IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D

 

DATE: OCTOBER 7, 2021                                       SUIT NO: NICN/AWK/33/2016

 

BETWEEN:

Dr. Joseph Oghenebrorie Tedwins Emudanohowo                               -                  Claimant                                                             

 

AND

1.  Delta State University, Abraka

2.  Governing Council, Delta State University

3.  The Vice Chancellor, Delta State University                         -                  Defendants                                                 

 

REPRESENTATION:

L.O. Ogefere, Esq for the Claimant

G.O Inikori, Esq. Ph.D for the Defendants.

 

JUDGMENT

 

INTRODUCTION

1.      The claimant took out this action vide a complaint filed on 1st November 2016. The complaint is accompanied by the statement of facts, list of witnesses, list of documents and copies of the documents.  By leave of Court granted on 8/2/2018, the claimant amended his statement of facts dated 2/11/2016 in which the claimant is asking from the Court, against the defendants, the following reliefs:

a)     A declaration that the defendants’ letter dated 18th August 2016 titled “Dismissal from the services of the University” purporting to dismiss the claimant from the employment of the 1st defendant is ultra vires, null and void and of no effect whatsoever.

b)    A declaration that the purported dismissal of the claimant from the employment of the 1st defendant is in breach of the claimant right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) as well as the rules of natural justice and therefore null, void and invalid.

c)     A declaration that the purported dismissal of the claimant from the services of the 1st defendant during the pendency of an action instituted by the claimant in the High Court of Justice, Otu - Jeremi, Delta of Nigeria challenging the disciplinary procedure adopted by the defendants, is wrongful, contemptuous and therefore invalid.

d)    A declaration that the purported dismissal of the claimant from the services or employment of the 1st defendant by the defendants in breach of the Mandatory Disciplinary Procedure spelt out in the Delta State University Law is invalid, null, of no effect.

e)     A declaration that the claimant is still in the employment/service of the 1st defendant.

f)      An order setting aside the purported dismissal of the claimant from the services or employment of the 1st defendant and nullifying the defendants’ letter dated 18th August 2016, to the claimant.

g)     An order compelling the defendants to reinstate and/or restore the claimant to his position as a lecturer/senior staff of the 1st defendant with all his right (sic), entitlements and other perquisites of his office.

h)    An order compelling the defendants to pay to the claimant all his salaries, allowances and benefits from August 2016 till the date of delivery judgment and henceforth (sic).

 

2.      By leave of Court granted on 31st January 2017 extending the time, the defendants filed their memorandum of appearance and statement of defence dated 29th November 2016. By another leave of Court granted on 10th December, 2018, the defendants filed additional witness statement on oath of DW1 and DW2.

 

3.      At the trial, the claimant testified on his own behalf as CW and tendered 23 exhibits marked as follow:

1st Defendant’s letter of offer of appointment to the claimant dated 19th July 2005 (Exhibit A1); 1st Defendant’s letter of confirmation of claimant’s appointment dated 25th October 2007 (Exhibit A3).

Delta State University Abraka Regulations Governing the Service of Senior Staff (HATISS 6-15) (USS 1-7) – (Exhibit A2)

1st Defendant’s letter of promotion of claimant dated 9th August 2011 (Exhibit A4)

1st Defendant’s letter to the claimant dated 5th December 2013 titled: Appointment as Coordinator Department of Pharmacology and Therapeutic (Exhibit A5).

1st Defendant College of Health Services Internal Memo dated 6th June 2016 from Ag. Head of Department to Claimant Titled: Handing Over Notes (Exhibit A9)

1st Defendant College of Health Science Internal Memorandum dated 8th June 2016 from Ag. Head of Department to Claimant Titled:

ISLT Coordination/ISLT Regular Students Supervision (Exhibit A10)

Claimant’s letter to the Ag. Head of Department of Pharmacology and Therapeutics Delta State University dated 21st June 2016 titled: Re: Request for submission of marked scripts (Exhibit A6)

Claimant’s letter to the Assistant Registrar, Department of Pharmacology and Therapeutics DSU dated 1st August 2016 titled: Re: Non-Compliance with Directive to Prepare Handing Over Note (Exhibit AA6).

O. Ishegbu, Asst Registrar, Dept of Pharmacology and Therapeutics DSU’s letter to the claimant dated 3rd August 2016 titled: Re: Non–Compliance with Directive to Prepare Handing Over Note– (Exhibit AAA6).

Defendants letter to the claimant dated 28th June 2016 titled: Query: Refusal to submit ISLT Examination Script (Exhibit A7)

Claimant’s letter to the Vice Chancellor DSU dated 29th June 2016 titled: Re: Refusal to submit ISLT Examination Script (Exhibit A8).

Defendant’s letter to the claimant dated 12th July 2016 titled: Warning (Exhibit A11)

Claimant’s letter to the Vice Chancellor DSU dated 13th July 2016 titled: Re: Warning (Exhibit A12)

Defendants’ Internal Memo from Secretary (Ad-HOC Committee) to claimant dated 15th June 2016 titled: Invitation (Exhibit A13).

Defendants’ letter to claimant dated 27th July 2016 titled: Invitation to Appear Before the Senior Staff Disciplinary Committee (Exhibit A14)

Defendants’ Notice of Meeting of 97th Regular meeting of the Governing Council Holding on Friday, 12th August, 2016 Exhibit AA14).

Defendants’ Council Paper No. 2016/69 of Meeting of August 4 & 5, 2016 titled: Recommendation(s) from the Senior Staff Disciplinary Committee (Exhibit AAA14).

Letter from Ogefere & Company (Legal Practitioners and Claimant’s Solicitors) to the Registrar, DSU Abraka dated 27th November 2017 – Re: Application for CTC in possession of DSU (Exhibit CW1)

Claimant’s Solicitors’ letter to the Defendants dated 27th November 2017 titled: Application for CTC of 3 Documents (Exhibit CW2)

Certified True Copy of Motion on Notice by Claimant’s Solicitors in Suit No. HCG/M/26/2016 between the Claimant and Delta State University and 2 others (Exhibit A15)

Defendants’ letter to the claimant dated 18th August 2016 titled: Dismissal From the Services of the University (Exhibit A16)

Meeting of Council: Agenda and Papers: 97th Regular meeting dated 12th August 2016 (Exhibit CW3).

 

4.      The defendants raised objection to the admissibility of Exhibits AA14, AAA14 and CW3 on grounds that they are not pleaded, that they are photocopies, public documents; and that claimant has not shown to the Court how he get the documents not stated in paragraphs of his deposition. In reaction, the claimant said he served the defendants notice to produce the said documents on 11th December 2017 but the defendants did not produce the documents.

 

5.      For the defendants, Dr. Matthew Obaineh Ojezere, a Lecturer in the 1st Defendant’s Department of Pharmacology and Therapeutics testified as DW1 and tendered Exhibits PHA 518 and PHA 314 (Examination Attendance Sheets) as Exhibits DW1/1 and DW1/2 respectively. Exhibits PHA 312 CVS & Penal (Examination Attendance Sheet) stamped 05.05. 2018 having been withdrawn on grounds of non – certification; same being public documents. Exhibit DW1/3 (Result sheet for PHA 312 – CVS & Penal) was admitted in evidence through DW1.  Bank Oyawiri, Principal Assistant Registrar and Head of Legal Unit at the 1st Defendant University testified as DW2 and adopted his written statement on oath.

 

6.      At the close of trial, the parties filed their respective final written addresses.  The claimant’s was filed on 18th March 2021 in default of defendants filing theirs in line with Order 45 Rule 11 of NICN Rules 2017.  By order of Court granted on 16th July 2021, the defendants filed their final written address.  The processes were respectively adopted by the parties on 16th July 2021.

 

THE CASE BEFORE THE COURT

7.      To the claimant, he was an Academic staff of the Defendant; that his employment was regulated by the Delta state University Law as well as the Regulations governing the service of senior staff of the 1st defendant that the relationship between the claimant and the defendants became frosty due to his alleged failure as acting H.O.D. to properly hand over the department of Pharmacology and Therapeutics to his successor, Dw1, including his alleged to submit ISLT Examination Scripts; that consequently, he was issued a query which he replied to void Exhibit A8; that he was removed as ISLT coordinator/supervisor vide Exhibit A10; that he was given warning letter from the office of the Vice Chancellor and invited to appear before an adhoc investigative committee before he was subsequently invited to appear before the Senior Staff Disciplinary Committee. That he appeared before these committees and he was eventually issued with Exhibit A16 dismissing him from the employment of the defendants. That the claimant is aggrieved by the procedure adopted by the defendants leading to his dismissal and therefore filed the present action seeking the reliefs in paragraph 23 of his Amended statement of acts.

 

8.      To the defendants, the claimant was a lecturer 1 with the first defendant in the Department of Pharmacology and Therapeutics; that claimant was coordinator of the defendant between 4th December 2013 and 3rd December 2014; that claimant was coordinator of the Institute of Science Laboratory Technology (ISLT) programme in the Department until 8th June 2016; that claimant did not officially hand over as Ag. Head of the Department. That claimant stated before the disciplinary committee and the Court that he did not keep a copy of the results of Course PHA 312, PHA 501 (Principles of Chemotherapy) and PHA 513 for the 2014/2015 and 2015/2016 academic sessions for the ISLT which he taught and examined; that the Department under the sole leadership of the claimant kept no record of results submitted; that the Scripts for PHA 312, PHA 501 and PHA 513 for the ISLT programme for the 2014/2015 and 2015/2016 could not be found under the headship of the claimant and were not handed over the his successor head.

 

9.      The defendants went on that the claimant compelled his ISLT students he supervised their project to pay N60,000.00 each for project work which he also dispensed; that on sexual harassment (sic), same (sic) female ISLT students claimed that the first encounter with the claimant was in 100 Level when they visited his office for him to endorse their forms and claimant collected their phone numbers; that the female ISLT students claimed that claimant persistently called them and some of them have to change their phone numbers to save them from the sexual harassment. That one of the ISLT female students informed the SSDC that the claimant had canal (sic) knowledge of her when he forcefully pushed into a chair and raped her; that according to the student when she protested, the claimant told her that it is a normal thing to have sex with students in his office; that a second female ISLT student informed the SSDC that the claimant raped her. That the class Coordinator (male) told the SSDC that the claimant had severally sent him to invite some of the female ISLT students; that there was evidence that the claimant altered the results of ISLT students in Course PHA 513 and PHA 314 which he taught and examined.

 

10. The defendants continued that when Dr. M. O. Ojezele (DW1) took over from the claimant as acting HOD, he demanded for a hand over note orally and in writing from the claimant which claimant failed to give; that the Deputy Vice Chancellor (Academics) requested the claimant to give a formal hand over note to his successor, Dr. Ojezele, but the claimant failed to do so up to when his appointment was determined. That claimant was queried, warned and requested to produce the  script of the courses he taught, PHA 312, PHA501 and PHA513 Cardiovascular Pharmacology and Chemotherapy 1 & 2 respectively in the 2013/2014, 2014/2015 and 2015/2016  academic sessions, but claimant failed/refused to do so. The  claimant was invited and appeared before the SSDC to defend  himself of the various gross misconduct including refusal to give  written hand over note to his successor, sexual harassment, alteration of students’  examination scores; that after a thorough interview, the committee made its report and recommended actions to the 2nd defendant wherein the claimant was dismissed from the service  of the 1st defendant for mutilation of examination result scores for ISLT, insubordination and refusal to submit past question papers, marking schemes, marked answer scripts and results of courses examined by him.

 

SUBMISSIONS OF THE DEFENDANTS

11. The defendants formulated three(3) issues for determination, namely:

1.      Whether the defendants proved successfully that the claimant committed the act of gross misconduct allegation leveled against him to sustain his dismissal from the employment of 1st defendant.

2.      Whether the defendant (sic) successfully approved that the disciplinary  procedure leading to claimant’s dismissal is in total compliance with the provisions of the  laws governing the service of senior staff of the 1st defendant University

3.      Whether the claimant prove (sic) his case to be entitled to judgment.

 

12. Regarding issue 1, the defendants argued that they proved overwhelmingly that the claimant committed act of gross misconduct; that the facts concerning this case are simple and straight forward; that most of the facts with which defendants proved their defence were documentary as contained in the pleadings, evidence in Chief of claimant and his answers under cross examination. That the refusal of the claimant to give a formal hand over note to his successor, Dr. M. O.  Ojezele despite oral and written demand and the directives of the Vice Chancellor, Deputy Vice Chancellor (academics) and the Registrar, which were documented through queries and warnings were not contravened by the claimant. That the evidence that when Dr. M. O. Ojezele (DW1) took over from the claimant as acting head of department, he demanded orally and in writing for a hand over note from the claimant (Exhibits A9 and A10) which the claimant admitted under cross examination and same supported by documentary evidence (Exhibit A9 dated 6/06/2016 and A10 dated 8/06/2016) also not in contention.

 

13. The defendant went on that claimant’s attempt to shift his failure to give a hand over note to the Assistant Registrar of his department; Mr. Ishegbe failed woefully as the Assistant Registrar exonerated himself of any blame (Exhibit AA6 dated 01/08/2016). That a community reading of the claimant’s letter to the Assistant Registrar of the Department dated 01/08/2016 (Exhibit AA6) and the response of the Assistant Registrar to the claimant dated 03/08/2016 (Exhibit AAA6) conclusively shows that the claimant refused to prepare the hand over note in gross disobedience to the directive of the Vice Chancellor (Academics) and the verbal and written   demand for same by his  successor head of department, Dr. M. O. Ojezele. That from the letter of the Assistant Registrar to the claimant, it is clearly stated that the claimant had insisted that he was not going to formally hand over to his successor, Dr. M.O. Ojezele; that in paragraph 10 of the claimant’s Additional Statement on Oath, dated 11th December 2017, the claimant admitted that “Dr. M. O. Ojezele, having taken over the department, subsequently orally requested for a handover note”. That in paragraph 11 of the claimant’s Additional Statement on oath dated 11th December 2017, the claimant further admitted that the successor Ag. Head of Department, Dr. M. O. Ojezele (DW1) served him with an internal memorandum dated June 6, 2016 instructing him to furnish the department with a comprehensive handing over note.

 

14. The defendants continued that in paragraph 7 of the witness statement on oath of Dr. M.O. Ojezele (DW1), it is clearly stated that it is the responsibility of the claimant as outgoing  head of department to prepare and give a hand over note  concerning  the totality  of the department which the claimant failed to do; that this piece of evidence was not controverted by the claimant and deemed admitted; that furthermore, in  paragraph 8 of the statement on oath of DW1, Dr. M.O. Ojezele, it is stated that “matters relating to question papers, students’ answer scripts and results, staff files, equipment, etc., are the duty of the outgoing head of department to  properly document same and  hand over to his successor, which the claimant failed to do so, “that this piece of evidence was never controverted by the claimant and deemed admitted. That in paragraph 12 and 14 of the claimants (sic) witness statement on oath, claimants (sic) witness statement on oath, claimant admitted that he refused to give a hand over note because the previous Dean/Head of Department did not give him a hand over note; that claimant did not lead evidence to show that Dean/Head of Department did not give him a hand over note but admitted under cross examination that he did not demand one from the previous head of department.

 

15. The defendants added that claimant  failed/refused to hand over the question papers, marking scheme, marked scripts and results in Chemotherapy 1 and 2 and Cardiovascular Pharmacology which the claimant taught and examined when he was head of the department despite request for him to do so (Exhibit A6)  i that claimant failed to give a hand over note which should have contained  a list of results, marked scripts etc.; that the students bore the damaging consequences of the  negligence and disobedience of the claimant in  circumstances.

 

16. That a community reading of the invitation letter of the claimant to appear before the SSDC and the  query from the Deputy Vice Chancellor (Academics) and Registrar of 1st defendant at the instance of the Vice Chancellor and the various responses by the claimant point to the irresistible conclusion that the claimant was at all material times aware of the  allegations/complaints against him which he was to defend at SSDC which included  claimant’s refusal to submit ISLT examination scripts and results, illegal collection of project fees from students, refusal to give a hand over note to his successor head of  department and sexual harassment of female ISLT students; that these are stated in various queries to the claimant, particularly that dated  27th July 2016 and the letter inviting the claimant to appear before the SSDC. That the response of the claimant to the query dated 28th June 2016 was adjourned unsatisfactory by the vice chancellor and consequently warned and was invited to appear before the SSDC to further defend himself; that the claimant further more appeared before the Ad-hoc committee and the SSDC where he gave oral and written defence.

 

17. That it is pertinent to state that the SSDC is a Committee of the Governing Council constituted by it and which it is statutorily responded by external and internal Council members pursuant to section 54 (1) (a) & (b) of the Delta State University Law CAP D47, 2008; that  in addition, section 6 (1) (m) of the law empowers the University  to prescribe rules for the discipline of students or staff of the University; that on the whole, it is conclusive that the claimant committed acts of gross misconduct, to wit: claimant refused to give a hand over note to his successor; that claimant refused to submit question papers, marking scheme, marked scripts and results of ISLT courses; that claimant altered the examination scores of Ewere Lilian Nwamaka (PHA314), Aroh Remi Tina, Ewere Lilian Nwamaka and Nwaobilor Kingdom (PHA513); and that claimant forcefully had canal (sic) knowledge of two ISLT female students, Orere Jesica Ifeoma and Apitikori Jecinta Enoh. That based on the forgoing evidence, the defendants have approved that the claimant (sic) acts as enumerated hereto amount to gross misconduct for which he should be dismissed from the services of the 1st defendant. See U.BN. Plc v. Orumba (2014) 2 NWLR (pt. 1390) 1 (CA); section xxxii of Delta State University, Abaraka. Regulations governing the service of senior staff (HATTIS 6-15 and UASS 01-07); Ajayi v. Texaco (Nig) Ltd (1987) 5 NWLR (pt. 62) 577. That from the forgoing, it is without contention that the defendants proved successfully that the claimant committed the act of gross misconduct leveled against him to sustain his dismissal from the employment of 1st defendant; and defendants then urged the court to resolve issue 1 in favour of the defendants and against the claimant.

 

18. For issue 2, the defendants argued that they proved successfully that the disciplinary procedure leading to claimant’s dismissal is in total compliance with the provisions of the laws governing the service of senior staff  of the 1st defendant University as contained in chapter 8 section 7 (vi) (a), (b) and (c)  of the Regulation governing the service of senior staff (HATISS 6-15) UASS 01-07, of the Delta State University, Abaraka, as approved with effect from 20th July 1998 (Exhibit A2). That in order to determine whether the procedure followed by the defendants in the dismissal of the claimant from the service of the 1st defendant was in compliance with existing law governing claimant’s employment with the 1st defendant, recourse shall be made to the disciplinary procedure as enshrined in the laws governing the service of senior staff of the 1st defendant University as contained in the Regulation governing the service of senior staff which is in pari material  with section 44 (1) Delta State University Law Cap. D47, 2008 and made under it; that the relevant portion of the defendants’ (sic) Regulations governing the services of senior staff  (Exhibit A2) and which is applicable to the claimants (sic) case is chapter 8 section 7 (vi) (a), (b) & (c) which state thus:

An employee shall not be dismissed in accordance with these regulations until:

(a) He has been hold in writing the grounds on which he is been considered for dismissal

(b) He had been given an opportunity of submitting representation to the Vice Chancellor through his head of department/unit

(c) The appropriate committee has  considered his representations and the recommendations (if any) of the head of department/unit

       Chapter 8 section 7 (vii) states thus:

No notice or salary in lieu of notice shall be given to an employee dismissed under the provisions of these regulations but dismissals shall take effect from the date on which the employee concerned is officially notified that he has been dismissed.

 

19. The defendants went on that chapter 8 section 7 (vi) (a) of the Regulations complied with by the defendants vide the query letters, e.g. Exhibit A7 in which the claimant was told clearly the details of the allegations against him and asked to show cause why disciplinary action should not be taken against him; that claimant’s responses (Exhibits A8 and A12) to the queries were adjudged by the Vice Chancellor as unsatisfactory and claimant was warned (Exhibit A11) and  requested to appear before the SSDC to further defend himself which he did orally and in writing of the allegations of gross misconduct made against him (Exhibit A14). That  claimant was also invited to appear before the Ad Hoc Committee which investigated allegations of sexual harassment against him (Exhibit A13), where he made oral and written  representations; that from the forgoing, it is beyond contention that the claimant was told in writing the ground on which he is been considered for dismissal; and that defendants in compliance with chapter 8 section 7 (vi) (b) of 1st defendant’s regulations, the queries issued to the claimant by the Registrar, and the Vice Chancellor shows that the claimant was given opportunity to make representation to the Vice Chancellor which he did in his response to the queries (Exhibit A8 and A12). That details of the allegations were contained in the queries and claimant response accordingly; that conclusively, the defendants afforded the claimant the opportunity of submitting representation to the Vice Chancellor; and the claimant did. The defendants urged the Court to so hold.

 

20. That applying the provisions of chapter 8 section (iv) (a), (vi) (a), (b) & (c) of the Conditions of Service governing the service of the claimant with the 1st defendant in the claimant with the 1st defendant in the instant case, it is beyond contention that the defendants accorded the claimant fair hearing and have fully complied with the disciplinary procedure contained in the conditions of service governing the employment of claimant with the defendant before he was dismissed. See Michelin VS (sic) Ltd v. Alaribe (2010) All FWLR (pt. 543) 1998 at 2012 paras (B-C) ratio 3; NEPA v. El-Fandi (1986) 3 NWLR 6 (pt. 32) 884; UBA Plc v. Oranuba (2014) 2 NWLR (pt. 1390) 1; Yusuf V ltd (sic) (1996) 6 NWLR (pt. 457) 62; Efeakorho v. DSJSC (2015) All FWLR (pt. 779) 1184 at 1203 paras A- G, ratio 4.

 

21. The defendants further submitted that where allegations have been made against an employee, the employer is entitled to set up a panel to investigate the allegations as in the instant case; that such an investigation panel is not a Court of trial; that it is enough if it gives any of the persons whose names feature in the in query the opportunity of making some representations, oral or written before it. That in the process of investigation, it cans (sic) receive  information from any source; that the panel of inquiry not being a  Court of trial, none of the persons whose name feature in the inquiry can insist on any right to cross examine the other person who makes allegations or present memorandum at the inquiry as been demands by the claimant in the instant case; that once the panel concludes its panel had prima facie been made out  which point to the fault of any person, the employee of the case against  him and  give him the opportunity to refute, explain or contradict it or otherwise exculpate himself by making any representation or defence thereto before the employer can lawfully use those points as bases for dispersing with the services. That this disciplinary procedure which is in tarden (sic) with the Regulations governing the service of senior staff (HATISS 6-15) UASS 01-07, of the  Delta State University, Abraka, as approved with effect from 20th July 1998 (Exhibit A2) was strictly and meticulously followed by the defendants in the process that culminated in the dismissal of the claimant. See UBA Plc v. Oranuba (2014) 2 NWLR (pt. 1390) P. I

                         

22. That from the evidence put before the Court in the instant case, it is beyond contention that the claimant engaged in willful disregard and disobedience of lawful order of his employer by refusing to prepare and give a hand over note to his head of department (DW1) despite the directive of the Vice Chancellor and Deputy Vice Chancellor (Academics) and his head of department. That willful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of gross misconduct which at common law attracts the penalty of summary dismissal because such willful (sic) disobedience is a reflection of a total disregard of an essential condition of a contract of service, namely, that a servant must obey a proper, reasonable and lawful order of the master, in default of which their contractual relationship cannot be expected to continue. See UBA Plc v. Soares (2012)11 NWLR p. 550; Sule v. Nigeria Cotton Board (1985) 2 NWLR (pt. 9) p. 599; BAB v. NCATC (1991) 5 NWLR (pt. 192) 388. See also Michelin VS Ltd v. Alaribe (supra) 1998 at 292 paras (H-A) ratio 2 which held that: 

The mere failure to accord a dismissed officer right of fair hearing is not enough to entitle him to judgment in an action from wrongful dismissed, if on the evidence before the Court a case of gross misconduct is made out.

 

23. Applying the principle in Michelin VS. (sic) Ltd v. Alaribe (supra), the defendants submitted that the defendants have established overwhelmingly on the evidence before the Court that the claimant committed acts of gross misconduct which the claimant has not contested anywhere and for which he was dismissed; that from the foregoing, it is submitted that the defendants have proved their defence to claimant’s reliefs to sustain the dismissal of the claimant from the service of the 1st defendant for gross misconduct. The defendants then urged the Court to so held and resolve issue 2 in favour of the defendants and against the claimant.

 

24. On issue 3, the defendants submitted that the claimant has failed woefully to show that the procedure followed by the defendants in the  dismissal of the claimant from the service of the 1st defendant was not in compliance with existing law governing claimant’s  employment with the 1st defendant;  that the limits test for determining whether the defendants complied with the existing laws governing claimant’s employment  with the 1st defendant is the disciplinary procedure in the Regulation governing the service of senior staff (HATISS 6-15) UASS 01-07 of the Delta State University, Abraka, as approved with effect from 20th July 1998 (Exhibit A2) vide chapter 8 section 7 (vi). That the claimant failed to prove  that  the defendants did not comply with the extant law governing the appointment of the claimant with the 1st defendant in the dismissing the claimant from the employment of 1st defendant; and defendant’s urged the Court to so hold and  resolve issue 3 in favour of the defendants and against the claimant.

 

25. In conclusion, the defendants argued that  in view of the documentary, oral testimony, cited case law, statutory authorities and logical argument placed before the Court, the Court is urged to hold that the claimant committed acts of gross misconduct, to wit, insubordination to the Vice Chancellor,  Deputy Chancellor (Academic) and his Head of his (sic) Department (HOD), by refusing to prepare and give a hand over note, marked scripts, marking scheme, results sheet for the courses he taught, alteration/mutilation of students results, sexual harassment of female students’ and extortion; that the defendants adhered strictly to the  disciplinary procedure governing the service of the claimant with the 1st defendant for the dismissal of a senior staff and; the rule of fair hearing was meticulously obeyed in the procedure  leading to the dismissal of the claimant from the service of the 1st defendant;  and that the claimant (sic) case lacks merit and the reliefs sought by the claimant failed and are dismissed.  

 

THE SUBMISSIONS OF THE CLAIMANT

26.  The claimant submitted three issues for determination, namely:

1)    Whether the dismissal of the claimant from the employment of the 1st defendant was in strict compliance with the mandatory provision spelt out in section 44 of the Delta State University Law and its Senior Staff Conditions of Service

2)    Whether the dismissal of the claimant from the employment of the 1st defendant was not in breach of his constitutional right to fair hearing.

3)    Whether the dismissal of the claimant from the employment of the 1st defendant during the pendency of an action in the High Court of Justice, Otu-Jeremi, Delta State challenging the disciplinary proceedings initiated against him is not contemptuous of the Court and therefore liable to be quashed.

 

27. For issue 1, the claimant argued that it is not in dispute in this proceeding that the employment of the claimant (being an academic staff of the 1st defendant) is regulated by the Delta state University Law Cap D47 vol 2, Laws of Delta State of Nigeria, 2008 (see section 39 of the law) as well as Exhibit A2 (Delta State University Senior Staff Conditions of Service) made pursuant to the provisions of the Delta State University law. See section 6 (1) (m) of the law. That the law also stipulates the procedure to be followed in removing/dismissing him from the 1st defendant’s employment; that the claimant pleaded this fact and led evidence in proof of same in paragraph 5 of the Amended Statement of Facts as well as paragraph 6 of his Additional Statement on Oath; that this fact was not denied by the defendants’ witnesses in their statements on oath. See paragraph 5 of the statement on oath of DW1 and paragraph 4 of the statement on oath of DW2. That throughout the cross examination, DW2 (who is the Head of the Legal unit of the 1st defendant) admitted that the employment of all academic, administrative and technical staff of the 1st defendant (which include the claimant) are regulated by the Delta State University Law as well as Exhibit A2 and that the law also stipulates the procedure for dismissing an erring academic staff. That it is therefore submitted that the employment of the claimant enjoying statutory flavour; that an employment is said to have statutory flavour when the appointment and discipline of an employee are protected by statute or laid down regulations made pursuant to the provisions of a statue to govern the procedure for employment and discipline of an employee. See CBN v. Igwillo (2007) 14 NWLR (pt. 1054) pg. 393; Power Holding Company of Nigeria Plc v. Offoelo (2013) 4 NWLR (pt. 1344) pg 380 Ratio 3, 4; CBN v. Dinnah (2010) 17 NWLR (pt. 1221) pg. 125 at 167; Balogun v. University of Abuja (2002) 19 NWLR (pt. 783) pg. 42 at 55-54. 

 

28. That in Dr. Oloruntoba-Oju v. Prof. Abdul-Raheem 2009 Vol. 26 WRN PG 1 At 49, Adekaye, JSC said:

Where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made thereunder, it is said to be a contract protected by statute or in other words, employment with statutory flavour.

See also Kwara State Judicial Service Commission v. Tolani (SC) 2020 All FWLR pt. 1025 pg. 480 at 4.

 

29. The Claimant went on that employee whose employment enjoys statutory flavour can only be validly dismissed from his employment if and only if the laid down procedure for dismissal as stipulated in the statute is strictly complied with. See Attorney general Kwara State v. Abolaji (2009) 7 NWLR pt. 1139 PG 199 At 220; University of Ilorin v. Abe (2003) FWLR PT 164 PG 267 AT 278. See also Psychiatric Hospital Management Board v. Edosa 2001 5 NWLR PT 707 PG 612 Ratio 1 & 2; Federal medical center, Ido-Ekiti v. Alabi 2011, Vol. 18 WRN PG 80 Ratio 7 AF PG 122; Bauchi State Judicial service commission v. Danjuma 2017 7 NWLR PT 1565 PG 432 AT 455-456; Comptroller General of Customs v. Gusau 2017 All FWLR PT 1025 PG 480, Ratio 8. That the question which has to be resolved under this issue therefore is whether or not the defendants complied strictly with the procedure spelt out in the Delta State University law for dismissing an academic staff in the dismissal of the claimant; that to answer to this question, the relevant section in the Delta State University law dealing with dismissal of an academic staff vis-à-vis the facts before this Court needs to be examined.

 

30. To the claimant, section 44 (1) & (2) of the Delta State University law deal (sic) with the removal and discipline of academic staff; that to kick-start the removal of academic, administrative or technical staff from office on grounds of misconduct or inability to perform the functions of his office, the Governing Council shall (which is mandatory) give notice of those reasons to the person in question that in paragraph 22(A) of his amended statement of facts (sic) as well as paragraph 23 (A) of his additional statement on oath, the claimant stated clearly that he was not issued with any notice of the alleged misconduct committed by him by the 2nd defendant (The Governing Council) as required by law; that both DW1 and DW2 admitted this fact under cross examination. So the first requirement stipulated by section 44 (1) (a) of the law was not satisfied or met by the defendants.

 

31. That section 44 (1) (a) is in pari-materia with section 17 (1) (a) of the University of Lagos Act, 1967; that in Eperokun v. University of Lagos (1986) 4 NWLR PT 34 PG 162 where the Appellant’s appointment (who was a professor in the University of Lagos) was purportedly terminated without first serving him Notice of the reason(s) for his termination as stipulated in section 17 (i) (a) of the University of Lagos Act, the Supreme Court nullified the termination that at pages 108 and 109 of the Law Report, Obaseki, JSC said:

Where, therefore, it appears to the Council that there are reasons for believing that a member of academic staff, e.g. a professor or of administrative staff, the Registrar should be removed as is evident from the facts of this case, the Council cannot proceed to remove him by terminating his appointment by instrument in writing complying with paragraphs (a), (b) (i) and (ii) and (c) of subsection (1) of section 17 of the University of Lagos Act 1967. It cannot be silent on the misconduct and use it as a ground for removing him. Section 17 (1) of the Act makes it mandatory on the Council to give notice of those reasons to the person in question. Thus, failure to give reasons for the termination when there are circumstances loudly proclaiming the reasons affords no sanctuary.

See also Olaniyan v. University of Lagos 2004, vol. 15 WRN PG 44 Ratio 12 PAGES 90-91.

 

32. The claimant continued that over the years, the Courts in Nigeria have consistently and repeatedly relied on the failure by various governing council of tertiary institutions to serve the notice of misconduct on their affected academic or senior staff as well as afford them the opportunity of making representation before the Governing Council before proceeding to discipline them as contained in the laws setting up the various tertiary institutions which are all drafted in the same manner as in section 44 (1) of the Delta State University Law to quash the purported termination of their employment and restore them to their various positions. See Adeniyi v. Governing Council of Yobe College of technology, 1993, 6 NWLR PT. 300, PG 426. See also Saibu v. Kwara State Polytechnic Ilorin 2009 Vol 27 WRN PG 120 AT 157-158; Kwara State Polytechnic Ilorin v. Saliu 2012 Vol 41 WRN PG 26 AT 76: Olaniyan v. UNILAG 2004 vol 15 WRN PG 44. That on this ground alone, the purported dismissal of the claimant ought to be quashed, nullified/invalidated because in employment with statutory flavour, failure to observe one or any of the steps that ought to be taken, as stipulated in the law, renders the dismissal invalid. See University of Ilorin v. Prof. Abe (2003) FWLR PT 164 PG 267 AT 283.

 

33. That the Courts have stated repeatedly that there must be strict compliance with the procedure for dismissing an employee whose employment enjoys statutory flavour and that the doctrine of Substantial Compliance (emphasis the claimant’s) cannot be invoked at all to salvage the situation where there is not total/full compliance with the laid down procedure. See The Attorney General, Kwara State v. Abolaji 2009 7 NWLR PT 1139 PG 199 AT 220-221. See also EFCC v. Olowonihi 2020 vol 47 WRN PG 66 AT III;   Iderima v. River(sic) State Civil Service Commission 2005 All FWLR PT 285 PG 431 AT 450 OR 2005 16 NWLR PT. 951 PG 378.

 

34. The claimant went on that having regard to section 44 (1) (B), he pleaded in paragraph 22 (b) of his Amended Statement of Fact (sic) as well as paragraph 23 (b) of his Additional Statement on Oath that he was not afforded the opportunity of appearing before the Governing Council to defend himself before he was purportedly dismissed as required by the law. That DW1 and DW2 admitted this fact under cross-examination; that in paragraph 26 of their Amended Statement of Defence which is produced in paragraphs 32 and 33 of the statement on oath of DW 1 and DW2 respectively wherein they stated that the 2nd defendant only receiving and considers reports and recommendations from the senior staff Disciplinary Committee and other established committees and is not saddled with the responsibility of taking evidence from erring staff”. (emphasis the claimant’s).

 

35. The claimant added that not having authorized the conduct of the investigation of allegations of misconduct against the claimant as stipulated in section 44 (1) (c) of the law and not having seen the report of such an investigation, the Governing Council ought to have accorded the claimant the opportunity of appearing before it and hear from him before relying on the alleged recommendation of the Senior Staff Disciplinary Committee to dismiss him. See University of Nigeria Teaching Hospital Management Board v. Nnoli (1998) 8 NWLR (pt. 636) PG 376 AT 404- 405; University of Uyo v. Essel (2006) All FWLR pt. 315 PG 80 AT 105.

 

36. That section 44 of the Delta State University Law is in Pari-materia with section 15(1) of the University of Ilorin Act Cap 455 Laws of the Federation of Nigeria 1990; that in Dr. Oloruntoba-Oju v. Prof. Abdul-Raheem 2009 Vol. 26 WRN PG 1 At 58 where some academic/senior staff of the University of Ilorin were purportedly dismissed without being afforded  the opportunity of appearing before the Governing Council of the University  to make their representations as stipulated in section 15(1) (b) of the University Law, which is similar to section 44 (1) (b) of the Delta State University Law, the Supreme Court quashed the dismissed and reinstated the affected staff to their various positions. See also Federal University of Technology v. Osemenam 2011 vol 31 WRN PG 148 Ratio 9 AT 178-179. That the defendants failed to comply with section 44 (1) (b) of the law, the result of which renders the purported dismissal of the claimant ultra-vires, null and void.

 

37. Regarding section 44 (1) (c) on Constitution of a Joint Committee of the Council and Senate to investigate the matter, the claimant argued that he pleaded in paragraph 22 (c) of his Amended Statement of Facts as well as paragraph 23 (c) of his Additional Statement on Oath that because he was not issued with any notice of alleged misconduct by the Governing Council and because he did not appear before the Council,  he had no opportunity of requesting for a Joint committee of the council and a Joint Committee of the 1st defendant to investigate the allegation made  against him and for such Committee to report to the Council as stipulated by the law. That the defendant did not deny this fact as there is no evidence before this Court that the Governing Council constituted any ad-hoc investigative panel comprising of its members as well as members of the University Senate to investigate allegations of misconduct against the claimant before he was dismissed.

 

38.  It is the claimant’s contention that the SSDC which investigated allegations of misconduct against him was not the ad-hoc joint investigative committee provided for in section 44 (1) (c) of the law as stated by the claimant in paragraph 22 (E) of his Additional Statement of Facts as well as paragraph 23 (E) of his additional statement on oath, both of which have not been countered by the defendants in this proceeding. That the SSDC could not have qualified as the investigative panel envisaged by  section 44 (1) (c) because the SSDC is a standing committee that has been in existence long before the claimant’s matter came before it ( see paragraph 18 (a) of the Amended Statement of Defence), whereas the Committee envisaged by section 44 (1) (c) is an ad-hoc one that comes into existence after the fulfillment of the requirements of section 44 (1) (a) & (b); that the investigative Committee provided for in section 44 (1) (c) of the law is constituted upon the request of either the claimant or three members of the Council but the SSDC was not constituted upon the request of the claimant or three members of the Council; that the setting up of the investigative Committee provided for in section 44 (1) (c) has to be in within one month from the date a Notice is issued in accordance with section 44 (1) (a) but the SSDC which the claimant appeared before it. That the composition of the SSDC did not tally with the composition of the investigative panel provided for in section 44 (1) (c) by the law; that there is no evidence before this Court that the composition of the SSDC comprised of Council and Senate members only; that the pleading in paragraph 18 (a) of the Amended Statement of Defence clearly shows that the composition of the SSDC included non Council and Senate members contrary to what is stipulated in section 44 (1) (c) of the law.

 

39. That compliance with section 44 (1) (c) of the law is predicated on the observance of section 44 (1) (c) of the law is predicated on the observance of section 44 (1) (a) & (b) of the law because the Governing Council cannot authorize the setting up of a joint Committee of the Council and the Senate to investigate allegations of misconduct against any staff when such a staff had not been previously issued with a Notice in accordance with section 44 (1) (a) and had not been allowed to make representation to the Council. That once section 44 (1) (a) is violated, the entire procedure stipulated in section 44 (1) (a) to (c) and 44 (2) of the law will be incapable of being observed or complied with; that that is what has happened in this case as the defendant did not comply with the provision of section 44 (1) (a) to (c) of the law.

 

40. That by the provision of section 44 (2) of the law, upon receipt and consideration of the Report of the investigation Committee set up by the Council, if satisfied that the person investigated should be removed from office, then the Council may do so; that from the evidence of DW2 before this Court, the SSDC investigation Report concerning the claimant ended up in the office of the Vice Chancellor; that it did not get to the Governing Council. That what got to the Governing Council are recommendations allegedly made by the SSDC to the Vice Chancellor sifted from the alleged report and not the SSDC report of its investigations in respect of the claimant’s case; that the Governing Council was therefore wrong to have acted/approved the dismissal of the claimant based on recommendation and not the Report of the SSDC as there is nothing in section 44 (2) of the law which authorizes or empowers the 2nd defendant to approve the dismissal of any academic staff, including the claimant, based on recommendations received by it from the SSDC. That in fact, without any investigation Report (not recommendations extracted from such report) made available to it, the Governing Council will lack the power to dismiss any staff under section 44 (2) of the law, unless such a staff admits his guilt when he appears before the Governing Council pursuant to section 44 (1) (b), thus rendering it unnecessary to constitute an investigative Committee under section 44 (1) (c) of the law.

 

41. That the sum total of the submission made is that the defendants completely abandoned the procedure stipulated in their own law for dismissing an erring staff and adopted a procedure not contained in their law in dismissing the claimant; that they also failed to comply with chapter 8 section 7 (vi) of Exhibit A2 (their Senior Staff Conditions of Service) in their determination to dismiss the claimant at all cost; that the section states that: 

An employee shall not be dismissed in accordance with this regulation until:

(a) He has been told in writing the grounds on which he is being considered for dismissal.

That under cross examination, DW1 stated that no such letter referred to in Exhibit A2 was served on the claimant before he was dismissed. The claimant’s poser is whether this Court should therefore allow the purported dismissal of the claimant to remain having regard to the total violation of the procedure set out in the law and the defendants’ Rules for dismissing an academic staff. See Okoroafor v. Minister of Internal Affairs (2004) All FWLR (Pt. 209) 1108 at 1114-1115; NBTE v. Anyanwu (2005) FWLR (Pt. 265) 1266 at 1284.

 

42. The claimant continued that in this proceedings, the defendants have made strenuous effort to convince the Court that he was indeed guilty of various acts of misconduct which were allegedly proved against the claimant before the SSDC; that their pleadings and statements on oath concentrated largely on the allegations, facts and proof of the ground upon which the claimant was purportedly dismissed, while glossing over compliance with the procedure embarked upon for his dismissal vis a vis section 44 of the law; that in paragraphs 19, 20, 21, 25, 26 and 28 of the Amended Statement of Defence which are reproduced in the statements on oath of their witnesses, the Defendants stated that “proper procedure” was strictly followed in dismissing the claimant; that this “proper procedure” referred to by them, was making him appear before an ad-hoc investigative Committee which allegedly produced a report that was not made available to him, followed by query issued to him upon the instruction of the Vice Chancellor (not the Governing Council) and subsequent appearance before the SSDC, which allegedly made the recommendation to the Governing Council (through the Vice Chancellor) that formed the bases upon which the claimant was dismissed.  That the question now is: which section is this procedure, that is, appearance before the investigative Committees followed by a dismissal by the Governing Council based only on the recommendation(s) of the Investigative Committee(s) without affording the Senior Staff the opportunity of making representation direct to or before the Governing Council, provided for in the Delta State University Law? (Emphasis the claimant’s). That there is no such provision in the law.

 

43. It is submitted by the claimant that the defendants jettisoned the clear and unambiguous provision of section 44 of the Delta State University Law to adopt a procedure created by them which has no backing whatsoever in the law, to adopt a procedure created by them which has no backing whatsoever in the law, to dismiss the claimant; that while the claimant pleaded in paragraph 22 of his Amended Statement of Facts ( with particulars) as well as in his Additional Statement on Oath that his purported dismissal did not comply with the Delta State University Law, the defendants, in respond, did not plead and prove before the Court how the procedure adopted by them in dismissing the claimant complied with the law. That no matter how obvious the reason(s) for dismissing the claimant may be, or no matter how allegedly successful they may have established the grounds of his dismissal before the Court, it is not an excuse for not complying strictly with the laid down procedure spelt out in the law because in cases of employment with statutory flavour, the focus is on whether the laid down procedure and the rules of fair hearing were observed and not the justification before the Court of the grounds for dismissing an erring staff, as the Court is not another venue to re-open and retry the employee in respect of the allegations for which he was dismissed; that the concern of the Court is compliance strictly with the procedure laid down for dismissal and observance of the rules relating to fair hearing. See University of Nigeria Teaching Hospital Management Board v. Nnoli 1992 6 NWLR (Pt. 200) 752 at 772.

 

44. To the claimant, the defendant cannot, in law, take refuge under Exhibit A2 to legitimize the procedure they adopted in the purported dismissal of the claimant because Exhibit A2 came into existence as a result of the powers conferred on the defendants to make it by the Delta State University Law; that it ought to be complimentary to the provisions of the law and not antagonistic or contradicting to it as the law gave birth to it. That , as stated clearly in section 63 of the law, “in the event of any Statute or Regulations shall to the extent of that inconsistent be void.” See Olaniyan v. University of Lagos 2004 vol 15 WRN PG 44 AT 82. See also NNPC v. Famfa Oil Limited 2012 17 NWLR PART 1328 PAGE 148 RATIO 10; Governor of Oyo State v. Folayan 1995 8 NWLR PT 413 PG 299 RATIO 9 AT PAGE 327; Mobil Producing Nigeria Limited v. Johnson 2019 ALL FWLR PT 975 PG 811 RATIO 5 or 2018 VOL. 47 WRN PG 79 RATIO 7 AT PAGE 116 & 135. That the defendants cannot therefore legally adopt a procedure in Exhibit A2 purporting to dismiss the claimant, which runs contrary to or does not align with section 44 of the law; that such purported dismissal will be invalid, null and void.

 

45.  It is submitted by the claimant that not having complied with the laid down procedure, the claimant’s dismissal by the defendants is ultra vires, invalid, null and void; that in the eyes of the law, the claimant’s employment is still subsisting and is therefore entitled to re-instatement with all his salaries/emoluments paid  from the time of the purposed dismissal. See University of Nigeria Teaching Hospital Management Board v. Nnoli (1994)  8 NWLR (pt. 363) 407. See also Omidiora v. Federal Civil Service Commission (2007) 14 NWLR (pt. 1053) 17 Ratio 1, 3 & 4; Balogun v. University of Abuja (2002) 13 NWLR (pt. 783) 42 at 61-62; Kwara State Civil Service (sic) v. Abiodun (2010)  WRN 5 ar 0-105 (sic); CBN v.  Igwillo (2007) 25 WRN 1 at 26; Alhassan v. A. B. U. Zaria (2011) 11 NWLR (pt. 1259) 417 at 466-467; Bauchi State Judicial Service Commission v. Danjuma (2017) 7 NWLR (pt. 1565) 432 Ratio 3. That the common law principle of not foisting a willing employee on an unwilling employer does not apply to employment with statute (sic) flavour. See Balogun v. University of Abuja (2002) 13 NWLR (pt. 783) 42 at 62. The claimant then urged the court to resdue issue 1 in favour of the claimant.

 

46.  Regarding issue 2, the claimant submitted that the procedure adopted by the defendants leading to the purported dismissal of the claimant is in breach of his right to fair hearing as enshrined in section 36 of the 1999 constitution (as amended); that  the claimant’s compliant is hinged on seven (7) grounds, to wit: Firstly, that the compassion of the governing council which tool the decision to dismiss the claimant was in breach of the Rules of National Justice; that nine members of the SSDC that  investigated the allegations of misconduct against the claimant as well as the chairman of the Ad-hoc investigation  committed Prof. Austin Anigala also sat as members of the governing council that took the decision to dismiss the claimant; that they were thus both investigators and judges in the same matter. See University of Uyo v. Essel (2006) All FWLR (pt. 315) 80 Ratio 7 at 142-142. That these SSDC members as well as the chairman of the ad- hoc investigation committee w2ho also joined other members of the governing Council in taking the decision to dismiss the claimant already had for- knowledge of the matter, having taken decision against the claimant at the investigation level which they merely needed to defend/indorse at the governing Council meeting, that the claimant stood no chance of getting fair hearing when the governing Council considered his case. See Dogbekun v. Omoloye (1990) 5 NWLR (PT153) 679 at 688; Osawe v. Asuwen (1992) 4 NWLR (PT.235) 291 at 301.

 

47. That the excuse given for the dual roles played by these SSDC members as can be gleaned from paragraphs 17 and 18 (a) of their amended statement of defence which are also reproduced in the statements on oath of their witnesses, is that they found themselves in these roles by virtue of statutory fiat; that no such statute(s) which made it compulsory for these governing Council Members also function as SSDC Members has been brought to the attention of the Court; that even if such statute(s) exist, it is submitted that the provisions therein which tend to violate the provisions in the constitution dealing with fair hearing will be invalid, null and void to the extent of the inconsistency as the constitution is the grundnorm from which all other laws/statutes derive powers/authority. See governor of Ekiti State & others v. Olubunmo (2017) 3 NWLR (pt. 1551) 1 Ratio 5 & 6; Agi v. PDP (2017) 17 NWLR (pt. 1595) 386 Ratio 12; NCP v. National Assembly (2016) 1 NWLR (pt. 1492) 1 Ratio 2 & 4. See also Legal Practitioners Disciplinary Committee v. dnof Gani Fawehinmi (1985) 2 NWLR (pt. 7) 300;Madu v. Mbakwe (2008) 10 NWLR (pt. 1095) 293 at 322 and Bellview Airlines Ltd v. Carter Harris (proprietary) Ltd (2017) All FWLR (pt. 869) 923 at 968.

 

48.   That the contention by the defendants that the governing council as well as their investigative Committees do not and cannot be expected to function like a court of law in the manner they carry out their assignments, as stated in paragraph 20 of their Additional Statement of Defence, is not   justification for not observing the Rules of Natural Justice in dealing with cases that come before them. That all administrative bodies including domestic panels or committees such as the 2nd Defendant and it investigative committees before which the claimant appeared in this case, must observe the rules of natural justice and comply with section 36 of the constitution in dealing with disciplinary matter that are before them since they have to decide between an allegation and a defence. That in so far as their findings, recommendations and decisions are liked to affect/jeopardize the career, livelihood as well as stigmatize the employees  who come before them, it behaves them to ensure that they carry out their assignment  in conformity with the rules of natural justice and fairness. See Judicial Servicce Commission of Cross River State v. Young (2013) 11 NWLR (pt. 1364)1 at 22; Adigun v. Attorney General of Oyo State (1987) 1 NWLR (pt. 53) 678 at 708; Saibu v. Kwara State Polytechnic Ilorin (2009) 27 WRN 120 at 162-163. See also Olugeagba & ors v. Abdul-Raheem (2010) 189 LRCN 160 at 225; Adewunmi v. Nigeria Eagle Flour-Miles (2014) 14 NWLR (pt. 1428) 443 Ratio 2 & 3 at pg. 460; University of Uyo v. Essel (2006) All FWLR (pt. 315) 80 Ration 8; Civil Service Commission Imo State v. Anuforom (2007) All FWLR (pt. 390) 1551 Ratio 5 at 1554.

 

49. Secondly, that the failure by the governing council to afford the claimant the opportunity to make representation directly to it before dismissing him as stipulated in section 44 (1) (b) of the Delta State University Law amounted to  breach of his right to fair hearing ; that since the governing council did not carry out any investigation in the matte as stipulated in section 44 (1) (c) of the law justice demands that before acting on the recommend(s) from the Vice Chancellor or SSDC, it should see or hear from the claimant especially as no copies of the investigation reports were given to the claimant. See University of Nig. Teaching Hospital Management Board v. Nnoli (supra) and University of Uyo v. Essel (supra).

 

50.  Thirdly, that the procedure adopted by the defendants whereby the allegations against the claimant were heard by both the Ad-hoc investigation committee and the senior staff Disciplinary Committee followed, the governing council, did not accord  with fair hearing; that fair hearing implies that the body that hears the matter will consider all representation made and then come to a decision. See Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt. 106) 652 at 714 and Ozoana v. Police Service Commission (1995) 4 NWLR (pt. 391) 629 at 638. That  this is the wisdom behind the insertion of section 44 (1) & (2) in the Delta State University Law, which confers on the governing council the power to notify employees accused of misconduct of such misconduct; obtain their response/representations; carry out investigations before taking the decision to dismiss such staff. That  section 44 (1) & (2) of the  law is intended to ensure fair hearing to any staff accused of misconduct but for reasons not made  known to  this court. The defendants chose to ignore it, this amounting to breach of fair hearing of the claimant.

 

51. Fourthly, that the presence of DW1 who sat with other members of the Ad-hoc investigation Committee as well as the SSDC was such as not likely to guarantee the impartiality of the committees  and fairness to the claimant; that  DW1 was the  one who made allegations of refusal by the claimant to give a hand-over note to him upon taking over as HOD from the claimant; that DW1 also complained to the management of the 1st  defendant  University that the claimant mutilated Exhibits DW1/1, DW1/2 and DW1/3. That in addition, all the students who allegedly wrote petitions against the claimant of various allegations including extortion of money and sexual harassment routed their petitions through DW1 to the Vice Chancellor as confirmed by DW2 under cross examination; that DW1 also contacted the claimant’s accusers and made all arrangements that enabled them appear  before the SSDC to testify against the claimants; that yet DW1 sat with Committee members  in hearing the case against the claimant. That the presence of  DW1 in these committees, whether as  a member or as an observer, would create substantial doubt in the fairness of their investigative works; “that seeing their HOD on the aHigh Table”, sitting  with other members of these committees and being the one who made arrangement for them to come and testify before the committee would instill fear in the minds of the students who testified before the committees; that they had to testify before the committee in line with that they had discussed at their department that even  if they didn’t (sic) want to indict the claimant, the presence of the HOD made it inevitable for the students to do so; that therefore even if the presence  of DW1 in these Committees was just as “as observer”, it had negative/deleterious effect on the claimant. That justice must not only be done, it must be seen to be done. That a neutral fair minded person watching the proceedings before these committees and knowing the prior role played by DW1 who himself was an accuser in the allegations against the claimant would leave with the impression that justice had not been done to the claimant. See Shell Petroleum Dev. Co. Ltd v. Olarewaju (2008) 18 NWLR (pt. 1118) 1 Ration 3 & 4 pg. 23.

 

52. That in an attempt to water down the influence/effect of the  presence of DW1 in both committees, DW1 and DW2 stated  under cross examination that the presence of DW1 among members of the two investigation committees was just as “an observer” but the defendants did not , at any time plead the fact that DW1 was  merely “an observer” in the committees that this fact came out under cross examination and therefore goes to no issue, as the parties  did not join issue on the  status of DW1  in these committees.  That the evidence of DW1 and DW1 elicited during cross examination to the effect that DW1 participated in the two committees as an observer should therefore be discountenanced. See Ojoh v. Kamalu (2006) 136 LRCN 1130 Ratio 2; Ita v. Ekpenyong (2001) 9 WRN 149 Ratio 10.

 

53.  Fifthly, the claimant contends that it is a grave travesty of justice for the governing council to have acted on Exhibit AAA4(purported Recommendations of the SSDC) without demanding for and reading through the investigative Report of the SSDC itself to enable it know how the proceeding before the SSDC was conducted, those who testified against the claimant; whether the evidence against the claimant at the SSDC was strong enough to justify the recommendation made by the SSDC etc. that the SSDC report according to DW2, ended up in the Vice Chancellor’s office and never got to the Governing  Council as contained in Exhibit AAA14 is their  recommendation as extracted  from their report to their Vice-Chancellor. That a personal of Exhibit AAA14 shows that it was signed by the Vice Chancellor at page F17 of the document, purporting to be the recommendation of the SSDC; that no member of the SSDC signed the document and the Vice Chancellor was neither a member of the SSDC nor did he participate in their investigative work; that the Vice Chancellor therefore cannot vouch for the facts contained in Exhibit AAA14.

 

54.  That the Vice Chancellor submitted the document to the governing council to act as the truth of what the SSDC di; that Exhibit AAA14  therefore qualifies as documentary hearing evidence under section 37 of the Evidence Act, not being the product of those who carried out the investigations against the claimant and therefore unreliable and worthless. See Metuh v. FRN (2020) 7 NWLR (pt. 1723) 325 Ratio 3; Pastor Ize-Iyamu v. INEC (2018) 9 NWLR (pt. 1625) 507 Ratio 26, 27 & 28; Abdulmalik v. Tijjani (2012) 12 NWLR (pt. 1355) 461 at 474-475. That it is trite lwa that whoever signs a document is the another of the document. See Awojolu v. Odeyemi  (2013) 14 WRN 528 Ratio 20; Monier Construction Company Nig. Ltd v. Coseda Nig. Ltd (2018)  11 NWLR (pt. 1629) 47 Ratio 1. That Exhibit AAA14 is not the product of the SSDC but of the Vice Chancellor and it is misleading to call it recommendations from the SSDC when no member of that body authenticated the  document with his signature; that the dismissal of the claimant based on Hearsay document ought to be quashed; it is  respectfully  submitted.

 

55.  Sixthly, that the claimant was not affanded adequate opportunity to prepare for his defence both at the Ad-hoc investigation committee and at the SSDC; that  the claimant was invited to appear before the Ad-hoc investigation Committee headed by Prof. Austin Anigala vide Exhibit A13; that as stated by the claimant in paragraph 15 (B) of his Amended Statement of facts as well as in paragraph 16 (A) of his additional statement on oath, the name(s) of the final year student(s) who allegedly made the complaints of sexual  harassment against the claimant; that the nature of the  complaint whether  written or oral; the date(s); place(s) and time when the alleged sexual harassment was/were made as well as the alleged extortion of money for research works, were not stated in Exhibit A13 to enable the claimant know the case he was going to meet and thus ifrepare his defence to gave allegations against him. That the situation at the SSDC was even worse; that as stated by the claimant in paragraph 18 (A) of his pleading and 19(a) of his Additional Oath, the invitation letter Exhibit A14 is nebulous as it failed to  disclose the specific acts of “gross misconduct” alleged committed by the claimant to enable him know the case he was  to meet as well as afford him the opportunity to prepare his defence. See University of Nigeria Teaching Hospital Mgt. Board v. Nnoli (supra).

 

56.  Seventhly, the claimant argued that the conduct of the proceedings at both the Ad-hoc investigation committee as well as  at the SSDC were in gross violation of the claimant’s right to fair hearing as pleaded in paragraphs 15(B) & (C) and 18 (B), (C) & (E) of his Amended Statement on oath as well as paragraphs 15, 16(b), (c) and 19 (B), (C) of the Claimant’s additional statement on oath on grounds that no copy of the alleged petitions said to have been written against the claimant was given to  the claimant before or when he appeared before the commissions to enable him know the allegations against  him and prepare his response to them; that  the identity of the witnesses who allegedly testified against the claimant  were hidden from him; hidden from the governing council and even hidden from this Honourable Court. That according to DW2, under cross examination, eleven (11) students testified before the SSDC but only one (1) student’s name – Orele Jessica Ufuoma – is disclosed by the defendants in paragraph  16 of their Amended Statement of Defence. That, who were the sic female students who testified against the claimant, as pleaded in paragraph 17 (b) of their Amended Statement of Defence and who were the male students who testified against the claimant? That the identity of these witnesses are withheld by the Defendnts allegedly for security reasons, as pleaded on paragraph 17(f) & 17(e) of the Amended Statement of Defence.

 

57. That when there unidentifiable students testified before the two committees, they did it behind the claimant, as pleaded in paragraphs 15 (b) & (c) and 18 (b) & (c) of the Amended Statement of Facts which are produced in paragraphs 16 (b) & (e) (sic) and  19(b) & (c) of his Additional Statement on oath; that no where in the  entire Amended Statement of Defence or the  Statement on Oath of their witnesses did the Defendants plead or state that witnesses who testified against  the claimant did so in his presence and that the claimant had opportunity to cross examine them or did in fact cross examine them. That in addition, the claimant’s evidence to the effect that his accusers testified behind him without the opportunity to cross examine them was not taken up with him when he was cross examined by learned counsel to the defendants; that the nearest response that can be gleaned from  their pleading is in paragraphs 17 (b) & (c) of their Amended Statement of Defence where they stated that six female ISLT students testified against the claimant  at the SSDC  and that “the claimant was confronted face to face by one of the female students. “That assuming (though vehemently denied) that this pleading is true, it means that the other five female students and indeed, the 10 other students who allegedly testified against the claimant at the SSDC, did so behind the claimant; that could this be might? That in Judicial Service Commission of Cross River State v. Young (2013) 11 NWLR (pt. 1364) 1 at 25 the Supreme Court said:

There is the further need to emphasize that the concept of fair hearing is not one that allows a staggered process within which a party may be give fair hearing on certain days, while evidence is taken behind his back on other days and back to being put in the picture subsequently, a situation reminiscent of a patch work.

 

58.  That the investigation Reports of the two committees which would have cleared the air as to whether the accusers/witness testified behind the claimant or not was kept away from this court by the Defendants; that in the circumstances, it is submitted that the claimant’s pleading/evidence not being present when his accusers testified against him before the two committees had not been specifically/effectively demed by the Defendants, going by the rules of pleadings; that a general denial in a  statement of defence of specific facts pleaded in a statement of claim has been held, over  the years, not to be effective denial and therefore deemed to be an admission. See Nwadike v. Ibekwe (1987) 4 NWLR (pt 67) 718 at 741. See also Honika Sawmil (Nig) Ltd v. Hoff (1994) 2 NACR 46 at 57. That if the Court holds, as urged by the claimant upon the count to do, that those who testified against the claimant did so behind him, then it submitted that it is a fundamental breach of his right to fair hearing.  See Adewumi v. Nigerian Eagle Flour Mills (2014) 14 NWLR (pt. 1428) 443 at 458. See also Young v. Judicial Service Commission (2009) 17 WRN 5 at 62.

 

59.  The claimant continued that documents were received and used by the committees in arriving at their decisions behind the  claimants,  without avoiding him copies of the documents; that these documents include the alleged petitions written against the claimant; that allegedly mutilated/altered  examination scripts (Exhibit DW1/1,  DW1/2, DW1/3)  by the claimants as well as  the Report of the Ad-hoc investigation Committee which got to the SSDC through its chairman, Prof. Rose Aziza, according to DW2 under cross Examination; that the investigation conducted by the  two committees were not fair to the claimant. That in Attorney General of Kwara State v. Abolaji (20109) 7 NWLR (pt. 1139) 199 at 219, the Supreme Court said:

In order to be fair, therefore, “hearing” or “opportunity to be heard”, must encompass a party’s right

(a) To be present all through the proceedings, to hear all the evidence against him/her

(b)  To cross examine or otherwise confidant or contradict all the witnesses that testify against him

(c) To have read before him, all this documents tendered in evidence at the hearing

(d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence pre-judicial to him, except in recognized exceptions.

(e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence.

(f)   To give evidence by himself, call witnesses, if he likes, and make oral submission see Nwanegbo v. Oluwole (2001) 37 WRN 101; Dawodu  v. N.P.C (2000) 6 WRN 116; Durwode v. The State (2001) 7 WRN 50; (2000) 2 NWLR (pt. 675) 392.

 

60.  That the Reports of the investigation purportedly carried out by the two committees were not given to the claimant; see Savannah Bank of Nigeria Plc v. Farokun (2002) 1 NWLR (pt. 749) 544 at 560 and Sani v. FCDA (2007) 46 WRN 82 ar 114-115. That these Reports have remaind shrouded in secrecy till this  day as not only were they not given to the claimant but  they also never got to the governing council and were  not tendered in this proceeding to enable the court know how the proceedings were conducted by the committees; the  allegations against the claimant; the number of witnesses who testified and the nature of evidence given by them; whether or not the claimant was present  when the witnesses testified against him and therefore had the opportunity to cross examine them(or in fact cross examined them); the number of documents made available to the  committees made available to the committees including the various alleged petitions written against  the claimant and whether the claimant had access to these documents before or during the sittings of the committees; and finally, how the committees arrived  at their recommendation to the Vice Chancellor. See Sallman v. Kwara State Polytechnic (2006) 6 WRN 30 at 52-53. The claimant urged the court to invoke the provision of section 167(D) of the Evidence Act 2011 against the Defendants and to presume that had these Reports been made available in this proceeding, they would have been unfavourable to the Defendants. See Oloja v. Governor of Benue State (2016) 3 NWLR (pt. 1499) 217 Ratio 10.

 

61.  That if this court holds, as the claimant urges the court to do, that the dismissal of the claimant was fraught with breach of his right to fair hearing enshrined in the constitution on account of any or all of the above dated grounds, then the procedure adopted leading to his purported dismissal, to wit, investigations carried out by both the Ad-hoc investigation committee and the SSDC as well as Exhibit AA14 amount to nullity and ought to be quashed. See The Board of Management, Federal Medical Centre v. Abakume (2016) 10 NWLR (pt. 1521) 563 at 577; Citec Int. Estates Ltd v. Francis (2014) 19 WRN 70 at 94. See also Adigun v. Att. Gen. Oyo State (1987) 3 SC 250 at 309-310; State v. Onagorouwa (1992) 2 NWLR (pt. 221) 33 at. 56; Oyegun v. Comm. For Local Govt. (1992)2 NWLR (pt. 226) 661 at 685. The claimant then urged the court to resolve issue 2 in favour of the claimant and quash the purported dismissal of the claimant, being in violation of his right to fair hearing.

 

62. On issue 3, the claimant argued that in paragraphs 19 and 20 of his Amended Statement of Facts, which are reproduced in paragraphs 20 and 21 of his Additional Statement on Oath, claimant stated that he was worried by the unconstitutional manner by which the Defendants proceeded to discipline him which was in flagrant violation of the laid down procedure spelt out in the Delta State University Law and therefore instituted a suit at High Court of Justice Out-Jeremi, Delta State of Nigeria to stop them from proceeding with their action; that the Defendants were duly served with the Court processes and affidavit of service were tendered as exhibits in these proceedings. That in spite of the receipt of the Court processes, the Defendants proceeded with their actions which culminated in the dismissal of the claimant without first allowing the Court to adjudicate on the suit brought before it by the claimant. That the conduct of the Defendant in proceeding to dismiss the claimant after the receipt of the Court processes without first allowing the Court to hear/determine that suit, it is submitted, is contemptuous/disrespect of the Court. See Ezegbu v. First Africa Trust Bank (1992) 1 NWLR (Pt. 220) 669 at 724-725; The Registered Trustees of The Apostolic Church v. Ohowolemi (1990) 6 NWLR (Pt. 158) 514 at 537.

 

63. It is submitted by the claimant that where a party to a case (such as the Defendants in this case) choose to act disrespectfully by rendering it impossible for the Court to adjudicate in a matter before it and arrive at a decision one way or the other on the merit on the issue before it, or render any decision the Court may take nugatory/futile, the Court is not helpless but invokes the disciplinary powers to reverse such act(s). See Anyaoha v. Obioha (2014) 6 NWLR (Pt. 1404) 445 at 481-482; Ezegbu v. First African Trust Bank (supra). That the Defendants do not deny receipt of the Court processes referred to above before proceeding the claimant; that their defence as pleaded in paragraph 30 of their Amended Statement of Defence is that there was no Court order stopping them from doing so at the time they proceeded to dismiss the claimant but as stated by the Supreme Court in Ezegbu’s case (supra) “once a party is aware of a pending Court process and whether the Court has not given a specific injunction order, parties are bound to maintain the status quo pending the determination of the Court process”. The claimant urged the Court to uphold/preserve the sanctity/supremacy of the Court by quashing the dismissal of the claimant, so as to serve as a deterrent to others who may want to act in contempt of Court proceeding; and the Court is urged to resolve issue 3 in favour of the claimant against the defendants.

 

64. In conclusion, the claimant maintained that the decision to dismiss an academic staff of University is a very serious and grave matter which should not be handled maliciously as a tool for victimization, cruelty or tyranny; that the Courts have been urged to ensure that the rules of natural justice as enshrined in section 36 of the Constitution and strict observed; that the slightest default in the observance of the laid down procedure is not something that can be “managed” or tolerated under the doctrine of “substantial compliance” in employment with statutory flavour. See Federal University of Technology v. Osemenam (2011) 31 WRN 148 at 179-179. That the defendants not only failed to comply with the statutory procedure laid sown in Delta State University Law as well as the rules of natural justice in the purported dismissal of the claimant but did so in contempt of the Court and utter disregard of a pending action in Court. The claimant then urged the Court to grant the reliefs sought by the claimant in this case.

 

COURT’S DECISION

65.  I have carefully considered the processes and submissions of the parties. Counsel to the defendants had raised objection to the admissibility of Exhibits AA14, AAA14 and CW3 tendered by the claimant. Exhibit AA14 is the Notice of 97th meeting of 1st defendant’s Governing Council; while Exhibit AAA14 is the Recommendation(s) from the 1st defendant’s  SSDC  meeting on August  4th & 5th 2016 and Exhibit  CW3  is the Agenda and Papers of 97th meeting of 1st Defendant ‘s Council. Counsel to the defendants however, did not include his arguments/submissions on these exhibits in his final written addresses for consideration as ordered by the Court. I take it that Counsel to defendants waived his objections to the admissibility of the said documents. That notwithstanding, what should matter is the content of the document and its evidential value in terms of the question in issue.

 

66.  Given reliefs (a), (b), (c), and (d) of the claimant, the key parts of the claimant’s case are that his dismissal was not in compliance with section 44 of 1st defendant’s law and Conditions of Service and that it was in breach of his constitutional right to fair hearing. On whom lies the onus to prove wrongful termination of employment, the Apex Court stated in Zideeh v. Rivers State Civil Service Commission (2007) LPELR-3544 (SC) thus:

“…it has now been firmly established that when an employee complains that his employment has been wrongful terminated, he has the onus:

(a) To place before the Court the terms of the contract of employment and

(b) To prove in what manner the said terms were breached by the employer.

The law is that it is not the duty of the employer as a defendant in an action brought by an employee to prove any of these facts. See Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390 at 405 and Amodu v. Amodu (1990) 5 NWLR (Pt. 150) 356 at 370.

 

67. The claimant’s argument is that his employment enjoyed statutory flavour and as such his appointment and discipline are protected by statute or laid down regulations made pursuant to the provisions of the Delta State University, Abraka law Cap D47 vol 2 Laws of Delta State of Nigeria, 2008. See CBN v. Igwillo (supra); PHCN Plc v. Offeolo (supra); CBN v. Dinnah (supra) Balogun v. University of Abuja (supra); Dr.  Oloruntoba-Oju v. Prof Abdul-Raheem (supra); Attorney General Kwara State v. Abolaji (supra); University of Ilorin v. Abe (supra). That the purposed dismissal of the claimant ought to be quashed, nullified/invalidated because the defendants did not serve the Notice of misconduct on him; that he was not afforded the opportunity to make representation before the Governing Council; that a Joint Committee of the Council  and Senate was not constituted to investigate the matter; that the Governing Council of the 1st defendant University was wrong to have acted/approved his dismissal based on the recommendations of the SSDC and not the Report of the Joint Committee of the Senate and the Council of the 1st defendant  University as stipulated by section 44 of the Delta State University, Abraka law.

 

68. An employment is said to have statutory flavour when the appointment and termination are governed by statutory provisions because the contract of service incorporating the terms and conditions is contained in the provisions of a statute or regulations derived therefrom thereby making the employee with a legal status higher than the ordinary one of master and servant. See Oak Pensions Ltd & ors v. Olayinka (2017) LPELR-43207 (CA) and PHCN v. Offoelo (2012) LPELR-19717 (SC). That the claimant’s employment enjoys statutory flavor is a given having regards to Exhibit A2 made in line with the Delta State University, Abraka Law and Exhibit A1 (Offer of Appointment dated 19/7/2005); Exhibit A3 (Confirmation of Appointment dated 25/10/2007) and Exhibit A4 (Promotion dated 9/8/2011).

 

69. To the defendants, the dismissal of the claimant from the service of the 1st defendant was in compliance with chapter 8 section 7 (vi) (a) (b) & (c) of the Delta State University, Abraka Regulations governing the service  of senior staff (HATTIS 6-15 and  UASS 01-07) which is in pari  material with section 44 (1) & (2) of Delta State University law Cap D47, 2008 and made under it. That claimant’s responses (Exhibit A8 and A12) to the queries were adjudged by the Vice Chancellor as unsatisfactory and claimant was warned (Exhibit A11) and requested to appear before the SSDC to further defend himself which he did orally and in writing of the allegation of gross misconduct made against him (Exhibit A14). That claimant was also invited to appear before the Ad-hoc Committee which investigated allegations of sexual harassment against him (Exhibit A13) where he made oral and written representations; that it is beyond contention that the claimant was told in writing the ground on which he was considered for dismissal; and the defendants urged the Court to so hold.

 

70. Section 44 (1) & (2) of the Delta State University law deals with removal and discipline of academic staff. It states thus:

44 REMOVAL AND DISCIPLINE OF ACADEMIC STAFF

(1) If it appears to the council that there are reasons for believing that a person employed as senior member of the academic or administrative or professional or technical staff of the University other than the Vice-Chancellor should be removed from office or employment on the grounds of misconduct or of inability to perform the functions of his office or employment, the Council shall-

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

(b) Afford him an opportunity of making representation 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 from the date of the notice, to make arrangement-

(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.

(2) The Council if after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, may do so by an instrument in writing signed on the direction of the Council.

 

71. Chapter 8 section 7 (vi) (a), (b), and (c) of the 1st Defendant University Regulations states thus:

An employee shall not be dismissed in accordance with these regulations until:

a.      He has been told in writing the grounds on which he is been considered for dismissal

b.      He has been given an opportunity of submitting representation to the Vice-Chancellor through his head of department/unit

c.      The appropriate committee has  considered his representations and the recommendations (if any) of the head of department/unit

 

72. The defendants went ahead to chip in that by chapter 8 section 7 (vii) of the 1st defendant’s Regulations, “No notice or salary in lieu of notice shall be given to an employee dismissed under the provisions of these regulations but dismissals shall take effect from the date on which the employee considered is officially notified that he has been dismissed”.

 

73. I need to address chapter 8 section 7 (vii) of 1st defendant’s Regulation before I revert to claimant’s reliefs. The defendants’ stance that dismissal carries no benefit represents the old dispensation. In Kasali Olugbenga v. Access Bank Plc unreported suit No.  NICN/LA/430/2013, the judgment of which was delivered on December 3, 2015, this Court held as follows:

It used to be that dismissal in carrying with it infamy/ignominy deprives the dismissed employee from any benefit even if earned. See Abomedi v. NRC (1995) 1 NWLR (Pt. 372) 451 CA and Ante v. University of Calabar (2001) 3 NWLR (Pt. 700) 239 CA. However, today whether termination or dismissal, the employee is entitled to all earned salaries and emoluments. I alluded earlier to Underwater Eng. Co. Ltd v.  Dubefon where the Supreme Court held that an employee’s salary becomes due and his right to it is vested at the end of each month; hence, the employer cannot dismiss or terminate his employees employment with a retrospective effect with a view to denying him his vested  right to salary, and Udegbunam v. FCDA where the Supreme Court further  held that in a claim for wrongful termination, an employee can also claim for salaries, leave allowances, etc., earned  by the employee but not paid by the employer at the time of the termination. So despite the dismissal of the claimant by the defendant, he is still entitled to be paid all his earned salary and emolument.

 

74. And in Mr. Adewale Aina v. Wema Bank Plc & anor unreported suit No. NICN/LA/162/2012, the judgment of which was delivered on January 28, 2016, this Court also held that “whether dismissal is earned or not, the new dispensation is that all earnings of an employee prior to the dismissal must be paid by the employer to such and employee,” referring to Udegbunam v. FCDA (2003) 10 NWLR (Pt. 829) 487 SC and Underwater Eng. Co Ltd v.
Dubefon
(1995) 6 NWLR (Pt. 400) 156 SC. There is accordingly no doubt that if the claimant proves any earning due to her (or him) not paid by the defendant, she (he) would be entitled to a verdict from the Court in that regard. The question is therefore, whether the claimant had so proved the reliefs he prays for from the Court.

 

75. In paragraph 22 (A) of his amended statement of fact which is validated by paragraph 23 (A) of his sworn deposition, the claimant stated that contrary to section 44(1) (a) of the  defendant law, he was not issued with any notice of the alleged misconduct committed by him by the 2nd defendant as required by the law; that both DW1 and DW2 admitted this fact under cross examination; that the authorities are in concurrence that the Council cannot proceed to remove him by terminating his appointment without serving the Notice of Misconduct on him. See  Eperokun v. University of Lagos (supra); Adeniyi v. Governing Council of Yaba College of Technology (supra) see also Saibu v. Kwara State Polytechnic Ilorin (supra) and Kwara State Polytechnic v. Saliu (supra). That on this ground alone, the purported dismissal of the claimant ought to be quashed, nullified/invalidated because in employment with statutory flavour, failure to observe one or any of the steps ought to be taken, as stipulated in the law, renders the dismissal invalid. See University of Ilorin v. Prof Abe (supra).

 

76. The defendants however, maintained in line with chapter 8 section 7 (vi) (a) of the 1st defendant’s Regulations, that the defendants vide query letters, e.g. Exhibit A7 clearly detailed the allegations against the claimant;  that claimant’s responses vide Exhibit A8 and A12 to the queries were adjudged by the Vice Chancellor as unsatisfactory and claimant was warned vide Exhibit A11 and requested to appear before the SSDC to further defend himself; that the claimant did so orally and in writing see Exhibit A14. That claimant was also invited to appear before the Ad-hoc committee which investigated allegations of sexual harassment against him and he made oral and written representations. See Exhibit A13.

 

77. Exhibit A7 dated 28th June 2016 is a query titled: “Refusal to submit ISLT Examination Script” from 1st defendant’s Registrar to the claimant. In it, the claimant is required to show cause why disciplinary action should not be taken against him for refusal to submit ISLT students scripts, results and examination attendance in spite of several efforts by claimant’s Ag. Head of Department to retrieve the scripts from the claimant.

 

78. Exhibit A8 dated 29th June 2016 is claimant’s response to the query on refusal to submit ISLT Examination Script. In it, the claimant states that all the scripts of the ISLT courses he taught were duly submitted to the department and these scripts were stored amongst all other scripts in the Administrative office of the Department; that he was not able to retrieve the scripts in question because all the scripts previously stored in the Departmental Administrative Office were moved (relocated) out of the Administrative office.

 

79.  Exhibit A11 dated 12th July 2016 is the reaction of the Vice Chancellor of 1st defendant University to the claimant’s representations. The VC warned the claimant and directed him to submit the requested scripts, marking schemes, question papers and other related material to the ISLT course taught by claimant to the Deputy Vice Chancellor’s (Academic) office. It is in the said Exhibit A11 that the 1st defendant’s Registrar informed the claimant that “On Thursday, 16th June, 2016, documents were moved from an already congested Administrative office to a secured place in the laboratory in preparation for accreditation. On request by you (claimant) at about 12 noon on June 20, 2016, you were given access to all available documents in the Department”.

 

80.  The defendants would, notwithstanding the warning punishment meted out to the claimant, proceed in paragraph 14 of their amended statement of defence to “aver that due to the act of negligence and non-diligence by the claimant, 1st defendant set up an Ad Hoc Committee to ascertain the missing scripts and the allegation of sexual harassment made against the claimant by some female students. The “missing scripts” for which the claimant is again facing sanctions before Ad-hoc Committee after the warning punishment, are the ones the Deputy Registrar (Establishments) Mr. E. O. Egheneji stated in Exhibit A11 that “The trend had been that examination scripts, marking scheme and question papers are brought to the Administrative office and lodged/deposited amongst those already stored there”. From the perusal of the Court’s records in this suit these same issues would premeditatedly crop up for determination. All of this, in my contemplation, is reminiscent of double jeopardy.

 

81. In its ordinary usage, “double jeopardy” connotes the unlawful procedure of subjecting a person to a trial on two separate occasions for the same offence. See The Lexicon Webster Dictionary, 1980. Reprint, vol. 1 page 298. In law also, it connotes the act of being prosecuted or tried twice for substantially the same offence. See B. A. Garners’ Dictionary of Legal Usage, 2nd ed. 1995 page 292. See Nigerian Army v. Brig General Maude Aminu-Kano (2010) LPELR-2013 (SC); Karumi v. FRN (2016) LPELR – 40473 (CA) and Ali v. FRN (2016) LPELR-40472 (CA). The doctrine of double jeopardy prohibits a person  being tried or punished twice for the same offence with the same set of facts, and the principle is also enshrined as a fundamental right in Nigeria under section 36 (9) and (10) of the 1999 constitution. Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges and on the same facts, following a valid acquittal or conviction. See Wikipedia. See also PML (Nigeria) Limited v. Federal Republic of Nigeria (2017) LPELR-43480(sic); Abacha v. FRN (2014) LPELR-22014 (sic); Sunday v. State (2017) LPELR-42140 (CA) and Bashir v. FRN(2016) LPELR-40252 (CA).

 

82. Exhibit A14 dated 27 July 2016 is the defendants’ invitation of the claimant to appear before the Senior Staff Disciplinary Committee. It states thus:

I am directed to inform you that you have been invited to appear before the Senior Staff Disciplinary Committee to defend yourself in connection with allegation of facts of misconduct

 

Date: Thursday, 4th August and Friday, 5th August 2016

 

Time: 10.00 am prompt

 

Venue: Vice Chancellor’s Conference Room

 

You are expected to come along with twenty five copies of your written presentation or any other material that may assist the committee in its investigation.

 

Thanks

Clement O. Evankwaire

Principal Assistant Registrar (SATP)

For: Deputy Registrar (Establishment)

 

83. The claimant’s contention is that Exhibit A14 dated 27th July 2016 inviting him to appear before the SSDC on Thursday, 4th and Friday, 5th August 2016 at 10.00 am prompt in the Vice Chancellors Conference Room did not give notice of these reasons to the claimant; that same was in breach of section 44 (1) (a) of the Delta State University which states that:

… the Council shall- (a) give notice of those reasons to the person in question. (emphasis the judex).

The word “shall” connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law, that requirement must be met. The word ‘shall’ may have other meanings, for when used in a legislation, it may be capable of translating into a mandatory act, giving permission or direction. See Tabik Investment Limited & anor v. Guaranty Trust Bank Plc (2011) LPELR-3131 (SC) and Nnonye v. Anyichie & ors (2005) 2 NWLR (Part 910) page 623. The use of the word ‘shall’ in the case at hand, to my mind, conjures mandatoriness, the condition of which must be met and satisfied. The claimant’s notes in anticipation of what to meet at the SSDC meeting, as glibly argued by counsel to the defendants, is of no moment and does not discharge the defendants from the statutory obligation hoisted on them by the law. Non-compliance with the statutory provision renders the removal of the claimant ultra vires and void. I so hold.

 

84.  It seems that the term “sexual harassment” came to be used in the public only from the year 1975 onwards. See: “Combating Sexual Harassment at Work” (vol. 11. Conditions of Work Digest 1/1992, International Labour Organisation) 1960. Till then no term existed to describe what is now universally called “sexual harassment,” though the phenomenon itself was well known to women. See Ariane Reinhart, “Sexual Harassment: An ILO Survey of Company Practice” (ILO Publication) vii, which says that until the mid-1970s there was no commonly recognized term for “sexual harassment.” The learned author, Alok Bhasin, in the book, Law Relating to Sexual Harassment at Work (Second Edition, Eastern Book Company, Lucknow) 2015 said “sexual harassment may take diverse and varied forms. It is not limited to demands for sexual favours made under threats of diverse job consequences should the recipient refuse to comply with such demands. Victims of sexual harassment need not establish that they were not hired, were denied a promotion or were dismissed from service as a result of their refusal to participate in sexual activity… sexual harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting sexual harassment encompasses both the physical and the psychological. Milder forms of sexual harassment include verbal innuendos and affectionate gestures that are inappropriate in the circumstances, repeated social invitations for dinner or drinks, or unwelcome flirting where the implicit message is that sexual favours are anticipated or expected. Normal sexual or social activity may become sexual harassment where a power differential exists between the parties. In most cases of sexual harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually. Dutton v. British Columbia (Human Rights Tribunal), 2001 BCSC 1256: (2001) 41 CHRR D/10: (2001) 95 BCLR (3d) 186 (SC of British Columbia), per Madam Justice Boyd; <http://www.canlii.org>. Speaking generally, sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome.” For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility. Quebec (Commission des droits de la personne) v. Habachi, 1992 RJQ 1439 (Human Rights Tribunal, Canada). “Sexual harassment” is both sexual and unwelcome.  I(t) may be constituted by many or a single act and, broadly speaking, the intention of the harasser is not relevant.” Jones v. Armas Nominees (P) Ltd., 59 IR 61, per Judicial Registrar, Milane, quoted in Foster and Woolworths Ltd., (2000) NSWIRC 208; <http:/www.austlii.org>.

 

85. In Govt. of India v. Dhanu S. Rathod ILR 2002 KAR 4911: (2003) 1 CLR 32. (Kant DB), per Raveendran J held thus:

… if an employee is terminated for any misconduct, more so a teacher, on an allegation that he is guilty of a serious misconduct involving immoral sexual behavior with the student, it would stigmatize the employee forever. While the conduct of a teacher dealing with young students should undoubtedly be in loco parentis and exemplary and he cannot be permitted to continue as a teacher if there are serious allegations of immoral sexual misbehaviour and removed from service, a teacher should at least have an opportunity to show cause in the matter. In this case the CCS (CCA) Rules were applicable to the employees and in normal circumstances a regular enquiry under the rules had to be held before imposing a major punishment. A regular enquiry contemplates the employee being made known of the charges against him and given a reasonable opportunity to defend himself. A “reasonable opportunity” in the context of a regular enquiry would mean:

1.      An opportunity to the employee to deny the charges and establish his innocence. This, of course, presupposes that he is informed what the charges are and the allegations on which such charges are based.

2.      An opportunity to defend himself which includes opportunity to go through the documents produced by the Management, to call for the production of any documents from the Management which is in his favour or produce documents on which he relies, to cross-examine the witnesses of the Management and to examine himself and/or any witness in support of his defence.

3.      An opportunity to show cause against the finding recorded against him in an Enquiring Report if the enquiry is conducted by someone other than the disciplinary authority.

In ECIL v. B. Karunakar (1993) 4 SCC 727: 1993 SCC (L&S) 1184: AIR 1994 SC 1074, the Supreme Court was of the view that the alleged harasser was entitled to a hearing and to cross examine the witnesses produced by the University. See also JSCCRS v. Young (supra).

 

86. By Order 14 Rule 1 (1) (a), (b), (c), (d) and 2 (3) of NICN Rules 2017, where in an action before the Court, a claimant alleges sexual harassment at the workplace, the claimant or the claimant’s counsel may in the complaint, indicate whether the sexual harassment is:

(a) Physical conduct of a sexual nature: such as unwanted physical contact, ranging from touching to sexual assault and rape, strip search by or in the presence of the opposite sex, gesture that constitutes that alleged sexual harassment; and/or

(b) A verbal form of sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex related jokes or insults, or unwelcome graphic comments about a person’s body, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons, any document, material or exhibit in further support of the claim; and/or

(c) A non-verbal form of sexual harassment which includes unwelcome gestures, indecent exposures, and unwelcome display of sexually explicit pictures and objects; and/or

(d)  Quid pro quo harassment where an owner, employer, supervisor, member of management co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours.

2 (3) where in any of the claims or complaints arising under Rule 1 (1) of this Order, there is no satisfactory evidence entitling the claimant or the defendant to judgment of the Court, the Court may non-suit or dismiss the action.

 

87. The claimant contended that he was not afforded an opportunity to make representations before the Ad Hoc Committee and the SSDC by not cross examining his accusers and not given a hearing before the Joint Committee of the Council and the Senate. That this breached his right to fair hearing, and the law as stated in section 44 (1) (b) & (c) (i) & (ii) of the Delta State University Law and in paragraphs 15 (B) & (C) and 18 (b) & (c) of claimant’s Amended Statement of Facts and validated by paragraph 16 (A) (B) & (E) and 19 (b) & (c) of his additional deposition on oath. The defendants’ response in paragraph 17 (b) & (c) of their amended statement of defence and 19 (b) & (c) of their depositions that six female ISLT students testified against the claimant at the SSDC and that “they (six ISLT students) said the claimant made advances to them… the claimant was confronted face-to-face by one of the female students…” in my humble view, are depositions made by DW1 and DW2 and not the said students. The denial of the claimant to cross examine his accusers, in my view, breached his right to fair hearing. I so find. Same is a fundamental breach of his right to fair hearing. I so hold.

 

88. I acknowledge that fair hearing is about opportunity. But once the opportunity is not given, there can be no fair hearing. By Ziideeh v. RSCSC (2007) LPELR-3544 (SC); (2007) 3 NWLR (Pt. 1022) 554; (2007) 1-2 SC 1, “it is now firmly settled that in a statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing.” See also Mr. Syed Qamar Ahmed v. Ahmadu Bello University (ABU) Zaria & anor (2016) LPELR-40261 (CA). It cannot be said that opportunity was given where the content of what the employee is to answer is not disclosed to him/her. In Exhibit A13 dated 15 June 2016, the defendants invited the claimant to appear before an Ad-hoc Committee set up to investigate a complaint leveled against the claimant by a final year student of the “above mentioned Department” over allegations of sexual harassment and an appeal for a reduction in the amount for project supervision which she said claimant put at the sum of Sixty Thousand Naira (₦60, 000.00). In Exhibit A14 dated 27 July 2016, the defendants invited the claimant to appear before the Senior Disciplinary Committee to defend himself in connection with allegation of acts of gross misconduct. By Exhibit A16 dated 18th August 2016, the defendants proceeded to dismiss the claimant from the services of the University “on the following allegations” sexual harassment of some female students, extortion of money from claimant’s supervisees in the Department of Pharmacology and Therapeutics in the Institute of Science Laboratory Technology Programme; alteration and mutilation of results and insubordination to constituted authorities- refusing to submit past question papers, marking schemes, booklets/answer scripts and results of courses examined by the claimant. Finding the claimant guilty of infractions narrated in Exhibit A16 cannot be said that the defendants gave the claimant the fair hearing opportunity needed to defend himself in terms of allegations of sexual harassment made by a final year student, appeal for reduction of fee for project supervision and blank acts of gross misconduct. I so hold.

 

89. In the recent decision of this Court in Ebenezer Sunday Adetimiro v. The Attorney General of Lagos State & 2 ors unreported Suit No. NICN/LA/40/2016, the judgment of which was delivered on 27th May 2020, this Court held thus at paragraph 58.

In Mr. M.A. Chiroma v. Forte Oil Plc unreported Sit No. NICN/ABJ/165/2018, the judgment of which was delivered on 2 May 2019, this Court held at paragraph 38 thus:

…The defendant cannot charge the claimant for dereliction of duty and then turn around much later to say the charge include “allowance of perpetration of corrupt practice or corruption by others.” The defendant cannot charge the claimant for one infraction, ask him to respond to the infraction and then find him guilty of an infraction he did not ask the claimant to respond to. I so hold…

In like manner, the defendants cannot invite the claimant to answer the charge of absenting himself and then turn around and try him for recycling receipts. This fundamentally goes against the requirement of fair hearing.

See Mr. Musa Onoja v. Corporate Affairs Commission unreported Suit No. NICN/ABJ/191/2018, the judgment of which was delivered on July 8, 2020.

 

90. In the instant case, the defendants cannot query and try the claimant for allegation of sexual harassment by a final year student, appeal for reduction of project supervision fee and blank acts of gross misconduct, but instead find him guilty and dismiss him on the allegations of sexual harassment of some females students, extortion of money from claimant’s supervisees in the Department of Pharmacology and Therapeutics in the Institute of Science Laboratory Technology Programme; alteration and mutilation of results and insubordination to constituted authority- refusal to submit past questions paper, marking schemes, booklets/answer scripts and results of courses examined by the claimant. This offends the tenets of fair hearing. I so hold. I stated ealier that the warning meted out on the claimant was punishment for his infraction for which the subsequent dismissal was a double punishment.

 

91. Exhibit AA14 which is the claimant’s suit at the High Court of Justice of Delta State vide HCG/M/26/2016 to enforce his fundamental human right against the defendants was filed on 10th August 2016. The affidavit of service of Chiemeke Patrick, Chief Bailiff of the High Court of Justice of Delta State indicates that the defendants were served the claimant’s Application/Processes on 10th August 2016. Exhibit A16 dated 18th August, 2016 is the defendants letter of dismissal of the claimant from the services of the University with effect from 12th August 2016- the date the 1st Defendant’s Governing Council held its meeting at which it approved that the claimant be dismissed.

 

92. In Jombo v. PEFMB (2005) 14 NWLR (Pt. 945) 443, the Supreme Court held that the act of an employer in dismissing an employee from office during the pendency of an action is contemptuous of the judiciary, which has been seised with determination of civil rights under the Constitution. A fortiori, for the defendants to dismiss the claimant during the pending of an Application in Suit No. HCG/M/26/2016 between the claimant and the defendants at the High Court of Justice of Delta State, in the Otu Jeremi Judicial Division, holden at Otu Jeremi during the pending of an application is contemptuous of the Court and indeed the Judiciary. I so find. On this score, the dismissal of the claimant by the defendants is ultra vires. I so hold. See Oloruntoba-Oju v. Prof Abdul-Raheem (supra) and Dr Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which was delivered on April 25, 2017

 

93. The law is established that an employer is not obliged to give reasons for the dismissal of an employee. However, once reasons are given and they are disputed in Court, the onus lay on the employer to justify the reasons by evidential proof which proof is that beyond reasonable doubt as provided for by section 133 of the Evidence Act 2011. See Audu v. Petroleum Equalisation Fund (Management) Board & anor (2010) LPELR 3824 (CA); NEPA v. Adeyemi (2007) 3 NWLR (Pt. 1021) 315 CA and Keystone Bank Plc v. Yiggon (2013) LPELR-22131 (CA). In my candid view, it is clear and evident from consideration of the processes and submissions of the parties that the defendants have failed to discharge the burden of proof on them as required by law for dismissing the claimant. I so hold.

 

94. I am accordingly satisfied that the defendants did not strictly adhere to section 44 (1) & (2) of the Delta State University Law before dismissing the claimant from the Delta State University, Abraka. His dismissal is accordingly unlawful, and as such null and void. In making this finding, by BCC Plc v. Ager (2010) 9 NWLR (Pt. 1199) 292 SC, there is no dismissal of the claimant as what the defendants did is a nullity before the law. Accordingly, relief (a) to (h) as claimed succeed and so are hereby granted.

 

95. Judgment is entered accordingly. I make no order as to cost.

 

 

Hon. Justice J.I. Targema, PhD