 SC 71, (1975) NSCC 24; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532, (2000) 5 SCNJ 1; and Afrotech Technical Services (Nig.) Ltd. v. M.I.A. & Sons Ltd. (2000) 15 NWLR (Pt. 730), (2000) 12 SCNJ 298; clearly reliefs not claimed is not proper for the court to even consider it, a foretiori to make any order on it. In the Afrotech v. M.I.A. & Sons (supra). It was held that to make any order which has not been claimed is to make a gratuitous order which the court is not competent to make. My fear is that if I make such an order under the circumstances of this case my order will be incompetent and liable to be declared so by the Supreme Court as happened in Afrotech v. M.I.A. (supra) per Kutigi, J.S.C. at p. 325 where he says:
“…There is no dispute about the fact that this is certainly not one of the reliefs sought by the plaintiff against the defendant in the trial court … the order made by the Court of Appeal is therefore clearly gratuitous. It is not the function of a court of law to make a gratuitous award. Such an award will be incompetent. (See for example Ekpenyong v. Nyong (1975) 2 S.C. 71, Obioma v. Olomu (1978) 3 S.C. 1)”.
It is also established that the resolution of any issue that will not result into the determination of the claim before the court amounts to deciding on hypothetical or academic issue, which again this court has no business or jurisdiction to do. See Jimoh Akinfolarin v. Solomon Akinola (1994) 3 NWLR (Pt. 335) 659, (1994) 4 SCNJ 30.
From the above, it is clear that the appellant having not claimed for a declaration to nullify the said section 15(2) of the Act, this court would not embark on the consideration of such issue as no order in form of relief can possibly be made from such consideration. The issue is purely hypothetical and academic and cannot be entertained by this court. Same is hereby accordingly struck out. The main issue that is left to be considered and resolved is whether the action and steps taken so far by the respondents are in order and in accordance with the provisions of section 15 of the University of Ilorin Act, Cap. 455, which is the statute that guards and governs the relationship between the parties. For the sake of clarity the said section 15 reads thus:-
“15(1) 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:-
(b) give notice of those reasons to the person in question;
(b) Afford him an opportunity of making representations in person on the matter to the council; and
(c) If he 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 considering the report of the investigating Committee, is satisfied that the person in question should be removed as aforesaid the council may so remove him by an instrument in writing signed on the directions of the Council.
(2) The Vice-Chancellor may in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the council.
(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by Council, and for the purpose of this sub-section “good cause” means:-
(a) conviction for any offence which the council considers to be such as to render the person concerned unfit for the discharge of the functions of his office, or
(b) any physical or mental incapacity which the council, after, obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office, or
(c) conduct of a scandalous or other disgraceful nature which the council considers to be such as to render the person concerned unfit to continue to hold his office, or
(d) conduct which the council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.
(4) Any person suspended pursuant to subsections (2) or (3) of this section shall be on half pay and the council shall, before the expiration of a period of three months after the date of such suspension, consider the case against that person and come to a decision as to:
(a) Whether to continue such person’s suspension and if so on what terms (including the proportion of his emoluments to be paid to him)?
(b) Whether to reinstate such person in which case the council shall restore his full emoluments to him with effect from the date of suspension?
(c) Whether to terminate the appointment of the person concerned in which case such a person will not be entitled to the proportion of his emoluments withheld during the period of suspension? or
(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the council may determine? and in any case where the council, pursuant to this section decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination respect of the case concerning any such person”.
As can be glaringly seen, in the instant case, the appellant was not suspended until a “Four-man Fact-Finding Committee” was set up. The appellant in fact physically appeared, blood and flesh, before the Committee which later sent its report to the Council. After consideration of the report, the appellant was directed to appear before SSD&AC to defend himself on some allegations made against him.
Consequently, he was suspended pending when the SSD&AC would submit its report, and the Council could then take a final decision on the matter. On this issue the lower court found as follows:- See p. 346 of the record –
“A suspension by the Vice-Chancellor or the Governing Council is only for three months during which the officer is still entitled to have half pay. Furthermore, subsection 4 as highlighted supra provides that before the expiration of the three months, the Governing Council (sic), must decide on the merits of the case of the officer on trial.
Learned Judge of the lower court concluded on p. 347 thus:
“…In my opinion, there are enough safeguards in S. 15 to protect the fundamental rights of the affected person viz:
(i) He would be on half pay.
(ii) Issue must be resolved before the expiration of three months.
(iii) It is the Governing Council that ultimately decides the matter”.
In the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 309, the Supreme Court held as follows:-
“The High Court is merely to act in its supervisory jurisdiction or judicial control to ensure that the procedure laid down by law was observed by domestic tribunal. It is not to act as if it was sitting on appeal against the decision of that tribunal. In the instant case, there is no doubt that from the steps taken by the council of the 1st respondent which acted as a domestic tribunal there was compliance with S. 15 of the University of Ilorin Act”.
In the matter on hand, I have no doubt holding that the action of the Vice-Chancellor complied with S. 15 of the Unilorin Act and that the said action is not in contravention of ss. 36 and 39 of the Constitution. I also hold that the plaintiff’s action in rushing to court under this head is hasty and premature.
My Lords, with all sense of responsibility I completely agree with the findings of the lower court as stated above. All the actions and steps taken so far were as laid down in S. 15 of the Act and the appellant has not been able to prove any act of non-compliance with the Act. The said Act, in my respective view, has double-edge sword as it were, for both the employers and employees and I think it is fair legislation. Every employer has the power to investigate any allegation of impropriety or misconduct leveled against his employee this may lead to suspension pending investigation. In the case of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) 142 at 144, Uwaifo, J.S.C. in his contribution agreed with the lead judgment delivered by Belgore, J.S.C. and stated thus:
“The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights”.
My Lord has said it all, I bowed to the reasoning of the above erudite jurist. The Governing Councilor the Vice-Chancellor in my view have not taken any step to suggest that the appellant would not have fair hearing; the SSD&AC comprised of all the representatives of the University community, and when it finally submits its report, the decision is definitely going to be made by the Council, as a body, and not by a particular individual. It is quite unfortunate that the appellant refused to avail himself from the right to be heard by SSD & AC before he rushed to court. Hence, his allegation of bias is completely at large and misplaced. The lower court found on the issue of bias as follows:-
“I do not find facts therefore to justify the insinuation of bias against the afore-mentioned. In the case of Adeniyi v. Yaba Tech (1993) 6 NWLR (Pt. 300) 426 at 433, the Supreme Court held as follows:-
“No judicial or administrative bodies have a duty to act in good faith and fairly to listen to both sides for that is the duty lying upon everyone who decides anything. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to the view.”
It cannot be established that their plaintiff is denied of access to these papers, it is only when the SSD&AC meets and he is denied access to them that he can raise this issue.
More importantly, the Registrar and Mallam Kolo have indicated in the counter-affidavit of 17/5/2001 that they would not take part in the work of Staff Disciplinary and Appeals Committee. With due respect, I endorse this view of the learned trial Judge.
When a student or lecturer or a professor is suspended that does not mean the end of every thing. Suspension only means to defer, lay aside, or hold in abeyance. It also means to half midway but certainly not to bring to an end or terminate. The University has authority to discipline any member of the administrative or academic body. Suspension of the appellant pending investigation can never amount to a breach of his fair hearing. The act of suspension in this case is an administrative act intended to ensure good and stable administration of the University. I think in the instant case, the Vice-Chancellor of the University of Ilorin acted within his powers when he suspended the appellant.
In a recent case, the Supreme Court in line with their decision in Ayewa v. University of Jos (supra) held that a student in law can be lawfully suspended pending investigation. Though the case in hand concerns a University Professor, the recent decision is of tremendous assistance in arriving at this court’s decision one way or the other. See the case of Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) 366 at pp. 387,390.
Having resolved all the live issues against the appellant, this appeal lacks merit, it has failed, same it is hereby dismissed. Consequently, the judgment of the lower court delivered on 22/5/2003 being sound and unassailable is hereby restored and affirmed.
I make no order as to costs.
IKONGBEH, J.C.A.: I have read in the draft the judgment just delivered by my learned brother, Muntaka-Coomassie, J.C.A. I am in complete agreement with him that this appeal is devoid of all merit and ought to be dismissed. I too would dismiss it.
The appellant is complaining of the breach of his right to fair hearing, whereas, it is to afford him a fair hearing that the Ad-hoc Fact Finding Committee recommended that he be invited to face the Senior Staff Disciplinary and Appeals Committee to defend himself against the charges to be leveled against him thereat. The Ad-hoc Committee has not recommended any punishment against him. It is if that Committee had recommended any punishment against him that he can validly complain of want of fair hearing. With all due respect, it is a misconception to insist that before the Ad-hoc Committee can recommend that the appellant be called upon to face the Disciplinary Committee, the former Committee must have given him as thorough a hearing the latter would. All that the former Committee was required to do was, as its name implied, to investigate to see whether or not there was a prima facie case to necessitate the swinging into action of the Disciplinary Committee. It is before this Committee that the appellant would be expected to put forward his full defence and to be afforded every opportunity of presenting such defence.
Judging from the question that the appellant, as plaintiff, posed before the trial court, the practical effect of what he was seeking to do by his suit was to ask the court to stop the Disciplinary Committee from sitting. The appellant was in effect asking us the trial court, and now us, to interfere with the Disciplinary Committee in the performance of its legal and legitimate duties. I do not think that any court can, or should, do that.
I abide by all the consequential orders made by my learned brother in the lead judgment.
ADENIJI, J.C.A.: I have read in draft, the leading judgment of my learned brother Muntaka-Coomassie, J.C.A., and I wholly agree with his reasoning and conclusions.
The facts were adequately set out and I agree with him that the appeal lacks merit. I too dismiss the appeal and affirm the decision of the lower court. No order as to costs.
Jiti Ogunye, Esq.;
Lekan Alabi, Esq.)For Appellant
B K. K. Eleja, Esq.;
J. Ahmed, Esq.For Respondent