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National Industrial Court

DR. (MRS) EUGENIA E. AKORTHA -VS- UNIVERSITY OF BENIN & ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

                   HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE:  6TH JUNE, 2019                                                 

SUIT NO: NICN/BEN/22/2013

BETWEEN

  1. (MRS) EUGENIA E. AKORTHA………………….CLAIMANT

 

AND

  1. UNIVERSITY OF BENIN
  2. GOVERNING COUNCIL, UNIVERSITY   …..…………..DEFENDANTS

      OF BENIN                                 

REPRESENTATION

R.O Imafidon with him is I.S. Airende for the claimant

E.A Eke with him are L.E Omorogbe, S. I, Abasilim for the defendants                                                   

JUDGMENT

This suit was instituted by a General Form of Complaint filed on 1st August, 2013. According to the averments of the claimant in the Amended Statement of Facts filed on 2nd November, 2017, she joined the service of the defendants vide a letter dated 23rd October, 1990, the offer of appointment took effect from the 6th April, 1990, the appointment was confirmed by a letter of 19th June, 1993. She was promoted through the ranks to the position of Senior Lecturer. She obtained a Doctorate Degree in Microbial Genetics in year 2000, that although she was announced by the Senate of the University as an Associate Professor in 2011 with effect from 2009 until the purported termination of her appointment. That she was invited sometimes in 2012 to appear before a Panel investigating Admissions Racketeering in the 1st defendant without being confronted with any documents whatsoever or any list given to her of the witnesses who were to also appear and neither was any allegation made against her. That when she was before the Panel on 16th July, 2012, she was ask to explain how one Miss Gloria Imomoh, who was a fake student was admitted without the approval of Dr. Chris Oke, the Representative of the University Admissions Board as his signature on the Eligibility Form was purportedly forged. She stated that on the validation, clearance and registration of in-take for the 2008/2009 Academic Session, one Mrs Isitua who was the Course Adviser B was directly answerable to the then Head of Department, Dr. Atuanya and that she was not connected with how Miss Gloria Imomoh was admitted as the issue of validation, clearance and registration was done about a year before she was asked to prepare the results which the students had already sat for. She relied on the 100 level 1st and 2nd Semester Results, 2008/2009 Session which was duly prepared and signed by her, the Head of Department as well as the Dean, Faculty of Life Sciences on 4th May, 2010, that she was the least in rank out of the three (3) signatories who endorsed the said results and did not have any direct dealings with other departments like the University Admission Board. She further stated that at the Panel, nobody testified against her neither was she given an opportunity of knowing what was said against her, if any, behind her back. She pleaded that she was maliciously issued with a query dated 18th September, 2012 for allegedly registering and preparing 100 level results for 2008/2009 Session in May, 2010. That she duly responded to the said query vide her reply dated 21st September, 2012, thereafter, she was summoned before the Senior Staff Disciplinary Committee (SSDC) by a letter dated 16th April, 2013 to defend herself for same allegation.

Claimant went on to state that she was not given any notice or query disclosing any reason to her of the intention of the 2nd defendant to remove her from office on the ground of misconduct or inability to perform her official duties neither was she given opportunity of making any representations in person before 1st and 2nd defendants when the meeting for her removal was convened until she received the termination letter dated 14th May, 2013 with effect from 18th April, 2013. That nothing was paid to her in lieu of notice though the defendants stated in the termination letter to do so, she also stated that she still has at least 14 years before she would have retired from service. She equally added that she was threatened by the defendants to be forcibly ejected from her official residence at three different times.

Consequence upon the foregoing, the claimant claims against the defendants as follows:

  1. A Declaration that the decision/resolution by the 2nd defendant held at its purported 138th regular meeting on 17th and 18th of April, 2013, to wit, terminating the appointment of the claimant, as contained and conveyed by the defendants in their letter Ref: REG/SSA/P.5048/120 dated and served on the claimant on 14th May, 2013 which purportedly took effect from 18th April, 2013 is malicious, wrongful, unlawful, illegal, null and void, as it contravenes the Regulations governing the Senior Staff of the defendants, the provisions of the University of Benin Act 1975 as amended and the principles of fair hearing.
  2. A Declaration that the claimant’s employment with the defendants, being statutorily flavoured, is still valid and subsisting the claimant being on a permanent and pensionable cadre, until her voluntary retirement.
  3. An Order of reinstatement of the claimant forthwith with the immediate restoration and payment of all her salaries, allowances, benefits, rights and privileges attachable to her office which include: her monthly net salary of N292,111.74 out of her gross monthly salary of N353,247.74 from April, 2013 till judgment is delivered, representing special damages.
  4. N2m (Two Million Naira) as general damages.

In reaction to the statement of fact, the defendants filed it statement of defence on the 15th of August, 2013 and by a consequential amended statement of defence on 5th May, 2017 they averred that the claimant cannot claim ignorance of the case against her having appeared before a Panel investigating the issues relating to fake admission of student in her department and being issued a query in that regard and with the letter of invitation to appear before the SSDC, they averred further that the SSDC is not a Court of law, hence, did not need to line up witnesses against the claimant or observe the rule of legal drafting and Court procedures. Furthermore, that the SSDC and Governing Council established the issue of fake admission of the said Miss Gloria Imomoh and that the claimant and her cohorts acted in concert to further the illegal student’s career at the University, that while they are in a position to provide the results for 100 level results for the 2008/2009 Session in the Faculty of Sciences, they know nothing about the ‘list of compilation’ referred to by the claimant.

In response to the particulars of malice/denial of fair hearing by the Panel investigating admission racketeering, the defendants stated that the Investigating Panel was set up only to find veracity or otherwise of fake admission of students in the department in question and not to investigate and apportion blame but to advise management about those connected and how to stop the malaise, thus, the claimant was wrong to assume she was on trial before the Panel. It is also stated that there is no law that requires them to attach documents and list of witnesses to the query issued to her as the said query was already self-explanatory of the allegations against her. Their response to particulars of malice/denial of fair hearing by the SSDC is that the SSDC is also not a Court of law but an administrative panel and that the Committee observed all rules of fair hearing as mandatorily required by the extant laws and regulation governing discipline in the 1st defendant.

It is further posited that the claimant is only entitled to three (3) months salary in lieu of notice as she was not yet a Professor before her appointment was terminated and that her cheque for same is ready if she would collect it. The defendants stated that they wrote two separate letters to the claimant on the need to vacate the official quarters but that there were mistakes in the letters as the claimant is entitled to three (3) months’ notice to vacate the quarters with effect from the date of the termination of her appointment but denied ever planning to forcibly eject her except in accordance with the extant regulation of 1st defendant. The defendants raised preliminary points of law as follows:

  1. That the suit is not initiated by due process of law
  2. That there is no reasonable or any cause of action
  3. That this suit is an abuse of Court process
  4. That this Court has no jurisdiction to entertain this suit.

Consequent upon the foregoing, the defendants stated that the claimant is not entitled to all or any of the reliefs sought as it were baseless, rootless, illegal, incompetent, an abuse of the judicial and Court process and therefore should be dismissed in its entirety with substantial costs to them.

At trial, the claimant testified for herself as CW, she adopted her deposition on oath dated 2nd of November, 2017 as her evidence in the case, she also tendered some documents which were admitted in evidence and marked Exhibits EA-EA11. The defendants also testified through one Wilfred Imagbe, He adopted his written statement on oath dated 24th October, 2018 as his evidence in the case. He also tendered some documents which were admitted in evidence and marked Exhibits W1-W2.

According to the rules of Court, the final written address of the defendants was filed wherein they raised an issue for determination;

Whether or not the claimant has established her case on a balance of probabilities to entitle her to the reliefs sought.

The defendants’ counsel submitted that the success of the claimant in her case depends on her ability to prove that the defendants breached the relevant provisions of Section 17 of the University of Benin (Transitional Provisions) Act Cap U4, Laws of Federation, 2004 and Chapter X11(5)a of the Regulations Governing the conditions of Senior Staff of the University, upon which her letter of termination of appointment was issued to her but that from the totality of her evidence before the Court, she has failed to discharge the evidential burden placed on her in that regard on balance of probabilities as required by Sections 131 and 132 of the Evident Act, 2011. That this legal duty does not shift to the defendants except the claimant has sufficiently discharged this burden as he who asserts must prove. See UBA Plc v. Samba Petroleum Co. Ltd [2002] 16 NWLR (Pt. 793) pg 361 at pg 376. It is submitted that the defendants acted lawfully when they terminated the claimant’s appointment having followed due processes of law and regulations governing her employment, hence, the claimant’s case in that regard is baseless and mischievous. Counsel then urged the Court to hold that the claimant has not established and proved any breach of contract by the defendants while he referred to the Supreme Court case of Idoniboye-Obu v. N.N.P.C [2003] MJSC 131 ratio 13.

It is further argued that the claimant was given adequate opportunity to state her defence in this case in accordance with the laid down disciplinary processes of the University, therefore that her case cannot be sustained.

The claimant framed three issues for determination in her final written address filed on 17th January, 2019 as follows:

  1. Whether the Panel investigating Admission Racketeering, the Senior Staff Disciplinary Committee and the Governing Council which purportedly investigated and tried the claimant for misconduct complied with the extant provisions relating to fair hearing in the Regulations Governing the service of Senior Staff, the University of Benin Act LFN 2004, the Public Service Rules and the 1999 Constitution of the Federal Republic of Nigeria, as amended.
  2. If issue (1) above is not in the affirmative, whether the purported termination of the claimant’s appointment by the defendants is not ipso facto unlawful, wrongful, illegal, null and void being in breach of the contract of service which appointment is therefore valid and subsisting.
  3. Whether in an employment with statutory flavour, a re-instated and or restored officer is not in addition to special damages entitled to general damages.

On  issues 1 and 2, the claimant’s counsel argued that from the state of the pleadings and evidence led in this case, the claimant has established and proved her case against the defendants on the balance of probabilities, sufficient in law to entitle her to the grant of all the reliefs sought as required under Sections 131 and 132 of the Evidence Act, 2011, contrary to the submissions of defendants’ counsel in their written address, that the claimant’s counsel’s submissions in the said address are otiose, nebulous, grossly misconceived and manifestly unsustainable which ought to be completely discountenanced as an idle wind. It is the contention of Counsel that owing to the serious and fundamental issues of grave administrative and constitutional law concerns raised in this case, the appropriate preserve which regulates the disciplinary procedure for investigating and trying a Senior Officer for alleged misconduct in the University within the regulatory purview of the Regulations is Chapter XII(5)(b) (I), (II) (a-h) and 5(IV) (a – c) instead of Chapter XII 5(a) as cited by the defence counsel and also that the latter is not in tandem with Section 17 of the University Act as submitted by defendants’ learned counsel. In furtherance of his argument, counsel submitted that in respect of the claim by Dr. Oke, that his signature was forged, no handwriting expert was invited to evaluate the truth of the claim and that the eligibility form carrying the signature of Dr. Oke was not tendered, also that nobody including the claimant was prosecuted and convicted for forgery and or complicity in a regular Court, which facts collectively drain the query, the hearings conducted and the termination. He placed reliance on the authorities of Aiyetan v. NIFOR [1987] 3 NWLR (Pt. 59) at 48 and FCSC v. Laoye [1989] 2 NWLR (Pt. 106) at 652. It is also submitted that the defendants’ sole witness was not yet a staff of the University in 2012 when the Panel investigated the claimant, therefore not in a position to say anything on what transpired at the hearing as he lacks personal knowledge of the facts, thus, his testimony on the Panel’s hearing is hearsay and inadmissible. See Sections 137 and 126 of the Evidence Act, 2011.

He contended that evidence to establish compliance with the requirements of fair hearing as mandatorily prescribed at pages 144-148 of the Regulations places the burden of proof on the defendants in consonance with Sections 131(1) (2), 132, 136(1) and 140 of the Evidence Act, 2011, and the defendants having failed to lead evidence to establish compliance with the mandatory requirements of an Ad-hoc Committee, the Court is urged to hold that the hearing conducted by the Panel investigating Admission Racketeering is null and void as adumbrated in the case of Anisminic Ltd v. Foreign Compensation Commission [1969]1 ALL ER 208 at 233. Further contention is that the query issued to the claimant is devoid of all the features mandatorily required under Rule 030307 of the Public Service Rules in that, the query is vague and imprecise, no particulars of forgery and or registration was given and the rule allegedly broken was not mentioned as well as the penalty, moreso, that none of the acts mentioned at pages 141 and 142 of the Regulations was mentioned in the query and none was proved before any of the Panels, hence, since the allegation of forgery was not proved, the issuance of the query is unjustifiable in law.

Again, it is submitted that the defendants led no admissible and acceptable evidence whatsoever on who set up the SSDC, duration/tenure, membership and terms of reference as mandatorily required under Chapter XII (5) (a) – (h) at pages 145 – 147 of the Regulations, which are conditions precedent to the exercise of jurisdiction by the SSDC, reference was again made to the case of Anisminic Ltd v. Foreign Compensation Commission (supra). It is argued that Exhibit W1 is a documentary hearsay and cannot be admitted in evidence under Section 37 of the Evidence Act, 2011 that it is also contrary to the provisions of Section 126 of the Evidence Act, 2011. He relied on the cases of Uteh v. State [1962] 1 NWLR (Pt. 223) at 257 and JAMB v. Orji [2008] 2 NWLR (Pt. 1072) 552. That assuming without conceding the said Exhibit is admissible, the Court should not ascribe any probative value to it being a worthless document as buttressed in the case of ANPP v. Usman [2008] 12 NWLR (Pt. 1100) 148 at 242.

In addition, counsel argued that the defendants did not tender any evidence whatsoever to show that the Governing Council invited the claimant to appear before her after Council received the report of the SSDC but proceeded to terminate her appointment even as an Associate Professor in flagrant regard to the provision of Section 17 of the University Act, rendering the termination null and void. Furthermore, that the letter of termination served on the claimant on 14th May, 2013 took retrospective effect from 18th April, 2013, that same is ipso facto bad in law on the basis of the latin maxim lex prospicit non respicit. Consequently, it is submitted that the termination is a gross violation of the provisions of the University Act, the Regulations governing the service of Senior Staff, the terms of the claimant’s employment, the provisions of the Public Service Rules and the 1999 Constitution of the Federal Republic of Nigeria as amended.

That on the basis of the above, the claimant is entitled to be reinstated into her employment with the 1st defendant with the attendant restoration of all her rights and privileges from the 18th April, 2013 when her appointment was purportedly terminated.

Counsel on issue three submitted that owing to the peculiarities of this case considering the way and manner the claimant’s appointment was wrongfully terminated, her status, the trauma suffered, the collapsed naira, the volume of inflation and transportation expenses, the claimant ought to be awarded general damages in addition to the special damages, he urged the Court to do so. Also, that whether the award of general damages in addition to special damages will amount to double compensation is a question of fact depending on each case which is not in this case.

Finally, the Court is invited to grant all the reliefs sought by the claimant and to hold that the termination is null and void.

In reply to the claimant’s final written address, the defence counsel submitted that the address and the various issues raised are misconstruction and misconception of the interpretation of the University Act and Regulation governing the Service of Senior Staff of the University (Revised in 2003). That the defendants complied with the relevant rules in terminating the appointment of the claimant as evidenced by Exhibits tendered. It is submitted that it is the law that what an employer considers as ‘misconduct’ constitute the basis the employer will be justified to terminate such appointment. That where an employee has been found guilty by a Disciplinary committee of any act of gross misconduct, the employer may either exercise its discretion in favour of prosecuting the erring servant of dismissing him summarily, therefore, prosecution before a Court of law in the circumstance is not a sine qua non for summary dismissal. He placed reliance on the cases of Oyedele v. Ife UTH [1990] 6 NWLR (Pt. 155) 199 ratio 2 and S.B. Olarewaju v. Afribank Plc [2001] FWLR (Pt. 72) 2008 ratio 10. He went on to state that in the instant case, the defendants did not hinge the termination of the appointment of the claimant on allegations of criminal acts but based on misconduct and that it is only in a case where dismissal is based on allegation of crime that the allegation must first of all be proved before the dismissal can stand.

On the whole, counsel urged the Court to uphold the termination of the claimant’s appointment and dismiss this suit for lacking in merit.

I have read and considered all the processes filed in this suit, the evaluation of which would be best determined by this sole issue; Whether or Not the Claimant has proven his case to be entitled to the reliefs sought?

It is not in contention that the claimant was an employee of the defendants from the year 1990 till 2013 when her employment was terminated; it is equally not in controversy that the claimant was issued query on the 18th September, 2012 on the grounds that she was involved in admission racketing for one Miss Gloria Imomoh who happened to be a fake student; that she was also invited to appear before the 1st defendants disciplinary panel on the 12th of July, 2012 and16th April, 2013 and that her employment was terminated on the 14th of May, 2013 with retrospective effect. The facts at variance in this suit however, pertains to the facts that according to claimant her purported employment with the 1st defendants was determined without adherence to the rules of fair hearing that is without strict compliance with the laws and Regulation governing her contract of employment with the 1st defendant. To this the defendants responded and states in defence that it strictly complied with the extant rules binding its employment with the claimant and to that end claimant’s employment was validly determined. Parties are also ad idem that the laws regulating the employment and discipline of the claimant in this case are the University of Benin Act and Regulation Governing Senior Staff of the University of Benin.

Before going into the main crux of this case, parties raised some preliminary issues that must be resolved first. The defendants in their pleadings raised preliminary points of law as follows:

  1. That the suit is not initiated by due process of law
  2. That there is no reasonable or any cause of action
  3. That this suit is an abuse of Court process
  4. That this Court has no jurisdiction to entertain this suit.

It is settled law that where a jurisdictional issue is raised, it must be considered first, this is because jurisdiction is a radical and crucial question of competence, See the cases of Esabunor & Anor v. Faweya & Ors [2019] LPELR SC; Abubakar Sani Danladi & Anor v. Usman Udi & Ors LPELR [2019] CA/YL/41/19; Wema Securities and Finance Plc v NAIC (2015) LPELR 24833 (SC); IGP v. Andrew [2014] LPELR-22310 (CA). Aero Contractors Company of Nigeria Ltd v. Mr Kingsley Oguine & Ors [2018] LPELR-46764CA. The issue of jurisdiction is a foundational matter the absence of which a suit cannot subsist. If a Court has no jurisdiction to determine a case, the proceeding remains a nullity no matter how well conducted. This is so because any defect in competence is not only intrinsic but extrinsic to the entire process of litigation. See the cases of Nduul v. Barr. Wayo & Ors [2018] LPELR- 45151SC; SCOA Nig Plc & Anor v. The Registered Trustees of Methodist Church of Nigeria &Anor [2016] LPELR-40191 CA. I noted that the defendants only pleaded these averments on jurisdiction by paragraph 26 of their amended statement of defence but failed to address the Court on how this Court lacks jurisdiction to entertain this suit. I find no further argument or evidence to substantiate this issue, in that the defendants did not proffer any cogent evidence in prove of their claim for lack of jurisdiction. The general rule of evidence is that cases must be proved secundum allegata et probate. An averment in a pleading is not evidence and cannot be substituted for evidence. Such an averment without more, cannot therefore, amount to proof unless it is admitted by the opposing party. In effect, where an averment has not been supported by Evidence, that averment is deemed abandoned and must be struck out by the Court. See the case of Emmanuel v Umana & ors [2016] LPELR 40037 SC; Okonkwo v Zurmi & Anor [2018] LPELR 46855 CA. It is in the light of this that I discountenance with the defendants averments at paragraph 26 of amended statement of defence as it is deemed abandoned.

It is pertinent to state here that the learned claimant’s counsel in his written address argued at paragraphs 5.00 -5.18 that exhibit W1 is a documentary hearsay and cannot be admitted in evidence under Section .37 of the Evidence Act, 2011 on the premise that the DW1 who gave evidence does not have direct personal knowledge of it as provided for vide Section 126 of the Evidence Act supra. He submitted that whether a piece of evidence is hearsay or not is dependent on the purpose for which is given. If it is given to prove the truth of what is asserted, the person given such evidence because it is not from his personal knowledge, gives hearsay evidence, and it is inadmissible. He also submitted that exhibit W1 is not signed. He stated that the defendants’ frontloaded a photocopy of the SSDC report which has 17 pages which is unsigned and then curiously at trial, added a signed document to the unsigned report without filing an application to amend by putting the claimant’s counsel on notice. It is his argument that while exhibit W1 is clearly paginated that is divided into a number of distinct pages, the signature page an addendum to the frontloaded document is not paged or distinctly numbered. He then submitted that the un-numbered page cannot and should not be treated as part of the document. He posited that there is nothing linking the purported signatories to the membership of the SSDC, he submitted that none of the persons who purportedly appended his signature indicated the date the signature was made so as to reconcile it with the time the SSDC report was made. He also submitted that the SSDC report did not list out or indicate the members of the Committee and the report is silent on who the terms of reference and the procedure adopted by the committee was not equally revealed in the report. He stated that it will be improper to treat the signature page in Exhibit W1 as part of the SSDC Report having due regard to the circumstances surrounding its doubtful origin. He urged the Court to so hold. The defendants on the other hand did not join issues with the claimant on this issue or controvert his argument in this regards.

On the first leg of the preliminary issue, admissibility is primarily founded on relevancy and pleading; it must be shown that what is sought to be established by the piece of evidence is relevant. The law is that even if the evidence is admissible, if it is not relevant, it cannot be admitted because it does not advance the cause of the party seeking to tender same. See Durosinmi v. Adeniyi & Anor [2017] LPELR-42731CA; In the case of Effiong v State [2016] LPELR 42052 CA the position of the law is that any evidence which is sought to be admitted must be of sufficient relevance. By R. v. Blastland [1986] A. C 41, 81 CR APP. Rep 266 HL; evidence is relevant if it is logically probative or disprobative of some matter which requires proof. Evidence which is relevant will not necessarily be admissible, for while relevance is a condition precedent to admissibility, further rules of exclusion exist which may serve to exclude evidence which would generally be considered to be relevant. Thus evidence must be (1) relevant and (2) admissible according to the rules of exclusion. It is germane to state that exhibit W1 is the SSDC report of the defendant and the report is the fulcrum upon which this case rest and therefore it is relevant for the just determination of this suit. Respecting the assertion of the claimant that DW1 cannot tender exhibit W1 on the basis that he was never the maker of the document. It is obvious that exhibit W1 is a public document which was duly certified and it was tendered by DW1 one Wilfred Imagbe who vide his witness statement on oath is a legal officer in the Legal Services Division of the 1st defendant. It is trite that a certified document need not be tendered by the maker of the document. Once certified from proper custody, it can be called in or tendered by anybody. As a public document it may be even tendered from the bar. See the cases of Esezobor v. Said [2018] LPELR- 46653CA; Akpan v Etim & Ors [2017] LPELR 43728 CA; Abu v Ahmed [2017] LPELR-43179(CA). In effect and in this regard, since exhibit W1 is a public document, relevant and emanated from a proper custody, it is admissible and can be relied upon even when the maker is not called. I so find and hold.

On the second leg of claimant’s argument that the document was not signed, it is noted that a careful examination of both documents, that is the non-certified SSDC report frontloaded by the defendants prior to trial and the certified SSDC report tendered during trial discloses significant difference in that the non-certified report frontloaded prior to the trial of this suit has only 17 pages and the certified report tendered during the trial has 17 pages and an addendum page which carries the signature of the purported members of the panel as rightly argued by claimant counsel. The added document was not paginated as in “18”, it is blank and unnumbered. It raises some doubt as to the validity of whether the added page was that of the SSDC report. That to me, looks like the defendants in their bid to correct their omission as seen in the non-certified SSDC report before trial, hurriedly took out the back page of a previous SSDC report where it had signatures of the member of the panel and attached it to exhibit W1. Or that they hurriedly obtained signatures of some SSDC members after they discovered their folly so as to cover their tracts. I say so in that there is nothing on exhibit W1 evincing that the purported members that signed the added page of exhibit W1, are the members that constituted the panel. The names of the signatories to the said report were not written in the report, which is the first cause for concern. There is nothing linking the added signature page to the earlier 17 pages for it to be held as one and the same document. An indepth look at the signed page evince to any reasonable man that it is a separate sheet of paper blurred at its margin and remarkably different in appearance to pages 1 to 17 of the report. Also, the defendant in this suit has equally failed to canvass evidence to show otherwise in this instant case save for the argument of learned defence counsel on record that “the SSDC report, it is not a computer generated what happened to this document is that the last page was detached” and it is not in the place of the Court to canvass for evidence in a bid to prove the evidence for a party. The law is notorious that address of counsel no matter how well written cannot take the place of evidence. Niger Construction Ltd v. Chief A.O. Okugbeni [1987] 4 NWLR, PT. 67 787. Therefore, the argument of counsel in this regard is not tenable and thus discountenanced. I find from exhibit W1 that the signature page is not and cannot be part of the Report of the SSDC, i.e. exhibit W1. It is on this basis that I discountenance and strike out the added page of the SSDC report, i.e. the signature sheet attached to exhibit W1. I so find and hold.

Now having dismissed the added page of exhibit W1, what is the effect of an unsigned document? The law is settled that an unsigned document is a worthless paper which cannot be countenance by the law. Authorities abound to the effect that an unsigned document is not only worthless, it is inadmissible. Where it is admitted, it attracts no weight or probative value at all. See among the plethora of authorities on this principle Uzokwelu v PDP & Ors [2018] LPELR 43767 CA; Haruna & ors v Mai-Jega [2018] LPELR 46779 CA  OMEGA BANK V. O. B. C. LTD (2005) SCNJ 150. In AIKI V. IDOWU (2006) 9 NWLR (PT. 984) 47 cited and relied upon in NWOSU NORTH AND SOUTH INT. LTD. & ANOR. V. NIG. INTERNATIONAL TRD AND INDUSTRIAL (2014) LPELR – 23425 (CA) ALAGOA, JCA as he then was held that where a document which ought to be signed is not signed, its authenticity is in doubt. The report equally has no name of the members of the panel who sat and considered the claimant’s case. Flowing from the above stated case law authorities, I have no hesitation in making a finding that exhibit W1 in effect is a worthless piece of paper and not worthy of any probative value, hence it is to be expunge from the record of this Court and thus expunged. I so find and hold.

It is the contention of the claimant that the decision/resolution by the 2nd  defendant held at its purported 138th regular meeting on 17th and 18th of April, 2013, to wit, terminating the appointment of the claimant, as contained and conveyed by the defendants in their letter Ref: REG/SSA/P.5048/120 dated and served on the claimant on 14th May, 2013 which purportedly took effect from 18th April, 2013 is malicious, wrongful, unlawful, illegal, null and void, as it contravenes the Regulations governing the Senior Staff of the defendants, the provisions of the University of Benin Act 1975 as amended and the principles of fair hearing. The defendants in response stated that it observed all rules of fair hearing as mandatorily required by the extant laws and regulation governing discipline in the 1st defendant. It is the law that an employee seeking a declaration that the termination of his employment is a nullity must place before the Court his terms of employment and show how it was unlawfully determined. See Ahmed v Abu & Anor [2016] LPELR 40261-CA; Ikuma v Civil Service Commission Benue State & ors [2012] LPELR 8621 CA. The claimant in this case as stated earlier in this judgment has tendered the terms of his employment and canvassed evidence in support of her assertion.

Now, it is notorious that an employer, before dismissing/terminating the employment of his employee, must satisfy the requirements of fair hearing by following the procedure as provided for in its contract of employment binding it. It is trite that where a party is given ample opportunity to present his/her case within the boundaries of the law, he/she would have been said to have been given a fair hearing. Fair hearing is a requisite requirement of justice encapsulated to ensure that parties are given opportunity to be heard and present their cases as provided for in the 1999 Constitution as amended either in Court or in extra judicial or administrative panel. See the cases of Nwokocha v A.G of Imo State [2016] LPELR 40077 SC; Ogboro v Registered Trustees of Lagos Polo Club & Anor [2016] LPELR 40061 CA; Audu v FRN [2013] LPELR 19897 SC

A perusal of the University of Benin Act and Regulation Governing Senior Staff of the University of Benin respectively, Chapter XII rule 5B which is the disciplinary procedure for misconduct and serious misconduct provides thus;

Section 17 provides for the Removal of academic and administrative officers and other staff thus:

 

  1.  If it appears to the Council that there are reasons of believing that the  Deputy Vice-Chancellor  or any  other person employed as a senior member, administrative, technical or professional staff of the University should be removed from his office or employment on the ground of misconduct or of inability to perform  the function of his office or employment the council shall-
  2. Give notice of those reasons to the person in question;
  3. Afford him an opportunity to make representation in person on the matter to the council
  4. If he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangement
  5. For a joint committee of Council and to Senate  to investigate the matter and to report in it on the Council; and
  6. For the person in question to be afforded an opportunity of appearing before, and being heard by, the committee with respect to the mater

And if the Council, after considering any representation and report made in pursuance of this subsection, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the direction of the Council”.

 

 “5 B. TERMINATIONS, DISMISSAL AND RETIREMENT

Any officer in the service of the university may be terminated, dismissed and or retired by the Council of the University on grounds stated under Sections 3 and 4 of this Chapter only in accordance with the following rules:

  1. The Registrar shall notify the officer in writing of the grounds, upon which it is proposed to terminate, dismiss and or retire such officer, and he shall be called upon to state in writing before a date to be specified and grounds upon which he relies to exculpate himself

…………II…………;

III. Ad-hoc Committee of Enquiry

(a) The alleged misconduct shall be investigated by an Ad-hoc Committee of Enquiry as may be set up by the Head of Unit, Head of Department, Dean, Provost, Director in consultation with the Vice Chancellor, which committee shall consist of at least three persons, one of whom shall be a representative of the relevant Union to which the officer is a member.

(b) The vice Chancellor shall stipulate the terms of reference of committee.

(c)  If any witness is called to testify, the officer shall be entitled to be present and to put questions to each witness.

(d) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.

(e) If the officer does not furnish any representation within the time fixed, the Committee of Enquiry may take such actions, as it seems appropriate against him.

(f) if the officer submits representations and the Committee of Enquiry is not satisfied that he has exculpate himself, and consider that the officer should be dismissed, it shall make recommendations accordingly.

(g) if upon consideration the representations of the officer, the committee of Enquiry is of the opinion that the officer does not deserve to be dismissed from service but deserves some other punishment as it considers appropriate.

(h) if upon consideration the representations of the officer, the committee of Enquiry is of the opinion that the officer does not deserve to be dismissed, but that the facts of the case disclose grounds for requiring him to retire compulsorily, it shall so recommend.

It is apparent from the above highlighted provisions of the regulation and the Act which constitutes the claimant’s terms of employment, that the procedure to be followed by the defendants before terminating the claimant’s employment on the allegation of misconduct is the issuance of query to her and also affording her an opportunity to make representation in person on the matter to the Council, thereafter a joint committee of the Council is called upon to investigate the alleged misconduct. Also the alleged misconduct shall be investigated by an Ad-hoc Committee of Enquiry as may be set up by the Head of Unit, Head of Department, Dean, Provost, Director in consultation with the Vice Chancellor, he shall also be given the documentary evidence to be used against him and be allowed to cross examine witness/es if any. After the consideration of any representation, the Council if satisfied that she should be removed, then it may so do by an instrument in writing signed under/by the directive of the council. As reiterated, all the above procedure enunciated by the above Statute and Rules are to ensure fair hearing in the disciplinary procedure of its officers. It is the law that where an employment is protected by statute, the process of removal, suspension, termination, dismissal retirement etc. must be in compliance with the extant statute governing the employment and a breach of any statutory provision renders the process of such removal, suspension, termination, dismissal retirement void and of no effect. See the cases of Obianwuna v. NEPA [2016] LPELR 40935CA; L.C.R.I. v. Mohammed [2005] 11 NWLR (Pt.935).  Now the pertinent question to ask is did the defendant follow due process as provided for in the University of Benin Act and the Senior Staff Regulation in terminating claimant’s employment? It is clear from the documents tendered in this Court that the claimant was on the 18th of September, 2012 (exhibit EA6) issued a query on the grounds that “following the report of the panel investigation admission racketeering in the department of Microbiology. Senate was informed that as the Course Adviser you registered and preparing 100 Level results for one Miss Gloria Imomoh who happened to be a fake student” she responded to the query on the 21st of September, 2012 where she denied the allegation against her and stated amongst others that she prepared the 100 level result for Miss Gloria Imomoh and 131 others on the handwritten list of validly admitted students given to her by one Mrs C.C. Isitua for result compilation. That Mrs. C.C Isitua cleared Miss G Imomoh into the Department in the year 2009 and for all the 132 intakes. She only transferred the 132 names to her in May, 2010. That Mrs C.C Isitua handled the exercise under the supervision of the then Head of Department Dr. E.I Atuanya who from time during the exercise, told her what to do, and Mrs. C.C Isitua did not either by record or verbal hint, inform her of a fake admission or any other problem during the exercise. That she has no knowledge that Miss Gloria Imomoh’s Admission was fake as she was not in the position to open up the issues of validation, clearance and registration which was given to her colleague who was more computer efficient than her in that regard. She was invited by a letter dated the 12th of July, 2012 (exhibit EA5) to appear before the 1st defendant panel on the 16th of July, 2012. Also she was invited vide a letter dated 16th of April, 2013 (Exhibit EA5) to appear before the 1st defendant’s senior staff disciplinary committee on the same day to defend herself against the allegation which she did and upon which her employment was terminated on the 14th of May, 2013 but with a retrospective effect from 18th of April, 2013. It is germane to state that there is nothing on record evincing that she was afforded a fair hearing as there is nothing to show that she was given an opportunity to make representation before the 1st defendant’s council as requested and required by law. There is equally no evidence on record to prove that an Ad-hoc Committee was constituted by the claimant’s unit head to look into the matter as provided for by Section 17 and Chapter XII rule 5B (iii) (a-h) of the University of Benin Act and Regulation Governing Senior Staff of the University of Benin. No report or minute of the Senior Staff Disciplinary Committee was placed before the Court to show what transpired at the SSDC meeting. She was not given copies of documents presented against her as provided by clause 5B, 111 (d) of the regulations. I find that the foundation upon which the claimant’s employment was terminated in my respectful view is defective and that cannot stand as it is trite that you cannot put something on nothing and expect it to stand. See the cases of Macfoy v UAC [1962] AC and the Apex Court decision in the case of Aji  v. Chad Basin Development Authority & Anor [2015] LPELR 24562 SC.  This is also a clear indication that the defendants failed to follow the procedure listed in the University Act and regulation in determining its relationship with the claimant. This is a severe breach of the whole procedure. The implication of which is either that the 1st defendant were not circumspect in following the process as stipulated in the Act and Regulation in their bid to terminate the employment of the claimant. Page 9 of the purported report already discountenanced by this Court actually concluded that the claimant should be warned to be more careful in her future assignment. One then wonders why they hurriedly wanted to do away with the claimant’s contract of employment and this they did without due regards in breach of the law and in retrospect too. It is trite that in an employment with statutory flavour the employer cannot issue a letter of termination or dismissal to its employee with a back dating effect. Termination or dismissal of an employee must not be given a retrospective effect. This is because the law looks forward, not backwards as succinctly captured by this latin maxim, “lex prospicit non respicit.” By Akinola Arobieke v. National Electricity Liability Management Company [2017] LPELR-43461(SC); the apex Court held that the rules of fair hearing natural justice can neither be compromised nor waived. The reason is that any infraction to that basic rule of fair hearing should automatically bring to naught whatever had been done in the process of enquiry embarked upon by the panel, judicial or administrative. See also Darma v. Eco Bank Nig Ltd [2017] LPELR-41663 SC; Epenetu v Ofegobi & ors [2012] LPELR 9229 CA. It is obvious from these two apex Court decisions that the right of an employee under investigation to fair hearing is sacrosanct and where breached, the action will be deemed to be null and void and of no effect whatsoever. It is consequent upon the sheer disdain of the Act and Regulation guiding the discipline of the claimant that I find that the claimant was unlawfully terminated from the 1st defendant’s employment. Accordingly, the termination of the claimant by the 1st and 2nd defendants is null and void and thus set aside.

It is the claimant’s claim that her employment is still valid and subsisting and therefore she is entitled to be reinstated forthwith with the immediate payment of all her salaries, allowances, benefits, rights and privileges attachable to her office which include her monthly net salary of N292, 111.74 out of her gross monthly salary of N353, 247.74 from April, 2013 till judgment is delivered. I have held earlier in this judgment that the termination of her appointment is unlawful. It is the law of common that where employment is statutory and the statutory process for disengagement was not followed, the employee is entitled to be reinstated. Reinstatement in law means the placing of a person who has been dismissed/terminated without justification back to her position from which she was dismissed and also to restore her to the status quo ante bellum as it is deemed that the employee never left her employment and thus can be reinstatement. See the cases of National Union of Food Beverages and Tobacco Employers v Cocoa Industries Ltd Ikeja [2005] 3 NLLR (Pt 8) P.206; Judicial Service Commission Cross Rivers State & Anor v Young [2013] LPELR- 20592 SC. It goes without saying that since the nature of claimant’s employment is one with statutory flavour and same has been declared unlawful, the appropriate order to make in the circumstance is to make an order of reinstatement for the claimant. She is equally entitled to be paid all her benefits and monetary entitlements from when her employment was determined till the day of her reinstatement. It is on this premise that I find that the claimant is entitled to all her salaries and allowances which include her monthly net salary of N292, 111.74 out of her gross monthly salary of N353, 247.74 from the month of May, 2013 till the date of her re-instatement. I so find and hold.

Claimant also claims the sum of two million as damages, I have already given an order earlier in this judgment that the claimant is entitled to be reinstated as her employment is still subsisting and also for the payment of her salary arrears in damages. It will therefore amount to double compensation to the claimant if I resolve this claim in favour of the claimant. It is upon this basis that I find and hold that claimant’s claim for general damages fails.

In sum, I find that claimant’s case succeeds in the most part, thus I make these declarations and orders-

  1. That the termination of claimant’s appointment by the defendants is unlawful and therefore set aside.
  2. That the claimant is entitled to be reinstated to her erstwhile position forthwith.
  3. That the claimant is entitled to the payment of the arrears of her salaries from May, 2013 till the date of her reinstatement within 30 days of this judgment.
  4. That claimant’s claim for damages fail.
  5. This judgment is to be complied with including all his salary arrears to be paid within 30 days.

 

No award as to cost

 

Judgment is entered accordingly

 

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge

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