IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

DATED THIS 29TH DAY OF NOVEMBER, 2022

                                                                                                            NICN/IL/06/2021

BETWEEN

ARC. DR. BASHIR OLAJIDE ADAMS  …………………….CLAIMANT

 

AND

1.     UNIVERSITY OF ILORIN

2.     UNIVERSITY OF ILORIN GOVERNING COUNCIL

3.     PROFESSOR SULYMAN AGE ABDULKAREEM

(Vice Chancellor, University of Ilorin)     ……………… DEFENDANTS

4.     DR(MRS) FOLARANMI MODUPE OLOWOLENI

(The Registrar and Secretary to Council, University of Ilorin)

 

REPRESENTATION

Y.A Dikko for the Claimant

N.N Adegboye with A.I. Isai and A.M Saliman to the defendants

 

INTRODUCTION:

1.      By a general form of Complaint filed on the 19th March, 2021, the Claimant claims against the defendants the following reliefs:

i.                    A Declaration that the decision reached by the 2nd defendant which led to the issuance of the letter dated 2nd day of October, 2020 compulsorily retiring the Claimant is wrongful, unlawful, illegal and unconstitutional.

ii.                 A Declaration that the trial conducted, the procedure adopted and the decisions reached by the fact finding committee, the Staff Disciplinary and Appeals Committee (SDAC) and the defendants which led to issuance of the letter dated 2nd day of October, 2020 by the 2nd defendant compulsorily retiring the claimant is unconstitutional, illegal, defective, ultra vires, null and void and unknown to the extant law.

iii.               A Declaration that the defendant’s letter dated 2nd October 2020 compulsorily retiring the claimant from service of the 1st defendant is without basis, defective, ultra vires, null and void and of   no effect whatsoever.

iv.               A Declaration that the Claimant is still in the service of the 1st defendant as the Director of Physical planning unit.

v.                  An Order compelling the defendants to forthwith reinstate the claimant to his position as the Director of the physical planning unit of the 1st defendant, restore his rights and pay him all his salaries, benefits, entitlements and other perquisites of the office from the date of his purported compulsory retirement till date of his reinstatement and thenceforth.

vi.               An Order of this Court compelling the defendants to pay the claimants all his salaries and entitlements from October 2020 until Judgment is delivered and thenceforth.

vii.             An Order compelling/directing the defendants to pay the Claimants his monthly salary of the sum of N351,295.22k per month from October 2020 until the Judgment is delivered and thenceforth.

viii.          General damages of Five Million Naira for financial inconveniences and    psychological trauma.

ix.                An Interest of 10% per month on the Judgment sum as may be awarded by this Court from the date of Judgment until same is finally liquidated

2.      The defendants entered conditional appearance on the 14th July 2021 and filed their statement of defence as well as other accompanying processes.

 

FACTS OF THE CASE

3.      The claimant was an employee of the 1st defendant, he was queried, he faced an investigative panel and a disciplinary committee after which he was compulsorily retired. This is what the claimant is challenging in this suit.

 

CASE OF THE CLAIMANT

It is the case of the Claimant as per his statement on oath dated 19th March, 2021 as follows:

4.      I am the claimant in this case and the head of the Physical Planning Unit of the 1st defendant before I was wrongfully retired by the defendants. That I was offered a temporary appointment as Chief Architect in 2008 vide a letter of Offer of Appointment dated 8th day of May, 2008 by the 1st defendant and  my appointment was subsequently regularised by the defendants in 2010 and the defendants have variously promoted me until I rose to become the deputy Director of Physical Planning Unit on 8th of October 2012.

5.      That I accepted the offer of appointment as deputy Director as directed in the letter dated 8th October 2012 and submitted same to the defendants as directed in the letter of offer. That I transferred my service to the Federal Ministry of Works, Housing and Urban Development to the 1st defendant and that on the 20th July 2018, I was promoted to the post of Director of Physical Planning Unit by the defendant; the position I held until I was unlawfully retired from the service of the 1st defendant by the defendants.

6.      That I accepted the offer of appointment as Director of physical planning unit as directed in the letter dated 20th July 2018 and submit same to the defendants as directed in the letter of offer. That pursuant to the above and by virtue of my elevation by the 1st-3rd defendant on the 20th day of July 2018, I became the administrative head of Physical Planning/Department of the 1st defendant.

7.      That my annual gross salary as the Director of Physical Planning Unit is Four Million, Two Hundred and Fifteen Thousand, Five Hundred and Forty-Four Naira (N4,215,544.00) and that my monthly salary is Three Hundred and Fifty-One Thousand, Two Hundred and Ninety Five Naira, Thirty-Three Kobo (N351,295.33k) per month. That by the letter dated 20th July 2018, I was placed on Contiss 15 Step 2 of the Consolidated University Academic Salary Structure (CONUASS).

8.      That in July, 2020, I was invited severally for discussions by the 3rd defendant and on one of the occasions; I was made to answer a number of questions in writing. Among the question asked bordered on a purported letter written to Tertiary Education Trust Fund (TETFUND). That I denied having anything doing with the letter and at this period, I was receiving treatment for neck pain and had to be on neck collar. This, the 3rd defendant alleged was a ploy for me to attract pity.

9.      In addition, I say that the 3rd defendant boasted that he would never pity me and that I must leave the University for him; and true to his vow, I was rendered redundant by the 3rd defendant and all my duties were assigned to another officer (APCO).

10. That sometimes in August 2020, the 3rd defendant invited me to his office and asked series of questions and later told me that he is tired of working with me because he claimed that I was already too confident when addressing him. He thereafter concluded his questions with threat that he will make sure I leave the University system for him.

11. That sequel to this threat, I was by a letter dated 5th August 2020 invited to appear before a fact finding Committee set up by the 3rd defendant on the 10th August 2020 and on 7th August 2020, I was invited by the 3rd defendant to a meeting of Deans, head of Departments and Directors with the Principal Officers of the University in attendance. At the meeting the 3rd defendant told the gathering that I wrote a letter of reprioritization of equipment to Tertiary Education Trust Fund (TEDFUND).

12. That just after the meeting, I was invited via phone call by the Chairman of the Fact-Finding Committee (Professor Bayo Lawal) for another meeting/discussion with the Fact-Finding Committee contrary to the letter of invitation earlier sent to me by the Committee. I attended the said meeting of the Committee.

13. That by the letter dated 5th of August 2020, the fact finding Committee was constituted by the 3rd defendant to look into the request for payment of professional fee in respect of 1,500 seater capacity lecture Theatre in the University and to unravel the source of a letter written to Tertiary Education Trust Fund (TEDFUND) on reprioritization of equipment for the year 2013-2016 annual intervention project. That I denied all allegations levelled against me by the Committee when I appeared before them.

14. That I was told by the Chairman of the fact-finding committee that the Committee interacted and interviewed some staff of the Physical Planning Unit and I was never obliged a copy of the purported letter I was alleged to have written to TETFUND at any time throughout my interaction with the facts-findings committee and/or before I appeared before the fact finding committee.

15. That immediately after my appearance before the fact-finding Committee on the 10th August 2020, I was served with a letter of Query dated 10th August 2020 signed by one T.A Bamigbose for the 4th defendant and I was required to answer same within 48 hours. I acted as directed in the query and answered same within 48 hours and by a letter dated 2nd September 2020, I was invited to appear before the Staff Disciplinary and Appeal Committee on the 10th September, 2020.

16. All the allegation levelled against me are one and the same with the allegations in the query of 10th August 2020 save that different persons signed the letters acting for the 4th defendant. That I appeared before the Staff Disciplinary and Appeals Committee on the 10th day of September, 2020 and I denied all the allegations levied against me. I was also asked series of questions by the Committee until I was told that they are through with me. That I was never obliged a copy of the purported letter I was alleged to have written to the Tertiary Education Trust Fund at any time throughout my interaction with the Staff Disciplinary and Appeals Committee and/or before he appeared before the said Committee.

17. That on the Friday, 2nd October 2020, I was served with a letter from the 2nd defendant retiring me from the service of the 1st defendant on allegation of misconduct. That in line with the University regulation, I wrote a letter of Appeal dated 2nd October, 2020 the same day I was retired via letter dated 2nd day October 2020, but I was not allowed by the defendants to submit the said letter on 5th day of October, 2020. That on the 5th day October,2020, I was forced out of the office by the agents of the defendants and I had to send my letter of Appeal via registered post. I was thereby denied the opportunity to hand over the affairs of the office to the next most senior officer.

18. When the defendants failed to reply my letter of appeal, I instructed my solicitors to write another letter of appeal to the 2nd defendant through the 4th defendant. That by a letter dated 11th January, 2021 which was received by my solicitors on the 20th January,2021, the 2nd defendant affirmed her earlier decision of compulsorily retiring me.

19. That the decision of the 2nd defendant which terminated my appointment and dismissing my appeal were reached in violation of the principle of fair hearing and in breach of the University of Ilorin Act and University of Ilorin revised edition of condition of service for Senior Staff, 2014.

20. That the 3rd defendant orchestrated my removal/retirement from the service of the 1st defendant and the whole process that led to my unlawful retirement was a ploy by the 3rd defendant to ease me out of the service on a trump up allegations.

21. I was unlawfully retired from the service of 1st defendant contrary to the provisions of the University regulations and the University of Ilorin Act. That all allegations against me were not substantiated at all but the Committees merely acted on the Script of the 3rd defendant who has vowed to edge me out of the system.

22. That the notices of invitations (letters of invitation to appear before the Staff Disciplinary and Appeals Committee and letter of Appeal before the fact finding Committee), the query issued by the defendants were issued contrary to the University Act and University of Ilorin revised edition of condition of service for Senior Staff, 2014.

23. That the 4th defendant lacks power to query me, invite me to appear before the staff Disciplinary and Appeals Committee and the whole exercise before the Staff Disciplinary and Appeals Committee was without basis and contrary to the University of Ilorin Act.

24. That the staff Disciplinary and Appeals Committee lacks power to investigate me and the 2nd defendant acted without basis in relying on the decisions and findings of the Staff Disciplinary and Appeals Committee.

25. The procedure for discipline  of Staff of the 1st defendant by the 2nd defendant who is saddled with the disciplinary power, (a) give notice of those reasons to the person in question, (b) Afford him an opportunity of making representation in person on the matter to its council (c) if he or any three member of the Council so request within the period of one month beginning with the date of notice, make arrangements (i)  for a joint committee of the council and the senate  to investigate the matter and report to the council (ii) for the person in question to be afforded an opportunity  of appearing before and being heard by the investigating committee with respect to the matter.

And if the 2nd defendant, after considering the report of investigating committee is satisfied that the person in question should be removed as aforesaid, the 2nd defendant may so remove him by an instrument in writing signed on the directions of the 2nd defendant.

26. The defendants failed to observe the above procedure but chose to act according to the script of the 3rd defendant without due basis or justification. That the process which led to my compulsory retirement was grossly a violation of the principle of fair hearing and University of Ilorin Act. That the whole process that led to the issuance of letter dated 2nd day of October, 2020 is illegal, wrongful, unlawful, ultra vires and abuse of office by the defendants.

27. That the defendants acting on the letter dated 2nd October, 2020 have stopped my salaries and entitlement since October, 2020 and up till now. That I have not reached retirement age and I have not spent 35 years in service, and I am willing to serve the 1st defendant until my retirement. The decision of the defendants terminating my appointment prematurely has caused me financial inconveniences, psychological trauma and career stagnation.

28. That the decision of the defendants unjustly retiring me from service has subjected me to ridicule and embarrassment in the University Community. A situation where the defendants’ securities were allowed by the defendants to chase me out of the office is the height of embarrassment and has caused me psychological trauma. Besides, I was prevented by the Security agents to submit my letter of appeal and asked to leave the University immediately.

29. The Claimant at trial tendered some documents which were admitted in evidence and marked Exhibits BOA1-BOA 18 .

30. Under cross-examination, the Claimant stated that ‘my letter of appointment as director of physical planning unit stated that I should discharge my duties in accordance with the directive of the V.C. it means that the V.C has the right to ask me question and interrogate me on my duties. I was invited before the fact finding committee and I made my presentation before the Committee. I was issued a query with for allegations and I responded.

31. I understood the allegation. I did not challenge the authority of the Registrar to invite me to appear before the disciplinary Committee. At the SDAC, I was asked if I had objection to any of the member of the Committee sitting in the panel and I said I had no objection. My interaction with the SCDC was in line with the query and before the panel. I did not admit that the figure 90% I gave was wrong. At the SPDC, I was asked question about the letter on Reprioritisation of equipment and I said I did not know anything about the letters. I did not give any explanation as to the signature of the V.C on top of my name and I am consistent with the writing if my name Arc. Dr Bashir O. Adams.

 

CASE OF THE DEFENDANTS

 

32. The defendants testified through its witness One Olu Mark as DW1, he stated as follows: that I am the Chief Confidential Secretary of the defendants and by virtue of my position, I am conversant with the facts of this case. That I know as a fact that the claimant was lawfully retired having been found wanting of and /or guilty of the allegation of misconduct against him.

33. That I know as a fact that the attention of the 1st defendant was drawn to some irregularities and misconducts within its physical planning unit by the claimant vide a letter written to the 1st defendant by some consultants demanding for consultancy fee in the region of N33,000,000 which the 3rd defendant knew nothing about.

34. That it was consequent upon the foregoing that an inspection team was constituted by the 1st defendant to inspect the work and or equipment supplied by the consultant vis-a viz their respective Bill of quantities. That the inspection team constituted swung into action and invited all concerned individuals including the Claimant and all consultants for meeting on 10 different occasions before inspection was conducted on the items/equipment by the consultants vis-à-vis the Bill of Quantities.

35. That at the end of the inspection conducted by the inspection team, so many irregularities were discovered and recommendations were made therefore by the Team to the Defendants in their report submitted on the 6th June 2020. That based on the Report of the inspection team, a fact finding Committee was constituted to look into the report of the inspection team and investigate same.

36. That the claimant was invited in writing to the meeting of the Fact-finding Committee vide   an Invitation letter of 5th August 2020. That at the meeting with the Fact-finding Committee, the claimant claimed to be aware of the reason behind the meeting the Fact-Finding Committee vide an Invitation letter of 5th August, 2020 and he never at any point requested for any letter from either the Committee or any other person and the issue of letter of prioritisation that was sent to TETFUND was not the only issue he was invited for, it was only one of the issues. That one of the issues was the issue of appointment of consultants by the Claimant without the knowledge of the defendants.

37. That it was discovered at the meeting of the Fact-finding Committee that the Claimant deliberately jettisoned the consortium which had earlier sent drawings to TETFUND which drawing was earlier approved by TETFUND to appoint other consultants. The Claimant admitted this before the Fact-finding Committee among others.

38. As a fact that the Claimant engaged other consultants to send drawing to TETFUND despite the fact that a consultant had earlier sent drawing to TETFUND which drawings were approved. That the Claimant engaged other consultants not only without the knowledge of the defendants but also without monitoring and/or inspecting their work and the supply of the equipment made by them until they sent a letter of demand to the 1st defendant demanding for their fees.

39. That the 2nd issue raised at the meeting of the Fact-finding Committee was the issue of letter of prioritization of 29th April, 2020that was sent to the TETFUND. As at fact that before the Fact-finding Committee, the claimant gave full explanation of why prioritization was needed, he however denied being the one that sent the letter of 29th April, 2020 to TETFUND but later admitted that soft copy of the updated Bill of Quantity in respect of prioritization was sent to him vide email by one of the consultants.

40.  I know that as a fact that another issue that was addressed by the Fact-finding Committee was the issue of conflicting reports given by the Claimant on the level of equipment supplied by the Consultants. That the claimant reported before the Council of the 1st defendant that 95% of the equipment had been supplied by the Consultants, however, the Fact-finding Committee the Claimant reported that 90% of the equipment supplied while by the inspection conducted by the Inspection team and finding of the Fact-finding Committee, it was discovered that only 22.3% of the equipment were supplied by the consultants.

41. That the claimant failed in its duty to supervise, inspect and monitor the projects, contracts, supplies and the works consultants engaged by him. That I know that his failure as a Director of Physical Planning of the 1st defendant to supervise, inspect and monitor the projects, contracts, supplies and works of the 1st defendants resulted in supply of many equipment were undersupplied and some of the equipment contained in the Bill of Quantity were not even supplied at all.

42. The fact the after the inspection by the Inspection team by visiting the Departments to conduct physical inspection on equipment, various Departments sent Internal Memoranda the director of Audit to comment on the equipment. That for the Department of Microbiology, some of the equipment did not meet specification quoted for TETFUND in the Bill of Quality while 2 out of 7 equipment requested were supplied.

43. I know as a fact that the Department of medical Biochemistry, some of the equipment did not meet specification quoted for TETFUND in the Bill of Quantity while 2 out of 7 equipment requested were supplied. That I know as a fact that for Department of Medicine, the key components of the stress Machine supplied were missing.

44. That for the Department of Nursing Science11 out if the 20 Equipment listed for supply were supplied while 9 were not supplied. That a fact that for the Department of Chemical and Immunology, some of the equipment on the Bill of Quantities were supplied but he did not meet specification and some were not supplied at all. That I know as a fact that the Department of Anatomy , some equipment supplied were not in Bill of Quantities and some equipment which were on the Bill of Quantities were not supplied at all.

45. That I know that for the Department of Physiology, none of the equipment listed in the Bill of Quantities were supplied and that for the Department of Haematology, some equipment were supplied but did not meet specification while some equipment which are on the Bill of Quantities were not supplied, that for the Department of pathology, some equipment supplied did not meet specification while some listed on Bill of Quantities were not supplied at all.

46. That none of equipment/item listed on the Bill of Quantities for supply in the Department of Pharmacology &Therapeutics were supplied. That for a fact the equipment listed on the Bill of Quantities for supply in the Faculty of Basic Medical Science were not supplied. That the Department of Human Kinetic Education, none of the equipment supplied me with specification on the Bill of Quantities.

47.  As a fact that the overall tabular presentation of the equipment to be supplied was done after the inspection, the actual supplied items were identified and the percentile analysis supplied and not supplied items was done. I know as fact that after the consideration of the Reports of the Inspection Team and the Fact-finding Committee vis-a-viz complaint, of the various Departments of the 1st defendants to the Auditor, the defendants issued query to the claimant in compliance with the Condition of Service.

48.  I know that the claimant answered 4 heads of the allegations of misconducts contained in the Query of 10th August, 2020. That the Claimant’s response to the Query of compliance with the Condition of Service of the Defendants and the principle of fair Hearing, he was invited vide a letter of invitation dated 2nd September, 2020 to appear before the Staff Disciplinary and Appeal Committee of the Defendants on the 10th September 2020.

49. That the sequence to the invitation to appear before Staff Disciplinary and Appeal Committee, the Claimant appeared before the Committee and the Claimant responded that he is aware having been queried on 4 allegations of misconduct. That the Committee gave the Claimant adequate opportunity to present his side of the case in relation to the allegations of misconduct and the claimant admitted some of the allegations that were levied against him and denied some of it.

50. That from the fact elicited by the Fact-finding Quantities on prioritization received by TETFUND was given to the Fact-Finding Committee by one of the contractors to the claimant who claimed to have received same from the claimant. That for a fact that the issue of letter of prioritization was only one of the 4 allegations against the Claimant was not based on the letter of prioritization. That I know as fact that during the course of the proceedings of the Staff Disciplinary Committee of 10th September, 2020, a video recording was done from a digital and electronic video recorder.

51. That I know as a fact that after the meeting of Disciplinary Committee of 10th September, 2020 a report of the said meeting was prepared and that a letter was served on the claimant on the 2nd October 2020 retiring him. That as a fact that the decision to issue letter of 2nd October 2020 on the Claimant was reached by the defendants based on the Reports of the Inspection Team, Fact-finding Committee and of Course the Report of the Staff Disciplinary Committee.

52. That the Claimant’s letter of appeal and that of his solicitor was received and that the appeal of the Claimant was determined and the outcome of same was communicated to him through his counsel in the Defendant’s letter of 11th January, 2021. I know that the decision of the defendants contained in the letters of 2nd October, 2020 and one of 11th January 2021 complied with the Conditions of Service and regulations of the defendant.

53. I know as a fact that the allegations against the claimant were proved beyond iota of doubt and that the claimant admitted some of the allegation before the Fact-finding Committee and the Staff Disciplinary Committee. I know that the Notices of Invitations and the Query were issued in compliance with the University of Ilorin Act and the Condition of Service of the 1st defendant.

54. That the defendants acted within the provision of the 1st defendant’s regulation in reaching the decisions retiring the claimant from the services of the 1st defendant. That the decision of the defendants retiring the Claimant from the services of the defendants complied with the extant laws and regulations, conditions of service of the 1st defendant, University of Ilorin Act and the Principle of fair hearing

55. That as a fact, the defendants acted within the Provisions of the University of Ilorin Act, the Condition of Service, the extant laws, rules and regulations and the principle of fair hearing in coming to decision retiring the Claimant from the services of the defendants. I know as a fact that the decision reached by the defendants retiring the claimant from the services of the 1st defendant is just, lawful and in accordance with the extant regulations and as such the Claimant is not entitled to salary having been lawfully retired from the services of the defendant.

56. DW1 at trial sought to tender some documents in evidence which were admitted and marked Exhibits OM4-OM18, OM20. Exhibit OM21 is deemed to be admitted by consent of parties.

57. During Cross-Examination, DW1 stated thus-‘The Vice Chancellor is not the Admin of the University. DVC and Registrar also. One of the offences of the Claimant is that he misled the University administration. Professor B.I Sule is the DVC management services. He was put in charge of SDAC that interfered with the Claimant after the two Committees have submitted the reports (SDAC is Staff Disciplinary and Appeal Committee). The Query issued to the Claimant was based on the report of the Inspection team, the fact finding Committee and the various memos from the defendant that complained about the equipment and furniture supplied. Exhibit BOA 8 made an error in referring to a Report instead of Reports. Exhibit BOA7 was issued on 19/8/2020. Exhibit BOA8 is dated 10/8/2020. From the Exhibits BOA18, the name of the claimant was not reflected there, the name of the Chief Store officer who should be before the SDAC is Bashir Olatunji Tiamiju. It is the same store officer who wrote Exhibit BOA18.

 

DEFENDANTS FINAL WRITTEN ADDRESS

58. The Defendants filed his final written address on the 17th June, 2022 and later refiled same on the 1st August 2022. Defence counsel formulated a sole issue for the determination of the Court viz:

Whether from the facts and circumstances, evidence led in this case, the case of the claimant is liable to be dismissed.

59.  Counsel addressed the issue based on the following points:

i.                    Whether the Claimant’s Right to Fair hearing was breached in the process that led to his retirement from Defendants’ employment.

ii.                 The issue as to the Commission of the acts of misconducts.

iii.               Whether the reliefs of the Claimant could be granted upon the admission to some allegations of misconducts.

60. On point 1, counsel submitted that the right to fair hearing of the Claimant was not in breach in the process that led to the issuance of Exhibit OM23. That the Claimant confirmed under cross-examination to have been invited before the fact-finding Committee set up of the defendants, he was given query and he understood every allegations of misconducts levied against him, he answered the query and was invited to the SDAC. Counsel submitted that the proceeding that led to the issuance of Exhibit OM23 was not in breach of the Claimant’s right to fair hearing. He cited the cases of Maliki v Micheal Imodu Institute for Labor Studies [2008] LPELR-8467 (CA). Ayoade v State [2020] LPELR-49379 SC.

61. Counsel argued that the Claimant failed in the entire pleading to link any of his complaint of wrongful and unlawful retirement to any event that occurred in the process that led to the issuance of Exhibit OM20. He then submitted that the issues raised against the notice, query and the composition of the SDAC is an afterthought and urged the Court to hold so. He cited the case of PDP &Ors v Aminu &Anor [2019] LPELR-47330(CA).

62. On point 2, Counsel submitted that the Court cannot look into whether or not the Claimant has committed the alleged act of misconduct because it forms part of the internal issues or power of the University and that the only thing the Court can look at is whether the proceeding of the SDAC leading to the dismissal followed the laid down process, he cited the case of Bamigboye v University of Ilorin [1999] 10 NWLR (PT 622) 290 @348 and relied on Exhibit OM21.

.

63. On point 3, it is the submission of counsel that the law is trite that the onus of the case rests on the claimant in discharging the evidential burden by leading credible and material evidence. That in this case, the claimant has failed to do so, he cited the case of Lipede v Sonekan [1995] 1 NWLR (Pt.374) 668 at 689.  Counsel argued that some contradictions elicited from cross-examination of the claimant is clear beyond peradventure that the facts pleaded by the Claimant are at variance with the evidence on record, he cited the case of Adeojo v Ojo & Anor [2021] LPELR056205 CA.  He concluded that the claimant having not only contradicted himself but also failed to lead credible evidence, he is not entitled to the reliefs sought.

 

CLAIMANTS WRITTEN ADDRESS

64. The Claimant filed his final written address on the 26th August 2022 and raised three issues for the determination of the Court:

i.                    Whether the failure of the defendant to strictly follow the disciplinary procedure laid down in Section 16 of the University of Ilorin Act and Paragraph 8.7.1 of the University of Ilorin Revised Condition of Service for Senior Staff 2014 relating to the Discipline of the Claimant and subsequently retiring the claimant prematurely amount to a nullity and breach of the Claimant’s right to fair hearing.

ii.                 Whether the Claimant Committed the offence.

iii.               Whether the Claimant is not entitled to the reliefs sought.

65. Counsel raised a preliminary issue in his written submission. He contended that Exhibit OM16, the CTC of the Tabular form of the overall equipment that was supplied was not signed nor dated hence it should be discountenanced, he cited the case of Omega Bank Nigeria Plc v. O.B.C Ltd [2005] 8 NWLR (Pt.928) 547 at 576, para E-F.

66. On issue one, Counsel submitted that the appointment of the Claimant is regulated by the University of Ilorin Act and being a senior staff of the University, the discipline of the Claimant is also a matter regulated by the Revised Conditions of Service of Senior Staff 2014 (Exhibit BOA17), therefore the claimant’s employment enjoys statutory flavour.  He cited the cases of Ahmed v A.B.U & Anor [2016] LPELR-40261 ta 16-17, para D-B, Olufeagba v Abdul-Raheem [2009] 18 NWLR (Pt1173) 384, Mega people party v INEC [2015] 18 NWLR (Pt 1491) 251.

67. Counsel contended that the defendants failed to follow and observe the provisions of Section 16 of the University of Ilorin Act in the process that led to the premature retirement of the Claimant, he referred to pages 58-59 of the University of Ilorin Revised Condition of Service for Senior Staff (Exhibit BOA17), Section 16(a) of the University of Ilorin Act.  He continued that the defendants failed to comply with the provisions of the Act as the Claimant did not make proper representation of himself before the Council. He submitted that the entire proceeding that led to the retirement of the claimant is like a pack of cards, must fail and remains a nullity. He placed reliance on the case of Sylvanus Eze v University of Jos [2021] 2 NWLR (Py1760) 208 at 227 para A-C.

68. Counsel also argued that the Claimant was denied fair hearing by Section 36 of the 1999 Constitution as amended, that the rights of the claimant was trampled upon by the defendant in a matter leading to the retirement of the Claimant which cannot stand in law. He cited the case of Sylvanus Eze v University of Jos [2021] 2 NWLR (Pt1760) 208 227 and that the failure to observe the principle of fair hearing by the defendants renders the whole process that led to the retirement of the Claimant void.

69. On issue two, it is the submission of counsel that the facts and circumstances of this case, all the allegations levied against the claimant are without basis in that by Exhibit BOA8, the university claimed to have received report indicting the Claimant of misconduct. He continued that the defendant received no report specifically alleging the claimant with any allegation in the query and that the query was issued in anticipation of the expected outcome of the investigation.

70. He continued that the decision of the defendant to retire the claimant cannot be substantiated at all and the defendants merely orchestrated the alleged misconduct against the Claimant and Exhibit OM16 was concocted by the defendants. it is incumbent on the defendants to show via evidence that the claimant was/in guilty of misconduct in this case.

71. On issue three, Counsel submitted that the whole action that crystallised to the retirement of the Claimant was conducted ultra vires and without any regard whatsoever for the procedure provided for in the statute and as such, non-compliance is fatal and the entire process is null and void, he cited the case of Nasarawa State Univeristy v Nekere [2018] LPELR-44550 at page 42. That following from the above, the entire process is to be declared null and void, the Claimant cannot be denied the reliefs sought. He cited the case of University of Nigeria Teaching Hospital Management Board  v Hope Chinyelu Nnoli [1994] 10 SCNJ at P.92

 

DEFENDANT’S REPLY TO THE CLAIMANT’S WRITTEN ADDRESS

 

72. On the admissibly of Exhibit OM16, Counsel submitted that Exhibit OM16 does not require signing being a Certified True Copy. He placed reliance on the cases of Ahmed V CBN [2013] 11 NWLR (Pt1365) 332 at 160, Sanusi &Ors v Iseku &Ors [2017] LPELR-43160 (CA)

73. Counsel also submitted that the statutory flavour of the claimant is not in contention, hence the argument is  unnecessary and superfluous.

74. Counsel also submitted that the claimant did not say query was not issued to him throughout the whole of his pleadings, neither did he say he did not appear before the SDAC, that his only complaint was that Exhibit BOA8 was  not given to him. Counsel relied on Paragraph 18 of Exhibit BOA11 and submitted that the claimant has failed to link his case with the provisions of Section 16 of the University of Ilorin Act.

75. Counsel also submitted that the claimant answered the Exhibit BOA9 and never challenged the proprietary or otherwise. He cited the case of Ukwuyok & Ors v Ogbulu &Ors [2019] LPELR-48741 (SC).

76. The next requirement is to afford him the opportunity of making representation in person on the matter before the Council, the Claimant never complained that he was not invited before the Council, his complaint was that the invitations were issued contrary to the provision of the University of Ilorin Act. However, the provision of the Act contravened was not stated.

77. On the power of the Registrar to sign query and notice of invitation, counsel cited Section 6 of the 1st Schedule of the University of Ilorin Act, that the Registrar is the Secretary to the University Authority and by virtue of office is the person to sign the query and notices of invitation since those are correspondence between the Claimant and the 1st defendant.

78. On the breach of Section 36 of the 1999 as alleged, counsel submitted that the Court should overlook the argument of the claimant on Exhibit BOA13 and on Exhibit BOA 8, the 4th defendant was never the claimant’s accuser but was just performing his statutory duties by Section 6 of the 1st Schedule of the University’s Act.

79. Counsel submitted that the argument that no report was received by the Claimant’s counsel is baseless and incorrect. The Claimant failed to show convincingly that he never committed the allegation and that he admitted some allegations against him and was given opportunity to state his case, challenge the panels is need be, before his appearance which he failed to so do.

 

COURT’S DECISION

80. Having read the pleadings, evidence, both oral and documentary, and the final written addresses of both counsel, it is the view of this court that the lone issue for determination is whether the claimant was afforded fair hearing in the processes leading to his compulsory retirement.

81. The claimant and his counsel have laid so much emphasis on whether or not the claimant committed the offence alleged against him. Let me out rightly agree with the submission of the defendants counsel against this contention, relying on the case of Bamigboye v University of Ilorin [1999] 10 NWLR (PT 622) 290 @348.

 

82.  It should be noted, as rightly submitted by the defendants counsel, that discipline and the procedure is a domestic affairs of the 1st and 2nd defendants. This court has no jurisdiction to sit on appeal over such decision to determine whether or not the claimant committed the offence as charged. The limited jurisdiction of this court, as an arbiter, is to determine whether or not the defendants followed the principle of fair hearing, the rule of law, and especially the University Act and the University Regulations in the entire disciplinary proceedings.

83. The claimant alleges that in the process leading to his compulsory retirement as a punishment, the defendants did not follow due process. The violations, as alleged by the claimant are;

1.     Violation of section 16 of  the  University of Ilorin Act.

84. Section 16 of  the  University of Ilorin Act  provides as follows;

 

16.   Removal of and discipline of academic, administrative and professional staff

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

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

       (b)        afford him an opportunity of making representations in person on the matter to the Council; and

       (c)        if he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements

       (i)        for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; and

       (ii)        for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter,

and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

85. Based on the above provision, insisting that it is the process to be followed, particularly section 16(1) (c), the claimant contends that the defendants failed to observe the above procedure and so the staff Disciplinary and Appeals Committee lacks power to investigate him and the 2nd defendant acted without basis in relying on the decisions and findings of the Staff Disciplinary and Appeals Committee.

 

 

86.  The provision of section 16 of University of Ilorin Act contemplates a disciplinary procedure where the removal of an officer is contemplated. The claimant appears to insist on section 16(1) (c) which by its language is not a must. It says if he or any three members of the council so request… for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council. It is not a sine quanon and the claimant has not shown that he or any three members of the council so requested. The investigative panel earlier set up by the 3rd defendant, though not a sine quanon either, was sufficient.

87. What the defendants did was to first set up an investigative panel which is different from a disciplinary panel. The two are not the same. An investigative panel is merely a fact finding panel. An officer cannot be removed on the report of an investigative panel, contrary to what section 16(1`) (c), which claimant insists on, would appear to suggest. An investigative panel cannot even punish an erring employee. The best an investigative panel can do is to recommend, in its report, actions the institution should take in line with statutory provisions. The employer would normally need to set up a disciplinary panel to determine the guilt or otherwise of the employee. See

FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA V. DANJUMA MAIWUYA & ORS. (2010) LPELR-9001(CA) where the court held;

 

The law is that a public officer against whom such allegation of serious misconduct is laid, cannot be removed without being heard. In the instant case, there was an investigative panel set up to investigate the 12th June 1996 incident in the University. This Panel was purely investigative.

It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. State Civil Service Commission Vs. Buzuqbe (1984) 7 SC Pg 19. 

 

89. The setting up of an investigative panel or approval thereof is a function that the 3rd defendant can so approve as part of his functions under section 8 (2) of  University of Ilorin Act which provides as follows;

8.   Functions of the Vice-Chancellor

(2)  Subject to sections 6, 7 and 14 of this Act, the Vice-Chancellor shall have the general function, in addition to any other functions conferred on him by this Act or otherwise, of directing the activities of the University, and shall to the exclusion of any other person or authority be the Chief Executive and Academic Officer of the University and ex-officio Chairman of the Senate.

90. As far as the procedure in section 16 of the Act is concerned, I find no violation thereof by the defendants as it is the evidence of the claimant that he was queried, he responded, he was invited to appear before the disciplinary committee which he did before the verdict was reached and that the charges before the disciplinary committee were the same as those in the query.

 

2.      That the 4th defendant acted without power or authority to invite him to appear before the staff Disciplinary and Appeals Committee.

 

91.  It is the contention of the claimant that the 4th defendant lacks power to query me, invite me to appear before the staff Disciplinary and Appeals Committee and the whole exercise before the Staff Disciplinary and Appeals Committee was without basis and contrary to the University of Ilorin Act.

 

92. In the first place, given that the 4th defendant is the Registrar and the Registrar is the secretary to the 2nd defendant, a letter from him is in his official capacity as secretary of the 2nd defendant and not in his personal capacity. See section 6(2) of the first schedule to the University of Ilorin Act which provides that the person holding the office of the Registrar shall by virtue of that office be Secretary to the Council, the Senate, Congregation and Convocation.

93. Accordingly, the issuance of query and invitation by the 4th defendant, the Registrar, is not done in his personal capacity but as part of his statutory function as provided for in the first schedule of University of Ilorin Act, section 6(2) .I find and hold that the 4th defendant had the power to issue queries and invitations to the claimant as done in this case.

 

3.     That he was not given the letter that he was alleged to have written to TETFUND.

94. One other contention of the claimant is that he was not given the letter that he was alleged to have written to TETFUND.

For a start, the claimant was invited by a letter dated 5/8/2020 (exhibit BOA6) to an interaction with a fact finding committee on the issue of the said letter and one of the documents he was expected to bring with him , listed as number iii, was Letter to TETFUND on prioritization of Equipments components.

95. The claimant was queried by a letter dated 10/8/2020 (exhibit BOA 8) and he answered the query on 12/8/2020 (exhibit BOA9) the issue of the letter to TETFUND was not raised. The letter of invitation to appear before the Staff Disciplinary and Appeals committee (exhibit BOA10) repeated the issues in the query as the charges, once again, the issue of the letter to TETFUND is not among. That should have settled the case.

96.  The twist however, is that on page 6 of the report of the SADC (exhibit BOA11), the claimant was questioned on the said letter. At page 18 of the said document, the committee made eight findings and observations, seven are related to the charges and the eight observation related to the said letter thus;

Though it could not be established that Arc. DR. Bashir Olajide Adams authored the letter dated 29/4/2020, written from the University of Ilorin to TEDFUND on prioritization of equipment, he was found the most culpable of the contractors, consultants and himself.

 

97. These findings were followed by the recommendation of the committee at page 19 which recommends termination or retirement. Now, can it be said that this eighth observation found him guilty of an offence not in the charge? Did it form the basis or part of the basis of the recommendation to the council? If that finding is quashed, is there anything left in the findings of the committee upon which its recommendation to the council could still stand?

98. It is my firm view that even if the first two questions are answered in the positive, the third question will be answered in the negative because there are seven other findings on the charges before the disciplinary committee which are damaging and can sustain the recommendation to the council.

 

4.     That the decision of the 2nd defendant which terminated my appointment and dismissing my appeal were reached in violation of the principle of fair hearing and in breach of the University of Ilorin Act and University of Ilorin revised edition of condition of service for Senior Staff, 2014.

99. In support of this contention, learned claimant counsel submitted in his final written address that the defendants failed to comply with the provisions of the Act as the Claimant did not make proper representation of himself before the Council (2nd defendant). For a start, this is evidence from counsel in written address as it was not part of the pleadings and evidence of the claimant. The law is now trite that submission of counsel cannot take the place of evidence. Counsel cannot give evidence in his final written address.

100.       Counsel did not state the basis for this contention. What law or Regulation required that the claimant be heard by the 2nd defendant before it takes its decision based on the report of the disciplinary committee is still left in the breast of counsel, (besides the fact that the evidence of the claimant did not say so) probably reserved to be laid open before the appellate court and there it shall remain.

 

101.         For all the above, I find that the claimant did not prove his case and the case is accordingly hereby dismissed for want of merit. I make no order as to cost.

102.         This is the judgment of the court and it is entered accordingly.

 

 

……………………………………..

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE