SYLVANUS EZE v. UNIVERSITY OF JOS
(2012)LCN/5762(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2012
CA/J/40/2008
RATIO
INTERPRETATION: INTERPRETATION OF SECTION 15 OF THE UNIVERSITY OF JOS ACT IN RELATION TO WHETHER THE SUSPENSION OF A STAFF CAN EXCEED THREE MONTHS PROVIDED
The Supreme Court in Bamigboye v. University of Ilorin & Anor (1999) 10 NWLR (Pt. 622) at 290 cut short my work for me. In that case the Supreme Court exhaustively construed provisions of Section 15 of the University of Ilorin Act which provision is in pari materia with Section 15 of the University of Jos Act. The questions raised in this appeal were answered in full by Uwaifo, JSC at page 348 where he had this to say:
“Arguments have been canvassed on behalf of the appellant that because his suspension lasted beyond 3 months it was in contravention of S. 15(4) of the Act and therefore it rendered the disciplinary proceedings a nullity. I think this a complete misconception of that provision of the Act. I believe one can say that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. I do not see how by exceeding 3 months the disciplinary proceeding is rendered a nullity. In fact the council is empowered to exceed the initial 3 months period by not more than a further 3 months. From what happened in the present case, the suspension lasted some 5 months. Unless there is clear evidence to the contrary, I must assume that the council took liberty under S. 15(4) read as a whole to exceed the initial 3 months. In any event, I am of the view that if the period allowed, whether the initial 3 months or the further 3 months, is exceeded, that will not render the disciplinary proceedings a nullity.” PER RAPHAEL CHIKWE AGBO, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
Between
SYLVANUS EZEAppellant(s)
AND
UNIVERSITY OF JOSRespondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The Appellant was a Senior Administrative staff of the Respondent. The Respondent received from its security division a complaint that the Appellant was collecting money without authority from newly admitted diploma students of the Centre for Continuing Education. The Respondent issued him a query on 12th July 2006 to which he responded on 13th July 2006. The Respondent not satisfied with his response and acting through its Registrar referred the case to the Council/Senate disciplinary Committee and suspended the Appellant from duty effective 21st July 2006. The Appellant was thereafter summoned to a meeting of the council/Senate committee meeting where he defended himself at the meeting which held between August 8 and 11 2006. By a letter dated November 3, 2006 the Appellant was informed of the council decision of its regular meeting of 2nd to 4th November 2006 to dismiss him from service effective November 3, 2006.
Being dissatisfied with the decision of the council the Respondent approached the Federal High Court by way of originating summons with a lone question for determination to wit:
1. “Whether the plaintiff, having been placed on suspension on the 21st day of July, 2006, the Council of the University had subsisting/extant power to discipline him as they did vide the decision taken at the 5th regular meeting of November, 2 – 4, 2006 having regards to the provisions of section 15, particularly (2) (3) of University of Jos Act, Cap 456, Laws of the Federation of Nigeria, 1990”
In the event of the Court answering that question in the negative he sought the following prayers:
“1. A declaration that the decision reached by the Council of the University at its 5th regular meeting held on November 2 – 4, 2006 to dismiss the Plaintiff, which said decision was communicated vide the letter dated the 3rd day of November, 2006 was unlawful, void and of no effect whatsoever as the statutory power to discipline the plaintiff was not subsisting/extant at the time the decision was made.
2. Order of this Honourable Court setting aside the said decision and indeed the letter of the 3rd day of November, 2006 which communicated the said decision to the Plaintiff.
3. Order restoring the Plaintiff to his job as provided for by the terms of his Appointment with the Defendant.
4. Mandatory injunction compelling the Defendant to compute and pay to the all his salaries, entitlement and benefits withheld consequent upon the purported dismissal.
5. Injunction restraining the Defendant from preventing or disturbing the Plaintiff from carrying out his duties and responsibilities with the University or tampering with the Rights and privileged incidental to his appointment and to pay the costs of this action”
The trial Court answered his question in the positive and dismissed his case hence this appeal. It is to be noted that in line with his question at the trial court, the Appellant limited himself to the issue of the competence of Respondent to proceed to punish him after the three months of suspension set out in section 15 (4) of the university of Jos Act Cap 456 Laws of the Federation of Nigeria 1990 had lapsed. He did not challenge the infamous conduct for which he was suspended and thereafter dismissed.
The Appellant founded this appeal on three grounds of appeal to wit:
(i) The trial court erred in law when it held that “in the instant case the University Council did not act out of time.”
(ii) The trial court erred in law when it held that “…No decision on the matter was taken by the University Council as to continuation of suspension or as to further disciplinary action “such decision” having not been taken, the three months limitation does not begin to run as toward “a final determination.” And therefore it goes to no issue that the Council’s decision to dismiss the Plaintiff taken during their meeting of 2nd – 4th November 2006 (the only action and decision, also final determination), was over three months after the vice-chancellor acted to suspend the Plaintiff. That was the Vice-Chancellor’s decision, not the University Council’s. Only one decision of Council was involved here; and that one decision happened also to be a final determination…” and in so holding came to the wrong conclusion in Law.
(iii) Having reached a finding that “…There is no evidence that the Council took any action i.e. decide to continue the Plaintiff’s suspension or decide to take further disciplinary action against him before its final determination in its meeting of 2nd -4th November, 2006…” the trial Court came to the wrong conclusion in law that “…I would tend to view that the stipulation of time in this instance as merely directory and not obligatory or absolute.”
From these grounds of appeal the Appellant in his brief of argument distilled two issues for determination to wit:
(1) Whether the Disciplinary power of the Governing Council were extant and validly exercised within the time circumscribed by in the enabling act of Respondent.
(2) Whether, being a creation of statute, the Defendant/Respondent can act outside the powers contained in statute.
The Respondent on the other hand in its brief of argument distilled a lone issue for determination to wit:
“Whether upon a proper interpretation of Section 15 of the University of Jos Act CAP 456 Laws of the Federation of Nigeria 1990 and other relevant sections thereof the decision of the learned trial judge dismissing this suit was correct.”
In order to appreciate the issues placed before this Court for determination it is necessary to set out in full the provisions of Section 15 of the University of Jos Act hereunder:
“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 –
(a) give notice of these 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 interests 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 purposes of this subsection “good cause” means –
(a) conviction for any offence which the council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; 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 subsection (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); or
(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: or
(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 in respect of the case concerning any such person.
(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.
(6) Nothing in the foregoing provision of this section shall prevent the Council from making regulations for the discipline of other categories of staff and workers of the University as may be prescribed.”
The Appellant had argued strenuously that the University Council having exceeded the three months limit in Section 15(4) of the University of Jos Act and without formally extending the suspension period pursuant to Section 15(4)(a) of the said Act, the power of the council to discipline the Appellant became extinguished after three months of suspension. This in essence constitutes the totality of the Appellant’s argument. The Supreme Court in Bamigboye v. University of Ilorin & Anor (1999) 10 NWLR (Pt. 622) at 290 cut short my work for me. In that case the Supreme Court exhaustively construed provisions of Section 15 of the University of Ilorin Act which provision is in pari materia with Section 15 of the University of Jos Act. The questions raised in this appeal were answered in full by Uwaifo, JSC at page 348 where he had this to say:
“Arguments have been canvassed on behalf of the appellant that because his suspension lasted beyond 3 months it was in contravention of S. 15(4) of the Act and therefore it rendered the disciplinary proceedings a nullity. I think this a complete misconception of that provision of the Act. I believe one can say that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. I do not see how by exceeding 3 months the disciplinary proceeding is rendered a nullity. In fact the council is empowered to exceed the initial 3 months period by not more than a further 3 months. From what happened in the present case, the suspension lasted some 5 months. Unless there is clear evidence to the contrary, I must assume that the council took liberty under S. 15(4) read as a whole to exceed the initial 3 months. In any event, I am of the view that if the period allowed, whether the initial 3 months or the further 3 months, is exceeded, that will not render the disciplinary proceedings a nullity.”
I have nothing further to add. In the instant case the Respondent came to a decision within 4 months of the Appellant’s suspension. The Appellant’s issues are hereby resolved against him. This appeal must fail and it is hereby dismissed. N30, 000.00 costs to the Respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of a preview of the Judgment just delivered by my learned brother, Agbo, J.C.A. I entirely agree with his opinion that this Appeal is unmeritorious and ought to be dismissed. Thus, I abide by the consequential orders made in the lead Judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree entirely with the lead judgment of my learned brother, R. C. Agbo, J.C.A. that this appeal is devoid of any merit. I also dismiss it with the same order as to costs.
Appearances
S. M. Danlami Esq.For Appellant
AND
Danjuma D. Rimdam Esq. with him Mrs. M. Adeniyi and J. BaluagoFor Respondent
