IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS
DATE: 7TH JUNE, 2022 SUIT NO: NICN/IB/138/2020
BETWEEN:
Mr. Kelani Ojo Omotosho Ajadi - - - - - Claimant
AND
1. The Polytechnic, Ibadan-
2. The Governing Council, The Polytechnic, Ibadan - - Defendants
REPRESENTATION
Femi Aborisade, Odunayo Adeyinka &
Rasheedat Akinrinde for the Claimant
M. O. Akintunde for the Defendants
JUDGMENT
1. Introduction & Claims
1. The Claimant by his General Form of Complaint dated and filed 21/12/2020 approached this Court along with his statement of facts, witness statement on oath, list and copies of the documents to be relied on at trial and sought the following reliefs against the Defendants –
1. A Declaration that the employment relationship between the Claimant and the Defendants is one governed by statutory flavor and constitutional force, same being based on The Polytechnic, lbadan, Law, CAP. I24, Laws of Oyo State, 2000 and subsidiary rules made pursuant to the enabling Law as spelt out in “The Polytechnic, Ibadan Staff Handbook (Being Conditions of Service for Staff of The Polytechnic, Ibadan (2005)”.
2. A Declaration that The Polytechnic, Ibadan Law, Cap. 124, Laws of Oyo State, 2000 and subsidiary rules made pursuant to the enabling Law as spelt out in “The Polytechnic, Ibadan Staff Handbook (Being Conditions of Service for Staff of The Polytechnic, Ibadan (2005’)” must be strictly observed ,in imposing any disciplinary measures, including disengaging or removing the Claimant from office and/or terminating the Claimant’s appointment.
3. A Declaration that the Defendants have no power and/or right to determine the employment of the Claimant outside the contractual terms contained in the Claimant’s appointment letter, the provisions of The Polytechnic, Ibadan, Law, Cap. 124, Laws of Oyo State, 2000 and subsidiary rules made pursuant to the enabling Law as spelt out in “The Polytechnic, Ibadan Staff Handbook (Being Conditions of Service for Staff of The Polytechnic, Ibadan (2005)”,
4. A Declaration that the purported termination of the Claimant’s appointment without allowing him to be heard within the strict provisions of the enabling law and the regulations that govern employment relationship in the 1st Defendant is a breach of his fundamental right of fair hearing and, therefore, illegal, null and void.
5. A Declaration that the Claimant is still a staff of the Defendants.
6. A Declaration that the investigation and trial of the Claimant for “inappropriate relationship with a female student” and termination for “inappropriate behavior and a poorly managed relationship with your former student” is a flagrant violation of Claimant’s fundamental right to fair hearing when he was never confronted with an allegation of “inappropriate behavior and a poorly managed relationship with your former student” and so was not given any opportunity to be heard or defend himself:
7. A Declaration that the unproven offence for which the Claimant’s appointment was terminated, “inappropriate behavior and a poorly managed relationship with ... former student” is not covered by the definition of misconduct “susceptible to investigation and proof” as provided in Regulation 15.01(xviii) of the Defendants’ Staff Handbook.
8. A Declaration that the investigation and trial of the Claimant without any complainant and/or petition against him by any aggrieved person is malicious and amounts to an unfair labour practice.
9. A Declaration that the Defendants have a legal obligation to prove allegations of misconduct against the Claimant before the Defendants can validly terminate the appointment of the Claimant.
10. A Declaration that under Section 28 of The Polytechnic, Ibadan Law, Cap. I24, Laws of Oyo State, 2000 and under Regulation 10.8 of the “The Polytechnic, Ibadan Staff Handbook (Being Conditions of Service for Staff of The Polytechnic, lbadan (2005)” the Defendants can only remove the Claimant from the services of the 1st Defendant on the ground of proven misconduct or inability to perform the functions of his office and only after the Claimant has been afforded an opportunity of fair hearing.
11. A Declaration that the termination of the Claimant pursuant to the letter dated 15/9/2020 and without affording the claimant an opportunity for fair hearing as spelt out under Sections 10(g); 28(l)(a),(c), and (d) of The Polytechnic, Ibadan Law, Cap. 124, Laws of Oyo State, 2000 and Regulation 10.08(c) & (d) of “The Polytechnic, Ibadan Staff Handbook (Being Conditions of Service for Staff of The Polytechnic, Ibadan (2005)” is unlawful, null and void.
12. An Order Setting Aside the letter of termination dated 15/9/2020, same being unconstitutional, unlawful, wrongful, an unfair labour practice and a negation of the rules of natural justice.
13. An Order reinstating the Claimant to his position as Chief Lecturer, without any loss of earnings, salaries, allowances, perquisites of office, seniority, privileges, pensionable rights and without any break in service, from September 2020 until the final determination of this Suit and as if the appointment of the Claimant was never terminated.
14. An Order for the payment of all Claimant’s earned entitlements, unpaid salaries, unpaid academic allowances and all amounting to =N=3,614,397.88 (Three Million, Six Hundred and Fourteen Thousand, Three Hundred and Ninety Seven Naira, Eighty-Eight Kobo) being unpaid half salaries from April 2019 to August 2020,
15. An Order directing the Defendants to pay the Claimant two (2) years’ salary as general damages for wrongful and unlawful termination predicated upon unproven misconduct tagged “inappropriate relationship”, “inappropriate behavior” and tarnishing the image of The Polytechnic, Ibadan, which allegations impugn the integrity of the Claimant, without any established just or good cause.
16. Cost of this action.
17. Any other order (s) and further orders that the Honourable Court may deem right in the circumstances,
2. Upon being served the originating processes and the accompanying processes, the Defendants filed entered an appearance and filed a joint statement of defence dated 16/2/21 on 26/2/21. The statement of defence was accompanied by witness deposition, list of witness as well as list and copies of documents to be relied upon at trial. On 24/6/21, the Claimant filed a reply to the statement of defence.
2. Case of the Claimant
3. The case of the Claimant as seen from the processes filed is that his employment with the 1st Defendant was confirmed; that he was alleged to have had inappropriate relationship with one of his female students; that he was queried and appeared before both Ayelari-led Investigation Panel & Adeyemi-led Investigation Panel; that he also appeared before the Senior Staff Disciplinary Committee and made representation; that his appointment was eventually terminated by the Defendants and that the process leading to the termination of his appointment was flawed with as the established disciplinary procedure was not followed by the Defendants.
3. Case of the Defendants
4. The case of the Defendants as revealed from the pleadings filed and documents attached is that the Claimant was a Chief Lecturer in the employ of the 1st Defendant; that in 2018, there was a Radio Broadcast about an alleged sex scandal between one of the 1st Defendant’s Lecturer and a female student which culminated in the arrest of the student at the instance of the Lecturer; that following the public backlash and its attendant viral publication on social media platforms, the Management of the 1st Defendant received several phone calls together with a recording of the program from an anonymous source; that in order to save the 1st Defendant from the public odium which attended the airing, the 2nd Defendant directed the Management of the 1st to set up a Committee to investigate the matter; that a Senior Staff Disciplinary Committee was eventually set up to where the Claimant appeared and made representation; that a 2nd Senior Staff Disciplinary Committee was then set up to review the recommendations of the 1st Committee and that although the SSDC at its meeting of 12/8/2020 recommended reduction in rank as punishment for the Claimant the appointment of the Claimant was eventually terminated by a letter dated 15/9/2020.
4. Final Written Addresses
4. On the 16/11/21, Claimant Counsel filed the final written address of the Claimant dated 8/11/21, in it learned Counsel raised these four issues for determination –
1. Whether Claimant’s employment is one with statutory flavor
2. Whether Defendants strictly observed statutorily prescribed disciplinary procedure and the rules of natural justice to make the termination of Claimant’s appointment valid, constitutional and lawful
3. Whether the Defendants have the Defendants have the right to terminate the appointment of the Claimant where the Dr. J.A. Adebisi-led Investigative Panel and the SSDC absolved the Claimant of any wrongdoing.
4. Whether Defendants were right to have queried the Claimant for one offence (“inappropriate relationship with a female student in your department”) and terminated him for a different offence (“inappropriate behavior and a poorly managed relationship with your former student”).
5. Arguing Issue 1 Learned Counsel submitted that where a contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of Master and Servant; that it accordingly enjoys statutory flavor citing Imoloame v. W.A.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303; that this honourable Court in Ogunjimi Busola Adebisi v. Board of Inland Revenue, Oyo State & 2Ors (Suit No. NICN/IB/19/2016), Judgment of which was delivered on 28/9/2021 relied on the Supreme Court authority of Kwara State Judicial Service Commission & Ors v. Tolani (2019) LPELR-47539 (SC) to hold that an employment with statutory flavor means when the employment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee citing paragraphs 36 & 37 of the Judgment); that The Polytechnic Ibadan Law was made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); that The Polytechnic, Ibadan Law protects the Claimant’s employment; that Section 28 of The Polytechnic, Ibadan Law sets out the procedure for the removal of academic, administrative or technical staff. Counsel submitted that the Polytechnic Ibadan Staff Handbook was made pursuant to The Polytechnic Ibadan Law and Chapter 10 of the Staff Handbook is devoted to discipline; that the Defendants are deemed to admit the fact that the employment of the Claimant is one with statutory flavor and it is trite law that what is admitted needs no further proof citing Section 123 of the Evidence Act, 2011.
6. With respect to Issue 2, Counsel submitted that Defendants did not strictly observe statutorily prescribed disciplinary procedure; that the onus is on the Claimant to prove the termination of her appointment which is unlawful citing Oloruntoba-Oju & Ors v. Abdul Raheem & Ors (2009) LPELR-2596 (SC), Ogunjimi Busola Adebisi v. Board of Inland Revenue, Oyo State & 2 Ors (Suit No. NICN/IB/2016); Comptroller General of Customs &Ors v. Gusau (2017) 4 SC (Pt. II) 128; Bamgboye v. Unilorin (1999) 10 NWLR (Pt.622) 290; that in an employment with statutory flavor, parties are bound to observe the Conditions contained in the statute and anything done, which is inconsistent with that shall be null and void and of no effect citing Union Bank v. Ogboh (1995) 2 SCNJ; that where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination, as what the employer did was a nullity before the law citing Zidel v. RSCSC (2007) 3 NWLR (Pt. 1022) 554 SC; SUIT NO; NICN/LA/14/2016; Aderonke Kehinde Oke v. Lagos State Government & 2 Ors; Longe v. FBN Plc (2010) LPELR-1793 (SC); Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors (2009) LPELR-2596(SC); that where a public body fails to comply with certain procedural safeguard in an enabling Act or Regulations, there is a breach of duty imposed on it and its decision in such circumstances is ultra vires citing Magit v. University of Agriculture, Makurdi (2005) 19 NWLR (Pt. 959) 211 at 257.
7. On issue 3, Counsel submitted that the Defendants have no right to terminate the appointment of the Claimant where the Dr. J. A. Adebisi-led Investigative Panel and the 2nd SSDC (Senior Staff Disciplinary Committee) absolved the Claimant of any wrongdoing; that terminating the Claimant’s employment without proven wrongdoing established by the Dr. J.A. Adebisi led investigative Panel and the 2nd SSDC simply amounts to punishment without offence which no known law or principle of law supports; that the central principle of law is that punishment cannot be arbitrarily imposed in the absence of proven misconduct citing Angel Shipping& Dyeing Ltd v. Ajah (2000) 13 NWLR (Pt. 685) 551 CA; Kasali Olugbenga v. Access Bank Plc (Suit No. NICN/LA/430/2013); Federal Polytechnic, Ede & Ors v. Alhaji Lukman Ademola Oyebanji (2012) LPELR-19696 (CA).
8. Counsel also submitted that the employer has no right to act beyond the recommendation of the Investigative Panel citing Udegbenam v. FCDA (2003) 10 NWLR (Pt. 829) 487 SC; Counsel also humbly submitted that documentary evidence is the best evidence citing Agbareh v. Mimra (2008) All FWLR (Pt. 409) 559 at 563; Attorney-General Bendel State v. United Bank for Africa Ltd (1986) 4 NWLR (Pt. 37) 547; that the law is that any ambiguity must be resolved in favour of the employee citing Opaleye v. N.N.P.C. (NICN/ABJ/240/2018); Mr. M.A. Chiroma v. Forte Oil Plc (NICN/ABJ/165/2018); James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd ( NICN/LA/41/2012.
9. With regards to issue 4, Counsel submitted that the Defendants were wrong in law to have queried the Claimant for one offence (“inappropriate relationship with a female student in your department”) and penalized him for a different offence (“inappropriate behavior and a poorly managed relationship with your former student”); that an employee cannot be queried for one offence and punished for an offence he never responded to; that such a procedure has been held to be fundamentally against the requirement of fair hearing citing Mr. M.A. Chiroma v. Forte Oil Plc (NICN/ABJ/165/2018). Counsel further urged the court to find and hold that the Claimant was not given an appropriate behavior and a poorly managed relationship with your former student”; that the disclosure made in the letter of termination is an official bias which the law frowns at citing Adebesin v. State (2014) LPELR-22694; VenkatuchalamIver v. The State of Madras AIR 195.7 Mad. 623, 626. Counsel further urged the court to grant all the reliefs of the Claimant.
10. An unpaged final written address dated 4/2/22, was filed on behalf of the Defendants on 7/2/2022. In it learned Counsel sets down two issues for determination as follows –
1. Whether the termination of the Claimant’s appointment by the Defendants is unlawful.
2. If so, whether the Claimant is entitled to the reliefs sought.
11. Arguing Issue 1, learned Counsel submitted that where the Claimant is claiming that his employment was unlawfully terminated, the onus is on him to place before the Court the terms of the contract and prove in what manner the said terms were breached by the employer citing Okomu Oil Palm Co. Ltd v. Iserheinrheir (2001) FWLR (Pt. 45) 670; First Bank Plc. v. Momoh (2021) AFWLR (Pt. 1080) 979 at 1001; that good cause has been interpreted by Supreme Court as simply meaning ‘for good reason to the satisfaction of the Respondent (i.e. Employer) or for good or reasonable grounds’ citing Baba v. N.A.C.A (1991) LPELR-692 (SC) at 25; that where the terms of the contract empowers either party to terminate the employment with or without notice, it becomes irrelevant and immaterial to examine the motive compelling the termination citing CBN v. Archibong (2001) FWLR (Pt. 58) at 47-8; that termination of employment cannot be unlawful notwithstanding that the employer gave totally untenable reason for the termination citing Katto v. CBN (2001) FWLR (Pt. 53) 188 at 211-212; that a Court of law is strictly confined to the terms of contract as agreed between the parties and cannot look outside the agreed or stipulated terms in deciding the rights and obligations of the parties citing University of Maiduguri v. Dawa (2002) FWLR (Pt. 108) 1402 at 1419; WNDC v. Abimbola (1966) 4 NSCC 172; that it is settled position of law that what is admitted requires no further proof citing BON v. Afolayan (2001) 6 SCNJ 10; that unless it can be established that it breached the terms of contract, termination cannot be wrongful even if the employer gives a totally untenable reason citing Ihezukwu v. University of Jos (1990) 7 SC (Pt. 1) 123 at 135; that Admission of a party in law is the best evidence in the sense that the opposing party need not make effort to prove the admitted fact citing Salawu v. Yussuf (2007) 5 SCNJ 354; that an employer is entitled to terminate the service of a servant whose conduct is no longer acceptable to it once citing NITEL v. Awala(2002) FWLR (Pt. 125) 779 at 793. Counsel further urged the court to hold that since termination of employment was in line with the procedure prescribed in the contract, the proof or disproof of an allegation of misconduct will not render the termination unlawful citing Eneche v. Lower Benue River Basin Dev Authority (1981) 11 CA 243; that what constitutes fair hearing and its breach depends on the circumstances of each case and what is important under the circumstances is for the Committee to substantially observe the twin pillars of natural justice by giving the employee adequate opportunity to know the case against him and to answer to it citing NEPA v. Arobieke (2006) AFWLR (pt. 316) 284 at 304.
12. Counsel further submitted that the law is that where an employee is confronted with allegation and afforded opportunity to respond to them, the doctrine of fair hearing is not breached citing Abubakar Tatari Alli Polytechnic v. Maina (2005) FWLR (Pt. 284) 250 at 268; that the case against the Claimant was brought home to him that one can say that the requirement of natural justice were specifically observed under the facts and circumstances of this peculiar case citing Adedeji v. PSC (1967) 1 ANLR 17;that the substance of any proceeding is the objective view/opinion of a fairly minded person who was present throughout the proceedings whether in his opinion justice has been done to the Claimant; that in the interpretation of clear and unambiguous words of a statute/document, the ordinary simple grammatical meaning should be employed citing Gaina v. S.D.P (2020) AFWLR (Pt. 1066) 318 at 399; that an employer is not bound to accept the recommendation of investigating committee as a Court cannot foist or impose an employee on an unwilling employer citing Ziideh v. RSCSC 2007 AFWLR (Pt. 35) 243 at 365;Bamgboye v. University of Ilorin 1999 6 SCNJ 295 at 326; that gross misconduct is an act that is of grave and weighty character as to undermine the relationship of confidence which should exist between the employee and his employer citing Yusuf v. UBN LTD 1996 LPELR-3537 (SC) Per Iguh JSC @ Pp. 26 Page C; Ajayi v. Texaco 1987 9-11 SC1; Eze v. Springbank 2011 12 sc (Pt 1) 173; that misconduct is an act that is inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged citing Nwobosi v. ACB (1995) 7 SCNJ 92; that misconduct is inimical or prejudicial to discipline or proper administration of an employer’s establishment citing Sule v. Nig. Cotton Board (1985) 5 S.C. 66; that misconduct also amounts to dereliction of duty; unlawful or improper behavior citing Jayesinmi v. ICAN (2012) LPELR-1968.
13. Arguing issue 2, learned counsel submitted that declaratory reliefs by their nature are discretionary and should only be granted in circumstances in which the Court is of the opinion that the party seeking it, when all the facts are taken into account, is entitled to the exercise of the discretion in his favour citing Egbunike v. Muoekwu (1961) LPELER-2505 (SC); that it goes no further but while a consequential relief may be joined, the Court still has a discretion to limit the grant to pure declaration without a coercive direction to its enforcement citing Western Steel Workers Ltd v. Iron & Steel Workers Union (1988) LPELR-3480 (SC), that applicant must establish a breach of his right citing Chukwuma v. Shell Petroleum (Nig) Ltd (1993) LPELR 864 (SC) pp 64-65; that it must be refused where the Defendant adduces evidence, oral or documentary which has the effect of discrediting the Plaintiff’s evidence citing Ogundiran v. Okanlawon (1963) LPELR 25403 (SC) at 56; Mogaji v. Cadbury (1985) LPELR 1889. Counsel urged the court to hold that the Claimant is not entitled to any of the reliefs sought by him and to dismiss his case in its entirety.
5. Decision
14. When the parties in this case completely settled their pleadings and the matter was to be set down for trial, learned Counsel on either side agreed to a trial on record procedure. By this, both Counsel agreed not to call oral evidence but rather to rely on the case as filed and decision to be reached on the basis of the documents filed along with the processes. The procedure sought to be adopted finds support in the Rules of this Court. In this regards, Order 38 Rule 33(1) of the Rules of this Court states thus -
“In any proceeding before the Court, parties may by consent at the close of pleadings agree to a trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination”.
15. The rationale for this is to enable maximum utilization of the available time of the Court towards speedy dispensation of justice especially in cases as the instant case where the need to call oral evidence can easily be dispensed with.
16. I read all the processes filed including the documents attached to the processes by both the Claimant and the Defendants. Having carefully reviewed the case and patiently evaluated all the documents frontloaded, I set down these 2 issues for the just determination of this case –
1. Whether, considering the whole facts of this case, the termination of the employment of the Claimant by the Defendants was unjustified and hence void.
2. Whether the Claimant is entitled to some or all the reliefs sought against the Defendants.
17. The facts of this case as revealed in the pleadings filed and documents attached are that the Claimant was a senior academic staff of the 1st Defendant; that sometimes between January and February 2019, an episode of a Radio program alleging illicit sexual relationship between an academic staff of the 1st Defendant and a student in his Department which subsequently led to the arrest of the student by the Police at the instance of the Lecturer was broadcasted by a popular Radio Station in Ibadan; that the 1st Defendant was inundated with calls from concerned members of the public aghast by the scandal; that following a receipt of the audio broadcast a discreet investigation revealed the identity of the parties to be the Claimant and one Miss Modinat Yetunde Balogun; that an Investigative Panel was constituted to examine the issue to which Claimant was invited; that the Claimant appeared before the Panel but objected to the presence of 3 members of the Panel. As a result of the objection of the Claimant, another was set up led by a Dr. J.A. Adebisi to which the Claimant appeared and made representation. The latter Panel submitted a report and the 1st Defendant set up a Senior Staff Disciplinary Committee which reviewed the report of the Investigative Panel and made recommendations to the Defendants. Both the Claimant and Miss Modinat Yetunde Balogun appeared before the Senior Staff Disciplinary Committee. Contrary to the recommendations made by the Senior Staff Disciplinary Committee, the Defendants terminated the employment of the Claimant. It is part of the argument of the Claimant that the process leading to the termination of his employment was fraught with non-compliance with the extant laid down procedure; denial of fair hearing and hence the termination of his employment illegal, unconstitutional, null and void. The position canvassed by the Defendants is that the Claimant was given adequate hearing and that due process was followed in the events leading to the termination of his employment.
18. The central point of argument of the Claimant in this case is that the Defendants did not strictly comply with procedure laid down in the Cap. 124, Laws of Oyo State, 2000 and spelt out in The Polytechnic, Ibadan Staff Handbook being the Condition of Service of The Polytechnic, Ibadan, 2005.
19. The first issue for determination is whether, considering the whole facts of this case, the termination of the employment of the Claimant by the Defendants was unjustified and void. Both parties are in ad idem as to the application of the Staff Handbook of the 1st Defendant to the case at hand. Both sides agreed that the Handbook contained the disciplinary procedure to be followed by the Defendants in order to be justified in terminating the employment of the Claimant. Chapter 10 of the Staff Handbook deals with Discipline. The Claimant was a Chief Lecturer in the 1st Defendant. Thus he was an academic staff. Paragraph 10.08 deals with Removal of Management, Academic and Administrative Staff. It provides thus –
“If it appears to the Governing Council that there are reasons for believing that the Rector, the Deputy Rector, the Registrar or any other person employed as a member of the academic or administrative staff of the Polytechnic shall be removed on ground of misconduct or cannot perform the functions of his office, the Governing Council shall:
(a). Give notice of those reasons to the person in question.
(b). Where the matter relates to the Rector, the Deputy Rector, the Registrar or a Principal Officer, set up a Committee from among the members of the Governing Council and the A & P (A) (NA) to investigate the matter and to report to the Governing Council.
(c). Where the matter relates to any other member of the academic or administrative staff, direct the Rector to set up a Committee to investigate the matter and report to the Governing Council but where the Matter relates to a member of academic staff part of the members of the Committee shall be appointed from among the members of A & P (A).
(d). Make reasonable arrangements for the person in question to be accompanied by witness (es) if he so desires and be afforded an opportunity of appearing before and being heard by the investigating Committee with respect to the matter; and if the Governing Council after considering the report of the investigating Committee, is satisfied that the person in question would be removed, he shall be removed by an instrument in writing signed by the Registrar on the directives of the Council.
(e). It shall be the duty of the Registrar upon signing the instrument of removal to cause a copy of the instrument to be served as soon as possible on the person to whom it relates.
(f). If it appears
(i). in the case of the Rector, to the Governing Council;
(ii). in the case of the Deputy Rector, the Registrar or any other person employed as a member of the academic or administrative staff of the Polytechnic, to the Rector.
(g). The officer concerned in (f) above shall be entitled to (1/2) half of his salary and emoluments for the duration of the suspension or interdiction.
(h). Members of all other categories of staff of the Polytechnic other than those mentioned in the foregoing provisions of this section shall, for the purpose of discipline, be subject to the authority of the Rector. However, any member of such staff (except members who are daily paid) removed from office or employment by the Rector shall have a right of appeal to the Council against the removal.
(i). In the exercise of their powers under sections 10.04 and 10.08 (e) of this Chapter, the Council and Rector shall have power to appoint a disciplinary panel of such members of the staff of the Polytechnic as they may in their discretion determine for the purpose of advising them on any particular matter relating to discipline”.
20. Under paragraph 10.09 any member of staff against whom disciplinary action is to be taken shall be issued written query by the Registrar where all the allegations must be clearly stated and given a reasonable length of time to respond to such query. If the response is not satisfactory, the staff should be made to know in writing.
21. I have brought to the fore the procedure to discipline of an academic staff as applicable to the Claimant. This is to enable a holistic view of the diverse steps taken by the Defendants and which formed the basis of the complaint of the Claimant. Did the Defendants comply with the laid down procedure as reproduced above in terminating the employment of the Claimant?
22. The procedure firstly envisaged the issuance of query to any erring academic staff to be disciplined. Was the Claimant issued a Query and informed of the allegation against him? I answer in the affirmative. Indeed the Claimant was issued 2 Queries on the same subject at different times. The first is on page 116 of the record. It is on record that the Claimant requested more information to enable him to properly react to the query. Subsequently he was issued another Query dated 19/3/19 headed Notice of Misconduct which appeared on page 133 of the Record of Court. Did the Claimant respond to the Query? He did by his memo dated 20/3/19 where he requested to be supplied essential material of the issue to elicit an intelligent response to the same. Having been dissatisfied with the Claimant’s response, the Ag. Registrar of the 1st Defendant issued him a memo dated 25/3/19 and directed him to –
“… specifically respond to your inappropriate relationship with Miss Balogun Modinat Yetunde: Matric No. 2014213100026, a female student of your department. The series of social and mass media coverage of the telephone (audio) recordings of the affair has brought the Institution into disrepute”.
23. Was the Claimant invited to face disciplinary Panel on the allegation against him and did he attend same? Again I answer in the affirmative. It is also on record that indeed 2 investigation panels were set up at different times. Claimant was invited to Ayelari-led Panel where he successfully objected to the presence of some of the members that they would be bias against him. He was invited to the Adebisi-led Investigation Panel by an Internal Memo dated 6/5/19 and was directed by the same memo that -
“… you may wish to come along with document(s) that could assist the Panel on its investigation”.
24. It is my finding that after the Adebisi-led Investigation Panel submitted its report a Senior Staff Disciplinary Committee was set up in accordance with the procedure laid down by the Staff Handbook. Again the Claimant was invited to appear before the SSDC by a memo dated 9/12/19 (See page 173 of the Record). Just like all the previous Panels, the Claimant was afforded ample opportunity to present his case at the Senior Staff Disciplinary Committee. It was after all this was done that the Claimant’s appointment was terminated by a letter dated 15/9/2020 (See page 197). That document of 4 paragraphs read as follows –
“Dear Mr. Ajadi,
INVOLMENT IN ACT OF MISCONDUCT
TERMINATION OF APPOINTMENT
“You will recall that you were engaged in an inappropriate behaviour and a poorly managed relationship with your former student. These resulted in embarrassing and tarnishing the image of your employer, The Polytechnic, Ibadan (TPI).
You will also recall your responses and appearances before the Investigation Panel and Senior Staff Disciplinary Committee that looked into the matters. After a careful consideration of the issues above, the Governing Council found you guilty as your actions and activities amount to misconduct.
The Governing Council therefore approved the immediate termination of your appointment with effect from Friday, 11th September, 2020.
You are to hand over all the properties of the Institution in your possession to your Head of Department. You are also advised to contact the Confidential Passage and Estate (CPE) of the Registry to initiate the payment of your employment benefits”.
25. Now from this narration, can it be said that the Defendants follow the due process in the termination of the employment of the Claimant? It is my finding that the Defendants did all that is expected of them to do in compliance with the Staff Handbook of the 1st Defendant. The analysis as stated above shows that the Claimant was issued Queries; that he answered the Queries and called for more information to enable do so where required and was obliged; that he was invited to appear before 2 separate investigation Panels; that he appeared before these Panels and presented his case and that he was invited to and appeared before the Senior Staff Disciplinary Committee of the 1st Defendant respecting the allegation of misconduct against him.
26. Now under the Staff Handbook of the Defendants Misconduct as defined in paragraph 15.01(xviii) is a specific act of serious wrongdoing susceptible to investigation and proof. It includes: Willful act of omission or general misconduct to the scandal of The Polytechnic, Ibadan or to the prejudice of discipline and proper administration of The Polytechnic, Ibadan e.g corruption, dishonesty, drunkenness, false claims against The Polytechnic, Ibadan, foul language, insubordination, negligence, falsification or suppression of information, destruction of records, failure to keep records, etc conviction for criminal offence (other than traffic or sanitary offence or the like) financial embarrassment, absence without leave, disobedience of lawful order such as refusal to accept posting and disclosure of information and the like. I find the conduct of the Claimant under reference a misconduct within the meaning of the terms and conditions of his engagement. I also find and hold that the Defendants having done all that they ought to do were justified in terminating the employment of the Claimant in accordance with the terms and conditions of engagement. Accordingly, I resolve issue 1 in favor of the Defendants and against the Claimant.
27. Now, even aside from fully complying with the terms and conditions of engagement in terminating the appointment of the Claimant, what really are the circumstances of this case? Are the whole gamut and circumstances of this case such as to justify the termination of the appointment of the Claimant? The events leading to the termination of the appointment of the Claimant are that he had inappropriate relationship with one of his students a Miss Balogun, Modinat Yetunde. I read all his testimonies before the two investigation Panels set up to investigate the allegations against him. Unfortunately, both sides did not call oral evidence and as such the benefit for the Court to observe the demeanor of the Claimant or any other witness that would have been called was not afforded. I find that all through the documents filed, the Claimant did not deny the allegation of having inappropriate or sexual relationship with his student at all. Indeed when he appeared before the Adebisi-led Investigation Panel & the Senior Staff Disciplinary Committee, the Claimant confessed to have had amorous relationship with his victim Miss Modinat Yetunde Balogun. His explanation was that he wanted to marry her since his wife left him not too long and that some discovery made him change his mind. His testimonies before the SSDC (See pages 179-184 of the Court’s file) showed him as both arrogant and unrepentant. There was no remorse in him. It is on record that the Claimant deliberately requested to supervise the final year project of Miss Modinat Yetunde Balogun whom I will simply describe as his victim in this Judgment. There is ample evidence that when the said Miss Balogun rejected his amorous advances and overtures, the Claimant failed her in her Project and she had to repeat the year. Miss Modinat Yetunde Balogun (the Victim) appeared before the Senior Staff Disciplinary Committee on 10/12/19. Her painful and disturbing testimonies appeared on pages 184-194 of the Record. On page 186 she testified thus –
“The following year that we came for the re-run course, so I had to register for his [the Claimant] course again. He came in, I think may be the following month after registration and I walked to his office and I said sir, I’ve brought in the project, exact where I stopped last year. He [the Claimant] said, are we still on the same thing or am still adamant on him, and I told him that if this is what I will do to finish up on time because I have just one year left out. I have no choice than to comply with whatever you want”.
28. Would the Victim have agreed to such amorous, sexual and unholy relationship with the Claimant but for the fact that the Claimant had both authority and control over her? Can it thus be said that the relationship which eventually resulted between the Claimant and the Victim – Miss Modinat Yetunde Balogun was voluntary and mutual as canvassed by the Claimant? Yet there is evidence to the effect that the Claimant wrote a petition to the Police against his Victim – Miss Modinat Yetunde Balogun which petition led to the arrest and eventual prosecution of the Victim at the Magistrate’s Court, Iyaganku in Ibadan. His complaint to the Police was that Miss Modinat Yetunde Balogun his Victim stole his money by fraudulently transferring money via his mobile phone. I believe the testimonies of the Victim Modinat Yetunde Balogun before the SSDC. Those testimonies reflect the dilemma of a vulnerable young lady in the hands of a predator who would stop at nothing to satisfy his sexual urges and desires. Although no oral evidence was called in the open Court, I could at a point visualize the pain and agony she went through in the hands of Mr. Kelani Ojo Omotosho Ajadi - the Claimant.
29. Miss Yetunde Modinat Balogun – the Victim was a student of the Claimant. There is evidence led to the effect that the Claimant taught her at least 3 Courses in the course of her studentship at the 1st Defendant. By virtue of being his student, the Claimant was expected to teach, counsel and mentor Miss Yetunde Modinat Balogun. The Claimant was also expected to protect her no matter how little. That relationship ought not be abused. He was not expected to take advantage of any of his students and indeed not the least Miss Yetunde Modinat Balogun. I find that the Claimant abused the trust which the Defendants reposed in him by putting Miss Modinat Yetunde Balogun under him to teach and to mentor. I also find that by his immoral conduct motivated by selfish and uncontrolled amorous desire to satisfy the flesh, the Claimant scandalized the good name of the 1st Defendant. Certainly no institution of higher learning and not the least the 1st Defendant would be expected to continue to allow the Claimant to remain on its payroll. Otherwise some other female students of the 1st Defendant would be at the mercy of the Claimant as a dangerous sex predator.
30. I have evidence of the Claimant before me to the effect that his former wife left him to solely take care of their 3 children. In other words the Claimant is also a father. Would he be happy were any of his daughters (if he has one) be treated exactly the way he treated Miss Modinat Yetunde Balogun a student committed to him to teach?
31. Still on the point being stressed, one of the three governance mantras of the Buhari-led Administration is a fight against corruption. Corruption is under different guises and colours. To insist on sleeping with a female student for marks or for a successful grading in end of course Project is nothing short of corruption. A Lecturer in that position and a Politician who siphoned funds budgeted for Constituency Project are in the same class of destroyers of the society. Miss Balogun could have been the daughter of anybody in the society. The conduct of the Claimant in this case is nothing short of corruption which this Court must not afford any protection. Incidents of this nature are becoming rampant in the tertiary institutions across the country. It is one for which the Court must by now take judicial notice. In Dr. Johnson Oluwole Ayodele v. Lagos State University Suit No: NICN/LA/452/2015 Judgment of which was delivered on 15/5/2020 an academic staff of the Defendant of over 60 years who molested and abused a 19 year old child under his tutorship had approached the Court for protection against an impending disciplinary proceedings against him. Obaseki-Osaghae J of this Court did not hesitate to rule against him noting that such a conduct must not be afforded judicial protection. His Lordship did not allow the Court to be used to shield a sex predator as the Claimant here.
32. The Claimant is lucky! I dare say that his appointment was only terminated and not out rightly dismissed from the services of the 1st Defendant. He is a predator and to allow him to continue to remain in the employ of the 1st Defendant by granting his prayers is to place more preys like Miss Modinat Yetunde Balogun at his disposal. No doubt the good name and image of the 1st Defendant as a reputable academic institution known for research and learning is dented by the broadcast of the Claimant’s audio recording of his escapades. Certainly, his likes should not continue to remain in our higher institutions of learning. I have no hesitation in resolving issue 1 against the Claimant and in favor of te Defendants
33. The second issue for determination is whether the Claimant is entitled to some or all the reliefs sought against the Defendants. Taking cognizance of the resolution of issue 1, the consideration of this second issue becomes otiose and at the best a mere academic exercise. However for the purpose of fulfilling all righteousness and be on the side of caution (should there be some errors in the resolution of that issue doubtful though) I opt to consider and pronounce on this issue also.
34. It is the duty of he who approaches the Court for judicial intervention to adduce cogent, credible and admissible evidence in support of his case. After all, it remains trite that he who asserts must prove. The cogent, credible and admissible evidence required for a grant of relief may be either oral or documentary or both. Documentary evidence is however always and usually preferred. The reliefs sought by the Claimant in this case are 17 in all. The first eleven reliefs sought are however declaratory in nature. The state of the law respecting the grant of declaratory reliefs are clear, unambiguous and without controversies. A plea by a party for a declaration is asking the Court to give effects to an established legal right. Thus it is incumbent on the Claimant to as a necessity prove the existence of that legal right first. The appellate Courts have pronounced with force that, the standard of proof on a plaintiff in the place of the Claimant in establishing a declaratory relief as the instant case is quite heavy and must be to the satisfaction of the Court. For as the Akure Division of the Court of Appeal restated in Kofoworola Babajide Adewunmi & Anor. v. Daud Biodun Akinloye & Ors. (2019) LPELR-50417(CA) declaratory reliefs are not granted willy-nilly or graciously on a platter of gold or on the weakness of the Defendant’s case or even on admission by the Defendant. It is mandatory for a Claimant to establish his entitlement to the declaration sought by his own credible and compelling evidence.
35. The Claimant asked this Court to declare among others that the Defendants have no power or right to determine his employment outside the contractual terms contained in his letter of appointment, the provisions of The Polytechnic, Ibadan Law, Cap. 124, Laws of Oyo State, 2000 and The Polytechnic, Ibadan Staff Handbook being the Conditions of Service of the 1st Defendant. In the resolution of issue 1, this Court has found and held that the Defendants complied fully with the applicable terms and conditions of engaging the Claimant in terminating his employment. I have no reason to deviate from that finding. It is also the finding of this Court that the Claimant was afforded all necessary opportunities to defend himself of the allegation leveled against; that he was given queries which he answered; that he appeared before the different Investigation Panels set up to examine the issues raised against him and that he appeared before and gave evidence at the Senior Staff Disciplinary Committee set up to advice the Governing Council on the recommendations made to it by the Investigation Panels. There is no cogent, credible and admissible evidence in support of any of the declaratory reliefs sought. My finding is that the Defendants did all that are required of them to do in the instant case. With the radio broadcast of the Claimant amorous conversation with one of his female students certainly the Defendants could not be expected to fold its arms and take no action.
36. The argument canvassed by the learned Counsel to the Claimant in support of his case smells of nothing but technicality. The fact remains that the doing of substantial justice is now the one in vogue as technicality has long been consigned to the dustbin of history. In Douye Diri v. Advanced Nigeria Democratic Party & Ors. (2020) LPELR-50947(CA) commenting on the attitude of the Court to technicality, the Abuja Division of the Court of Appeal stated thus –
" ... Indisputably, nowadays, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: "Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant's substantive right; a fair trial on the merits," see Bryan A. Garner(ed) Black's Law Dictionary (8th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The "spirit of justice does not reside in form and formalities, nor in technicalities," see Bello v. A-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried it, deeply, under the temple of substantial justice. To accede to the first respondent's request tantamounts to resurrecting the deceased technicality. This will be an affront to the law."
37. I agree totally with the position as canvassed by their lordships. I accordingly restate the fact that to accede to the declaratory prayers sought by the Claimant will amount to resurrecting the deceased and buried technicality and an affront to the law. In the wise words of the Supreme Court in C & C Construction Co. Ltd. v. Okha 1 (2003) 18 NWLR (Pt. 79) 94 –
"The Judicial process malfunctions and is discredited when it is bossed down by technicalities and is manipulated to go from technicality to technicality and thrive on technicality. That is why at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our Judicial System."
38. It is apparent now that the shift is towards the doing of substantial justice as opposed to technical justice. In order for this Court to do substantial justice in this case it must refuse and dismiss all the declaratory reliefs as sought in this case. Otherwise this Court would be doing a great injustice to the Defendants and the Victim of Mr. Kelani Ojo Omotosho Ajadi – the Claimant in particular and the entire Nigerian society n general. Accordingly, I refuse and dismiss Reliefs 1 to 11 for lack of proof by cogent, credible and admissible evidence.
39. Reliefs 12 to 16 are predicated on the success of the declaratory reliefs sought. While Relief 12 is for an order setting aside the letter of termination of appointment, Reliefs 13, 14, 15 & 16 are for orders of reinstatement, payments of earned entitlements, general damages and cost of action respectively. Relief 17 is for further or other order as the Court may deem fit to make. It is apparent that on the basis of the refusal and dismissal of the declaratory reliefs sought none of these reliefs is grantable. The foundation of these reliefs is the declaratory reliefs already refused and dismissed. As Lord Denning of blessed memory wisely pointed out in UAC v. MacFoy (1962)AC 159 one cannot put something on nothing and expect it to stay there. In a clear and unambiguous term the Enugu Division of the Court of Appeal pointed it out in Ezekiel Udu & Ors v. ASP Paul Ogwudu & Ors. (2020) LPELR-51937(CA) following CBN v. Okemuo (2018) 15 NWLR (Pt. 1642) 367 that it is a settled principle of law that where a principal relief for a declaratory order fails, any ancillary relief based on that declaratory order must fail. Accordingly, the declaratory reliefs having failed reliefs 12 to 17 must equally fail. I thus refuse and dismiss reliefs 12 to 17 as sought for absence of proof.
6. Conclusion
40. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety for lack of proof by cogent, credible and admissible evidence.
41. The Claimant is ordered to pay to the Defendants the cost of this action assessed at Two Hundred Thousand Naira only.
42. Judgment is entered accordingly.
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Hon. Justice J. D. Peters
Presiding Judge