IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 15^TH FEBRUARY, 2024                                      

SUIT NO: NICN/UY/04/2022

 

BETWEEN:

 

DR. (MRS) MARY S. NDAH          ………                CLAIMANT/RESPONDENT

 

AND

 

1. AKWA IBOM STATE POLYTECHNIC,

    IKOT OSURUA

2. BAR.EKPENYONG NTEKIM                            DEFENDANTS/APPLICANTS

    (For himself and on behalf of the members of

     the Governing Council, Akwa Ibom State

Polytechnic)   

                                           

REPRESENTATION:

 

A. A. ASUQUO WITH MFONOBONG OKON AND EKOMOBONG ANDREW FOR THE CLAIMANT

NSIKAK EFFIONG FOR THE DEFENDANTS

 

JUDGMENT

 

On 20^th January, 2022, the Claimant filed an Originating Summons pursuant to Order 3, Rule 3 of National Industrial Court (Civil Procedure) Rules, 2017, Section 6 (2), (5), 13 (1) (b) of the Polytechnic Law, Cap 94, Laws of Akwa Ibom State and Section 36 (1) of the Constitution of the Federal Republic Of Nigeria 1999 (As Amended) against the Defendants praying for the determination of the following questions:

 

(1)      Whether by the 1^st Defendant's Law, her Governing Council had powers to have set up a Committee for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning' Centres which members of the Committee were selected from persons outside the Governing Council of the 1^st Defendant with powers to investigate the Claimant, a principal officer of the 1^st Defendant.

 

(2)      Whether the 2^nd Defendant was right when it met as a Council of the 1^st Defendant, received the report of the Committee mentioned in question (1) above, suspended the Claimant from office as the Registrar of the 1^st Defendant, invited her to a Committee of Council for the purpose of confronting her and demanding her to clear herself from the allegations contained in the purported Report of the Committee mentioned in paragraph (1) above.

 

(3)      Whether by the Law establishing the 1^st Defendant, the 2^nd Defendant as presently constituted can exercise the duties and functions of the Council of the 1^st Defendant outside the statutory membership of five (5) to form a quorum for the sitting of the Council of the 1^st Defendant.

 

(4)      Whether this Honourable Court can set aside the proceedings and recommendations of the purported Committee set up by the 2^nd Defendant for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres, 2009-2013 as well as declare null and void the letters issued to the Claimant by the 2^nd Defendant, inviting her to appear for the purpose of defending herself based on the report of the purported Committee herein earlier mentioned.

 

In the determination of these questions, the Claimant sought for the following Reliefs:

 

(a)       A DECLARATION that by the Law setting up the 1^st Defendant, her Governing Council cannot set up any committee either for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of hers from the Defunct Distant Learning Centres, 2009-2013 or for any other reason with members of such committee(s) drawn exclusively outside the members of the Governing Council of the 1^st Defendant.

 

(b)      A DECLARATION that the 2^nd Defendant was wrong in purportedly receiving the report of the Committee set up by her as per (a) above for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of the 1^st Defendant's Defunct Distant Learning Centres, 2009-2013, suspended the Claimant from office as the Registrar of the 1^st Defendant, invited her to a Committee of Council for the purpose of confronting her with the recommendations of the earlier Committee made up of members outside the Governing Council of the 1^st Defendant.

 

(c)       A DECLARATION that by the Law establishing the 1^st Defendant, the 2^nd Defendant as presently constituted cannot exercise the duties and functions of the Council of the 1^st Defendant outside the statutory membership of five (5) members to form a quorum for any decision taking.

 

(d)      A DECLARATION that the 2^nd Defendant having failed to comply with the provisions of the Law establishing the 1^st Defendant, all actions taken by her touching on and relating to the setting up of all the Committees of the Council of the 1^st Defendant, the invitation of the Claimant to submit to those Committees including the purported suspension of the Claimant are null and void, ab initio.

 

(e)       AN ORDER that by the Law setting up the 1^st Defendant, the Governing Council of the 1^st Defendant can only set up Committee(s) of its members and delegate to them such of its powers as it may deem fit and not a Committee with members drawn from outside of the Council.

 

(f)       AN ORDER that the setting up of a Committee by the 2^nd Defendant for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres, 2009-2013 comprising of members outside the Council was a nullity and so all the recommendations of the said Committee be set aside.

 

(g)       AN ORDER that the 2^nd Defendant's action, purportedly constituting itself into a Committee and inviting the Claimant, a principal officer of the 1^st Defendant to appear and answer to the recommendations of its earlier Committee made up of members outside the Council is ultra vires the functions of the 2^nd Defendant and an affront to the Law.

 

(h)      AN ORDER that the 2^nd Defendant consisting of only three (3) members cannot by the Law of the 1^st Defendant sit as a Council for the purpose of taking decisions that can be binding on the 1^st Defendant. The quorum for the meeting of the Council of the 1^st Defendant being five (5) members of the Council.

 

(i)       AN ORDER quashing and declaring null and void, the proceedings of the Committee set up by the 2^nd Defendant for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of the Defunct Distant Learning Centres, 2009-2013, the proceedings of the purported investigation Committee of Council of the 1^st Defendant presided over by the 2^nd Defendant as the Chairman held on 21^st, 23^rd December, 2021 and 10^th January, 2022 for lack of quorum, he being the only statutory board member in attendance.

 

(j)       AN ORDER setting aside the purported suspension of the Claimant from office and restoring her as the Registrar of the 1^st Defendant as well as restoring her salaries and all the entitlements accruing to the office of the Registrar of the 1^st Defendant.

 

(k)      AN ORDER of perpetual injunction restraining the Defendants jointly and severally by themselves, their agents, servants, privies or howsoever and in whatsoever name called from further suspending the Claimant from office as the Registrar of the 1^st Defendant.

 

(1)      Any further (orders) as the court may deem fit to make in the circumstances.

 

In support of the Originating Summons, the Claimant filed a 10 paragraphs affidavit with 3 Exhibits deposed to by the Claimant and a written address settled by A. A. Asuquo in accordance with the rules of this court. In their reaction and by the leave of court on 10^th March, 2022, the Defendants filed a Counter-Affidavit of 41 paragraphs  with 37 exhibits deposed to by Aniefiok Affiah (Deputy Registrar of the 1^st Defendant) and a written address settled by Nsikak E. Effiong. In response, the Claimant by leave of court on the 20^th June, 2022 filed a Further Affidavit of 4 paragraphs deposed to by Edidiong Ekong with 1 exhibit. By leave of court on 9^th November, 2023, the Defendants were allowed to amend their Counter Affidavit which they filed on the 20^th November, 2023. The Counter Affidavit of 44 paragraphs and 38 Exhibits was deposed to by Aniefiok Affiah (Deputy Registrar of the 1^st Defendant). On the 30^th November, 2023, the Claimant responded by filing a Further Affidavit of 8 paragraphs, 1 Exhibit and a written argument. The parties then adopted their Final Written Addresses on 5^th December, 2024.

   

CASE OF THE CLAIMANT

 

The case of the Claimant as can be deduced from her affidavit in support of the Originating Summons is:

 

(1)      That until 7^th December, 2021 when she was purportedly suspended from office, she was the Registrar and the principal officer of the 1^st Defendant.

 

(2)      That on 13^th September, 2021, the 2^nd Defendant inaugurated a Committee to Review the Issuance of Statement of Results/Certificates to supposed Graduates of the Defunct Distant Learning Centres of the 1^st Defendant from 2009 - 2013.

 

(3)      That the Committee which was made up of members outside the Governing Council of the 1^st Defendant, submitted her report dated 23^rd November, 2021 (Exhibit 1) to the 2^nd Defendant.

 

(4)      That on receipt of Exhibit 1, the 2^nd Defendant met as a Council and issued a letter suspending the Claimant from office (Exhibit 2) and invited the Claimant by Exhibit 2A to appear before the Committee of the Council tagged “the Investigation Committee of the Council.”

 

(5)      That by a letter dated 14^th December, 2021, the Claimant was invited to appear and defend the recommendations of its earlier Committee, while the 2^nd Defendant sat as the Committee of the Governing Council of the 1^st Defendant.

 

(6)      That in furtherance of paragraph 5 above, proceedings were conducted on 21^st, 23^rd December, 2021 and with the proceedings of 10^th January, 2022 adjourned to 19^th January, 2022 which unfortunately the Claimant’s Solicitor could not attend because of the hearing notice to appear at the Court of Appeal, Calabar on the same date.

 

(7)      That the case of the Claimant against the Defendants can be summarised in the following terms:

 

(a)       That the Committee of the 2^nd Defendant that comprised of members drawn outside the Governing Council was a Committee constituted outside the Law of the 1^st Defendant.

 

(b)      That based on the fact in paragraph 7 (a) above, the earlier Committee of the 2^nd Defendant had no power or jurisdiction to have sat and produce the recommendations it made to the 2^nd Defendant.

 

(c)       That the Law of the 1^st Defendant does not empower the 2^nd Defendant to have received the report of its earlier Committee and thereafter constitute itself into another Committee of the Council for the purpose of trying me, a principal officer of the 1^st Defendant.

 

(d)      That the 2^nd Defendant as constituted has no power under the Law of the 1^st Defendant to sit as a Committee for whatever reason as quorum for the meeting of the 2^nd Defendant is 5 members, yet the 2^nd Defendant continuously sat, comprising of one (1) member, the Rector having been disqualified on 23^rd December, 2021, having been invited to appear and testify in that proceedings. The other member not being a council member by virtue of the fact that she is the Permanent Secretary of the Ministry of Education, Akwa Ibom State and not a Technical Officer of the Ministry as contemplated by Law.

 

(8)      That this court can declare the report contained in Exhibit 1 a nullity, set aside the proceedings of the 2^nd Defendant that held on 21^st, 23^rd December, 2021 and 10^th January, 2022 as well as set aside all the actions therefrom.

 

(9)      That this court can restore the Claimant to her office as the Registrar as well as restore her entitlements and declare all action taken by the Defendants invalid, null and void.

 

(10)    That the court is therefore invited to interpret the various provisions of the Law setting up the 1^st Defendant and to set aside the various inactions and abuse of the law by the 1^st and 2^nd Defendants.

 

CASE OF THE DEFENDANTS

 

The case and defence of the Defendants can also be deduced from the Amended Counter Affidavit in the following terms:

 

(1)      The Claimant is an employee of the 1^st Defendant, initially employed as Lecturer 1 in the Civil Service of the Government of Akwa Ibom State. She rose through the ranks to the position of Deputy Registrar (Academics), a position she occupied for a considerable long time, until she was elevated and promoted to the post of Registrar/Secretary to Council.

 

(2)      Prior to the promotion of the Claimant to the last two (2) offices she occupied, the 1^st Defendant was among the polytechnics operating and controlling study centres across the country, otherwise called Distant Learning Centres. However, by a directive of the Federal Executive Council, through the National Board for Technical Education (NBTE), the 1^st Defendant was peremptorily ordered to close down all outreach centres.

 

(3)      The directive or order to proscribe all study centres was not immediately obeyed by the 1^st Defendants leading the National Board for Technical Education (NBTE) to write again for the 1^st Defendant to immediately close all satellite campuses or Distant Learning Centres.

 

(4)      The National Board for Technical Education (NBTE) also directed the 1^st Defendant to publish a disclaimer of these campuses in at least two (2) national dailies within two (weeks) of receipt of the letter.

 

(5)      In compliance with the above directive, the Governing Council of the 1^st Defendant decided to allow students of the Distant Learning Centres who had begun their programmes of study before the directive of the Federal Executive Council to round off their studies giving 2008 as the terminal date of all Distant Learning Centres.

 

(6)      The 1^st Defendant also caused a disclaimer of all Satellite campuses and study centres across the country to be published in five (5) dailies between March, 2007 and July, 2007 vide Exhibits "ON3", "ON4", "ON5", "ON6" and "ON7".

 

(7)      The 1^st Defendant, after its publication of a disclaimer, also wrote to the Commissioners of Police and Directors of State Security Services of various states vide Exhibits "ON8" and "ON9", notifying them of the proscription of its Distant Learning Centres and calling for vigilance.

 

(8)      The 1^st Defendant promptly compiled all the publications and wrote to the Executive Secretary of the National Board for Technical Education (NBTE) notifying him of its compliance with the directive.

 

(9)      The 1^st Defendant also constituted and inaugurated a committee, internally, known as the Committee on Distance Learning Programme with the task of carrying out a comprehensive review of the profile of students of study centres and their Results for presentation to the Academic Board for approval.

 

(10)    At the time of publication of the disclaimer notices against all Distant Learning Centres, Barr. Israel B. Affia and the Claimant were principal officers of the 1^st Defendant as the Deputy Registrar (Academics) and Director and Head of Department respectively.

 

(11)    Barr. Israel B. Affia was appointed the Rector of the 1^st Defendant and together with the Claimant, still Deputy Registrar (Academics) surreptitiously and in clear violation of all academic jointly colluded and issued Results and Certificates to students of the proscribed Distant Learning Centres, from 2009-2016 after the institution had openly and publicly published a disclaimer of all distant learning programmes.

 

(12)    It was during the period from 2013-2018 that, the Claimant and Barr. Israel B. Affia connived to abuse the privileges of their office by issuing certificates to students of the defunct Distant Learning Centres from 2009 after proscription without vetting and approval of results by the Academic Board.

 

(13)    This academic fraud was committed with impurity and ignominy that, the Results and Certificates were unilaterally and arbitrarily issued without submission to and vetting by the Academic Board, which is the highest on academic matters.

 

(14)    These academic fraud came to the fore following a petition by a student of the Distant Learning Centre demanding for the release of his HND Certificate, many years after graduation and on the basis of which the current Rector, Dr Moses Umobong wrote to the Claimant demanding for explanation.

 

(15)    The Claimant in her reply admitted complicity in the signing of Statement of Results of not just the student who petitioned but many others based on the directive of the former Rector, Barr. Israel B. Affia whom she did not want to "disobey" even when both of them, as principal officers of the institution, were involved when the decision to proscribe the distant learning centres was taken from 2009, 2010, 2011, 2012, 2013, and 2016.

 

(16)    Arising from her response, the Rector of the 1^st Defendant vide Exhibits "ON24" and "ON25" issued a query to the Claimant and one Ms Nse O. Eyen directing both of them to provide the Academic Board approvals authorizing the issuance of Statement of Results/Certificates of students of the distant learning programmes after proscription in 2008.

 

(17)    The only document the Claimant produced for this academic fraud was a slip with the signature of Barr. Israel B. Affia (as Rector) directing her to process the Results/Certificates of the students but there was no Academic Board approval.

 

(18)    In the midst of these uncertainties, the 1^st Defendant received a letter (Exhibit ON29) from the Independent Corrupt Practices and Related Offences (ICPC) requesting for a conformation/authentication of 327 Statement of Results/Certificates purportedly issued by or emanating from the institution.

 

(19)    The Rector of the 1^st Defendant forwarded the letter in paragraph 18 above to the Claimant and mandated her to cross check the Result/Certificates and report to him.

 

(20)    The Claimant wrote to the Rector and asked for more time to conclude the verification and report to the Rector as directed, after which the Rector wrote to the ICPC for extension of time to conclude the verification and report to the Commission.

 

(21)    While the Rector was waiting to conclude the verification, the Claimant surreptitiously wrote to ICPC, authenticating and confirming all the Statement of Results/Certificates as valid, without the knowledge of the Rector as the head of the institution and in clear violation of the directive to her to forward or submit the report of the verification to him.

 

(22)    Based on Claimant’s response, the Rector forwarded the said response to the Governing Council of the 1^st Defendant and after a review of the response, the Council constituted a Committee on the Review of the Issuance of Statement of Results/Certificates to students of the defunct Distant Learning Centres from 2009-2013.

 

(23)    The Claimant and her Counsel appeared before the Committee and defended herself after which she was suspended from office by the Governing Council of the 1^st Defendant.

 

(24)    Throughout the proceedings of the Committee, the Claimant did not object to its composition or membership and only rushed to this Court as a decoy to stifle the probe by the institution.

 

(25)    The Committee which was properly constituted by reason of and extent the law establishing the 1^st Defendant, is not mandatorily limited to council members or an eclectic mix of both council members and non-council members.

 

(26)    There was no record of the proceedings of December 23, 2021 and January 10, 2022 before this court to set aside.

 

(27)    By the tenor of her employment, the conditions of service of the Claimant is subject to the Public Service Rules of Akwa Ibom State.

 

(28)    This court is without the requisite jurisdiction to entertain this claim, in that:

 

(i)               The action is premature, since the Claimant has not fulfilled the pre-action protocol as required by law.

 

(ii)            There is no cause of action to activate the jurisdiction of this court.

 

(iii)          The action or suit is predominantly speculative.

 

(iv)          The proper parties are not before the court.

 

(v)             The mode of initiating the suit is inappropriate, since the facts are riotous, hostile and disputed.     

 

SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS

 

The Claimant submitted two issues for determination, to wit:

 

(1)      Whether the Claimant can commence this action by originating summons procedure.

 

(2)      Whether the 2^nd Defendant acted in line with the law that established the 1^st Defendant when it set up a Committee comprising of non-Governing Council members, gave the Committee the mandate to investigate and/or Review the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres - 2009-2013, sat as a Council, received the report of the Committee, acted on the report in suspending the Claimant as the Registrar of the 1^st Defendant and thereafter constituted itself into an Investigation Committee and invited the Claimant to appear and defend the allegations against her in the report of the earlier Committee.

 

Issue 1:         Whether the Claimant can commence this action by originating summons procedure

 

First of all the Claimant noted that this action was commenced by way of originating summons, inviting the Court to place the actions of the Defendants against the Akwa Ibom State Polytechnic Law (Cap 97) Laws of Akwa Ibom State, Law establishing the 1^st Defendant, especially Part 11 Section 5 (1), (2), (3) and (4), Section 6, (2), (3), (4) and (5), Section 7, Part III Section 1 (a), (b) and (c). The Claimant then submitted that originating summons procedure is always adopted where a party interested invites the court to interpret deeds, will, enactment or other written instruments and where a person claims any legal or equitable right which depends on the construction of a document and for a declaration as to the right of claim. Applying this to the instant case, the Claimant posited that the action for the interpretation of the relevant sections of the law establishing the 1^st Defendant as to whether the action of the 2^nd Defendant in the setting up of the Committee and whether the Governing Council of the 1^st Defendant can sit with membership strength of less than five (5).

 

In urging the court to hold that this is a proper action to commence by way of originating summons proceedings, the Claimant referred to the case of FBN & Ors v. Zebra Energy Ltd. (2012) LPELR 3172 (SC), where it was held:

 

“... Kayode Eso JSC said inter alias at pg. 74-75 that 'in Regiles Real and Personal Coy v. Michell (1890) 43 Ch. D 391, Cotton, I believe that 'originating summons' was intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve a serious question. The main difference between the writ of summons and originating summons, in the opinion of Chitty J (see in Re: Buffield Whaley v. Bushfield (1886) 32 Ch. D 123 at pg. 126) is that in the one case the proceedings are in court and there are or maybe pleadings; whereas in the other case the proceedings are in chambers and there are no pleadings.”

 

Issue 2:         Whether the 2^nd Defendant acted in line with the law that established the 1^st Defendant when it set up a Committee comprising of non-Governing Council members, gave the Committee the mandate to investigate and/or Review the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres - 2009-2013, sat as a Council, received the report of the Committee, acted on the report in suspending the Claimant as the Registrar of the 1^st Defendant and thereafter constituted itself into an Investigation Committee and invited the Claimant to appear and defend the allegations against her in the report of the earlier Committee.

 

On this the Claimant reproduced Sections 6 (2) and (5) of the Akwa Ibom State Polytechnic Law (Cap 97) Laws of Akwa Ibom State:

 

Section 6 (2):

 

“The Council may appoint Committees consisting of only its own members and may delegate to them such of its powers as it deems fit but no decision of any such Committee shall have effect until confirmed by the Council.”

 

Section 6 (5):

 

“Notwithstanding the delegation under subsection (2) or sub-section 4 of this section, the Council may itself perform any or all of these functions.”

 

To the Claimant the word 'may' is used twice in Section 6 (2) of the law must be interpreted to mean 'shall' in the particular situation of this case relying on the case of Ifezue v. Mbadugha & Anor (1984) LPELR 1437 (SC) where the apex court held:

 

“It is now trite that the word 'shall' does not always mean 'must', a matter of compulsion. It would be interpreted, where the context so admits, as may whereas 'may' is also not always 'may' it may sometimes be equivalent to 'shall' as per Eso JSC.”

 

In the same vein, the Claimant referred to the case of PDP v. Sheriff & Ors (2017) LPELR 42736 (SC) where the apex court also held:

 

“The law is long settled that 'may' is not always 'may'. It may sometime be equivalent to 'shall', see Ifezue v. Mbadugha (1984) 1 SCNLR 437, per Rhodes-Vivour, JSC (pg. 54 Para. A-D).”

 

The Claimant also submitted that where the object is to effectuate a legal right 'may' has been construed as compulsory or as imposing an obligatory duty as in the case of Sheriffs & Anor v. PDP (2017) LPELR 41805 (CA), where the Court of Appeal held:

 

“The word 'may' is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. But where the object of the power is to effectuate a legal right 'may' has been construed as compulsory or as imposing an obligatory duty. See Mokelu v. FCWH (1976) 3 SC 60.”

 

In submitting that the use of the word 'may' in Part II Section 6 (2) of the Law must be construed as being mandatory in this case, the Claimant recounted the infractions of the Defendants:  That by Exhibit I attached to the affidavit of the Claimant, it is clear that on 13^th September, 2021, the 2^nd Defendant, acting as the Governing Council of the 1^st Defendant constituted a Committee of the Council for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres of Akwa Ibom State Polytechnic, Ikot Osurua, Ikot Ekpene, 2009-2013. That Committee was made up of members drawn from outside the Governing Council of the 1^st Defendant. That Committee submitted its report to the 2^nd Defendant, acting as the Governing Council of the 1^st Defendant on 23^rd November, 2021. That following the receipt of Exhibit I, the 2^nd Defendant sat as the Governing Council of the 1^st Defendant and directed the issuance of Exhibits 2 and 2 (a), suspending the Claimant from office as the Registrar of the 1^st Defendant as well as inviting her to appear before the Investigation Committee of the Governing Council to defend the allegations contained in Exhibit 1 and that the Claimant appeared before the Investigation Committee on 20^th, 23^rd December, 2021 and 10^th January, 2022.

 

The Claimant then submitted that the setting up a Committee made up of members drawn from outside Council members was a clear breach of the provisions of Part 11 Section 6 of the law. It is further submitted that that the provision of Part 11 Section 6 of the Law can only be given plain and ordinary meanings as in the case of Gana v. S.D.P. (2019) 11 NWLR (Pt. 1684) 510 at 544, Paras. C-D, where the Supreme Court held:

 

“The literal rule of statutory interpretation is that words must be given their plain and ordinary meanings unless to do so would lead to absurdity or injustice.”

 

Having asserted that there is nothing in Part 11 Section 6 of the law that suggested, even remotely that the Governing Council of the 1^st Defendant, comprising of the 2^nd Defendant can set up a Committee, comprising of members outside members of the Governing Council, the Claimant urged the court to set aside Exhibit 1 and hold the action of the 2^nd Defendant is outside the provision of the Law and therefore a nullity.  

 

To the Claimant, if the Report of the Committee (Exhibit 1) is set aside and declared a   nullity, the next is for the court to hold that the 2^nd Defendant had no legal standing in issuing the suspension letter Exhibits 2 because the 2^nd Defendant does not have the power to invite the Claimant to the 2^nd Committee or issue the suspension.

 

The Claimant went on to reproduce the provision of Part III Section 13 of the Law and submitted that for a principal officer of the 1^st Defendant like the Claimant to be removed from office, the provisions of Part III Section 13 of the Law must be strictly complied. The Claimant then reproduced Section 13, thus:

 

Section 13 (1)

 

“If it appears to the Council that the Rector, the Registrar, the Bursar, the Librarian or the Directors of Works should be removed from office on grounds of misconduct or inability to perform the functions of the office, the Council shall:

a)        Give notice specifying the reason

b)        Appoint under sub-section (2) of Section 6 of this law, an Investigation Committee to investigate and report on the matter;

c)        Ensure that the Investigating Committee affords the persons concerned an opportunity of making by himself or his legal or other representatives representation on the matter before the Investigating Committee.” 

 

The Claimant then contended that the Report of the Committee (Exhibit I) and the invitation of the Claimant to appear before the Investigation Committee as (Exhibit 2 (a) cannot translate into notice as contemplated by Part III Section 13 (1) (a) of the law which stipulated 'notice specifying the reasons'. Closely connected with this is the contention that the Investigation Committee contained in Part III Section 13 (1) (b) of the Law can also not refer to the Committee the Governing Council as the Investigation Committee as constituted is not investigating the Claimant but reviewing the findings of the earlier Committee of the Council as per in Exhibit 1. Similarly, the Claimant argued that the Report of the Committee (Exhibit I) is of no legal consequence as those that sat and produced it had no powers to do so, not being a Committee of the Council.

 

The Claimant referred to Part VI Section 3 of the Schedule to the law which provided that “the quorum for a meeting of the council shall be five.” and submitted that the implication of this is that any meeting of the Council held with less than five (5) members in attendance shall be a nullity. In addition, the Claimant referred to Part 11 Section 5 of the Law which states:

 

“There is hereby established for the proper management of the affairs of the Polytechnic a Governing Council to be known as the Council of the Polytechnic.

            (2)      The Council shall consist of:

                        (a)      A Chairman to be appointed by the Governor.

(b)      The Rector.

                        (c)       The Head of Technical Education in the Ministry.

(3)      The Registrar of the Polytechnic shall be the Secretary to the Council.

(4)      The provision of Schedule to this Law shall have effect with respect to the proceedings of the Council and other matters therein mention.”

 

It is therefore the contention of the Claimant that the combined effect of the provisions of Part 11 Section 5 of the Law and Part VI Section 3 of the Schedule to the Law is that the Governing Council of the 1^st Defendant comprising of the 2^nd Defendant had no powers when it sat and suspended the Claimant and also invited her to the Investigation Committee of the Council presided over by the 2^nd Defendant without the necessary quorum for meetings.

 

Again and by way of a summary, the Claimant reiterated the effects of the non-compliance with the Akwa Ibom State Polytechnic Law (Cap 97) Laws of Akwa Ibom State as follows: 

 

(a)       That the 2^nd Defendant failed to form a quorum for the purpose of sitting and conducting proceedings as the Governing Council of the 1^st Defendant.

 

(b)      Following from the fact as per paragraph (a) above, the proceedings that resulted in the setting up of the Committee that produced Exhibit I was null and void.

 

(c)       That since the 2^nd Defendant lacked capacity to have sat as the Governing Council for the purpose of producing Exhibits 2 and 2 (a), those letters ought to be and should be set aside.

 

(d)      That the Claimant be restored to her position as the Registrar of the 1^st Defendant by this court.

 

For judicial support, the Claimant called in aid the cases of Nigerian National Petroleum Corporation v. Klifco Nigeria Limited (2011) 10 NWLR (Pt. 1255) 209 at 240, Paras. A-B and more particularly Oru v. Nigerian Bar Association (2016) ALL FWLR (Pt. 816) at 565 Para. C to the effect that:

 

“It means that where a court or panel or committee has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings were conducted.”

 

In conclusion, the Claimant urged the Court to resolve all the questions and issues in this originating summons in favour of the Claimant and grant her all the prayers.

 

SUBMISSIONS OF THE DEFENDANTS IN OPPOSITION TO THE ORIGINATING SUMMONS

 

In the Amended Written Address in opposition to the Originating Summons, the Defendants raised and argued a Preliminary Objection on the jurisdiction of this court by formulating a lone issue, to wit: Whether or not the failure to exhaust internal avenues first or notify the 1^st Defendant of her intention to sue robs the court of the jurisdiction to entertain the claim. The submissions of the Defendants on this issue will be considered in due course.

 

In opposing this suit, the Defendants also considered the four (4) questions for determination submitted by the Claimant as follows:

 

Question 1:  Whether by the 1^st Defendant's Law, her Governing Council had powers to have set up a Committee for the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres which members of the Committee were selected from persons outside the Governing Council of the 1^st Defendant with powers to investigate the Claimant, principal officer of the 1^st Defendant.

 

The Defendants answered this in the affirmative and went on to reproduce the provisions of section 6 (2) and (3) of the Polytechnic Law, Cap 97 Laws of Akwa Ibom State 2000 in extenso for emphasis. The Defendants then submitted that, the constitution and composition of a committee by the Governing Council of the 1^st Defendant under sub-section 2 of section 6 is purely subjective and discretionary and that the choice of the number of committees to be constituted is not limited or defined, but rather is left to the Council to decide on behalf of the institution; hence the use of the word "committees" after the word "may". The Defendants also asserted that the choice of "any such committee" is for the purpose of delegation of powers as the Council "deems fit" and that if the intention of the law was restrict the memberships of the Committees only to the Council members, the need to "delegate to them such of its powers", which it already has or it is empowered by law to exercise, would not arise. After all, the Council cannot by law delegate the same powers it is mandated to exercise to itself. It is non sequitor!

 

The Defendants thereafter embarked on an expose of section 6 of the Polytechnic Law, Cap 97 Laws of Akwa Ibom State 2000 in the following terms: That there are principally two sides to the exercise of the powers of the Council to constitute committees under section 6 of the Polytechnic Law. That the first is the committees which the Council is at liberty to compose from the members of the Council, which may also include non-Council members. That the objective of the committee is not stated, but the focus of such a composition and the committee appears to be deliberative, since its decision is ineffective and not binding "until confirmed by the Council". That the second are the committees are in advisory capacity and that advisory role, such committees are also an offshoot of the Council in the exercise of its powers over the affairs of the institution. That in each of these circumstances, the Council enjoys enormous powers to have a blend of both the Council and non-Council members to achieve its objectives which the administration of the institution. That section 6 (1) of the law makes the exercise of the powers of the Council subject to the Commissioner, with limitless powers to "manage the affairs of the Polytechnic" and to "do those things which in its opinion shall achieve the function of the Polytechnic and serve its best interest'.  That by the tenor of the law, the appointment of persons who are not members of the Governing Council of the 1^st Defendant into the Committee for the Review of Statement of Results/Certificates to Supposed Graduates of the Defunct Distant Learning Centres was in conformity with the Law.

 

The Defendants noted that there are five (5) sub-sections to section 6 of the Polytechnic Law Cap 97, Laws of Akwa Ibom State, 2000 and submitted that the section cannot be read in isolation but integrally for the purpose of discovering the true intention of the legislator and the law. The Defendants also submitted that this approach was adopted by the Supreme Court in the cases of Akamgbo-Okadigbo v. Chidi No. 1 (2015) 10 NWLR (Pt. 1466) 171 at 199, paras A-B and more particularly Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 224 para B-C, thus:

 

“Where a particular section of the law has many subsections, all such subsections should be read together for the purpose of discovering the intention of the law maker.”

 

It is the further submission of the Defendants that the provisions of the statute must be read together and not disjointedly and that is the only way to ascertain the intention of the framers of the statute relying on Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 at 399, para B-H. and Action Congress v. Independent National Electoral Commission (2007) 12 NWLR (Pt. 1048) 220 at 318, para E-H.

 

The Defendant therefore submitted that the word ‘may’ in all the sub-sections of section 6 of the Polytechnic Law is used in a permissive sense without more and that by the provisions of section 6 (2) of the Polytechnic Law, Cap 97 Laws of Akwa Ibom State 2000 read or taken as a whole, the Governing Council of the 1^st Defendant can constitute any committee that comprises both the Council and non-council members if "in its opinion" such eclectic mix "shall achieve the function of the Polytechnic and serve its best interest". In a similarly vein, the Defendant advanced that the Court cannot read into the statute what is apparently not there, bearing in mind that, it is not the duty of the Court to pick and choose as in the cases of Nigerian Ports Authority Plc v. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158 at 182, para F-H; Effiong v. Henshaw (1972) NSCC 329 at 332 and specifically the recent case of INEC v. Asuquo (2021) All FWLR (Pt. 1068) 674 at 699, para G - H, where the Supreme Court echoed the point thus:

 

“It is trite that in the interpretation of statutes, the court is concerned with the intendment of the statute. In this regard, a provision in an enactment must be examined as a whole with a view to determining the object it was intended to serve. It should not be interpreted piecemeal. Such a piecemeal approach is bound to lead to absurd conclusions. And more importantly, it must be interpreted broadly in order not to defeat the intentions of its framers.”

 

Referring to the pertinent paragraphs of the Counter Affidavit and Exhibit "ON35" and the terms of reference of the Committee, the Defendant reiterated that the Committee was not a trial or investigation of a principal officer of the institution, but at best, advisory since its role and mandate was to "review" and make "appropriate and necessary recommendations" to the Council.

 

On Exhibit ON35 which is documentary evidence relied upon by the Claimant and Defendants, the Defendants submitted that it speaks for itself and therefore the most reliable piece of evidence calling in support the case of Jack & Ors v. Whyte & Ors (2001) 6 NWLR (Pt. 709) 266 at 284. It is also the submission of the Defendants that once a document is admitted in Court, oral evidence will not be allowed to discredit or contradict the contents thereof; Anyanwu & Ors v. Uzowuaka & Ors (2009) 1 NSCQR (Pt. 40) 1 at 20. It is therefore contended that the court is bound by the content of Exhibit ON35 in the resolution of the dispute and that in the absence of proof, either as to the composition of the Committee or on the illegality of Exhibit "ON35" the Court is entitle to hold that the Claimant has failed to discharge the burden of prove as required by law. And since the Claimant is seeking a declaration in her favour; she is bound to adduce evidence upon which the reliefs are granted; Addah v. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325 at 212, para D-F. and must succeed on the strength of her own case and not on the weakness or admission of the Defendants; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84 at 123, para F. The Defendants also argued that what is alleged without proof can be denied without proof; Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454 at 502.

 

On the Claimant’s contention that "may" as used in section 6 (2) of the Polytechnic Law" has to be interpreted to mean "shall" in this case and, the Claimant submitted,  that it is fallacious for the Claimant to assume that, the mere use of the word "may" twice in section 6 (2) of the Polytechnic Law automatically conveys the meaning of shall or obligation in the context of usage. While it is conceded that, the word "may" is used twice in section 6 (2) of the Polytechnic Law, it is, however, submitted that, the use is deliberate, intentional and purposeful and that the express use of "shall" in the same sub-section 3 means the express exclusion of a directory or mandatory provision of "may" as used in both sub-section 2 and 3 of the same section. So the deliberate exclusion of the word "shall" in sub-section 2 of the same section implies that, it is not open to any other interpretation other than the plain and ordinary usage of the word "may" in context in line the Latin Maxim of “expression unis est exclusion alterus” and that the legislator would have said so if he intended it without mincing words. The Defendants also argued that all cases cited by the Claimant are good authorities in their own right, but none is applicable to the facts and circumstances of this case. Having noted that the sections of the law involved in the cases cited are not in any way similar to the section of the Polytechnic Law under consideration, the Defendant stressed that each case is an authority only for what it decides and nothing more and that authorities cannot be applied across board in total disregard to the peculiar facts in which they were decided as each case must be considered in the light of its peculiar facts and circumstances; Ize-Iyamu v. A. D. P. (2021) All FWLR (Pt. 1098) 386 at 444, para G-H.

 

Similarly, the Defendants cited the case of Nobis-Elendu v. Independent National Electoral Commission (2015) 16 NWLR (Pt. 1485) 197 at 224, para D-E, where it was held thus:

 

“Courts must interpret the law within the context of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislator.”

 

It is also the submission of the Defendants that the attempt by the Claimant to infer the meaning of shall in the usage of the word "may" is an invitation to this Court to embark on a voyage of self-discovery, beyond the shores of the statute which is not available to it as in the Supreme Court case of Eguamwense v. Amghizemwem (1993) 9 NWLLR (Pt. 315) 1 at 31, para H, where it was held thus:

 

“The Court cannot read into a section of a statute a meaning which cannot be described as the intention of the legislator.”

 

Indeed, according to the Defendants, where the statute says a word, it bears that meaning referring to Uhunmwangho v. Okojie (1989) 5 NWLR (Pt. 122) 471 at 490, para B-C.

In the light of the foregoing, the court, is urged to resolve the issue in the affirmative and to discountenance the submissions of the Claimant and the cases cited as inapplicable, both on the facts and circumstances of this case.

 

QUESTION 2:          Whether the 2^nd Defendant was right when it met as a Council of the 1^st Defendant, received the report of the Committee mentioned in Question (1) above, suspended the Claimant from office as the Registrar of the 1^st Defendant, invited her to a Committee of Council for the purpose of confronting her and demanding of her to clear herself from the allegations contained in the purported report of the Committee mentioned in paragraph (1) above.

 

The Defendants answered this question in the affirmative and set out to proffer the following submissions:

 

(1)      That the commencement of the Suit, with the 2^nd Defendant as representing the Governing Council of the 1^st Defendant is inappropriate and procedurally wrong. The Governing Council of the 1^st Defendant is a creation of statute, namely, the Polytechnic Law, Cap 97 Laws of Akwa Ibom State 2000. It is a distinct legal personality that does not owe its existence to a subsidiary body or person and can sue and be sued in its own name not as an appendage of a person.

 

(2)      That the Governing Council is the proper forum to act and take binding decisions on behalf of the 1^st Defendant. The power to act, including receiving of reports of committees it constituted, is derived under section 7 of the Polytechnic Law which has clearly donated to it the power to act "on behalf of the Polytechnic", so that "an act of the Council shall be deemed to be an act of the Polytechnic".

 

(3)      That Section 5 (1) of the Polytechnic Law provides for the establishment of a Governing Council for the Polytechnic, known as "the Council of the Polytechnic. By section 5 (2) of the Law, the composition of the Council is enumerated as follows:

“(2)    The Council shall consist of:

(a)      A Chairman, to be appointed by the Governor;

(b)      The Rector;

(c)       The Head of Technical Education in the Ministry.”

 

(4)      That the composition of the Council, generally, is three (3) referring to paragraphs 3, 4 and 5 of the Affidavit in Support for emphasis.

 (5)     That from the synopsis of the paragraphs 3, 4 and 5 of the Affidavit of the Affidavit in Support, there are materially three different versions of the narratives which are conflicting and contradictory and which flows from the mis-judgment in the persons sued or joined as parties in the Suit.

 

(6)     That in paragraph 3 of the Affidavit in Support, the Claimant deposes that, "the 2^nd Defendant inaugurated a Committee". Paragraph 4 contains the allegation that, "the 2^nd Defendant met as a Council and issued Exhibit 2 suspending me from office". But in paragraph 5, it is deposed that, the "2^nd Defendant invited me to appear". It is still the 2^nd Defendant who "sat as the Committee of the Governing Council of the 1^st Defendant".

 

(6)      That the crucial question is, from the avalanche of juxtaposition of the Council with an individual, who is the Council? We submit that, it is impossible for the 1^st Defendant, alone, to act and assume the role of the Council in the absence of the other members. Yet, Exhibit 2 attached to the Affidavit in Support shows that, the decision to suspend the Claimant from office was taken by the Governing Council. This is attested to by the Claimant in paragraph 5 of the same Affidavit in Support with the use of the phrase "its earlier committee".

 

(7)      It shows that the Claimant is not consistent in presenting her claim before this Court and the law is (and so it has always been) that, the Court is bound by the facts of the case established before it; Asanya v. State (1989-1992) 3 SCJE 516 at 560 and that a party must be consistent in the presentation of her case; Comp-Gen, Customs v. Gusau (2017) 18 NWLR (Pt. 1598) 353 at 383, paras B-C.

 

(8)      That since there are material contradictions in the deposition of the Claimant, mainly on the nature of the Council that received and acted on Exhibit "ON35", and the fact that the Claimant has failed to adduce documentary or other evidence to explain or support the particular allegation, this Court is entitled to reject the fact as unproved. This is because, in law, where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow; Zakirai v. Muhammed (2017) 70 NSCQR (Pt. 2) 833 at 898.

 

(9)      That it is not open to the court to pick and choose which version to believe or reject as to do so will amount to engaging in speculation to fill the gap in the case of a party which the law frowns at; Olalomi Industries Ltd. v. Nig. Ind. Dev. Bank Ltd. (2010) 1 NSCR 1 at 36.

 

(10)    That even if the Defendants did not constitute the Committee or rely on Exhibit "ON35" before suspending the Claimant from office, it is still within the powers of the Council to deliberate on the matter as if it were a Committee of sort, without necessarily acting on the report of a Committee pursuant to section 6 (5) of the Polytechnic Law, which states thus:

 

“Notwithstanding the delegation under sub-section (2) or sub-section (4) of this section, the Council may itself perform any or all of these functions.”

 

(11)    That on the contention by the Claimant that the Committee that produced Exhibit 1 acted as the Governing Council of the 1^st Defendant by allowing non-council members as members of the Committee and as such Exhibit 1 is a nullity and should be set aside, the Defendants argued that the Claimant, who appeared before the Committee, knew of its composition, but choose to submit to the panel cannot complain later about the composition of the same panel; Jibril v. The Military Administrator, Kwara State & Ors (2013) 37 NLLR (Pt. 113) 167 at 199, where it was held thus:

 

“An employee facing an investigating panel cannot complain about the integrity of the panel which he had not challenged during the proceedings.”

 

(12)    That on whether the Council was entitled to suspend the Claimant from office without pay, the Claimant has failed to provide the condition of service, which is the bedrock upon which an aggrieved employee must found his case and therefore failed to set out on a clean sail in an ocean that bears many sides to berth at the sea shore; Gateway Bank of Nig. Plc v. Abosede (2005) 4 NLLR (Pt. 10) 289 at 315 para G; G. O. Dudusola v. Nigeria Gas Company Ltd (2013) 39 NLLR (Pt. 120) 1 at 21, para E-F (SC).

 

(13)    That the onus is on the Claimant to proof the conditions of service and the breach occasioned by the employer; Organ & Ors v. Nigeria Liquefied Natural Gas Ltd & Anor (2014) 4 NLLR (Pt. 125) 1 at 44, paras A-C (SC) and more particularly Gov, Ekiti State & Ors v. Ogunleye & Ors (2015) 54 NLLR (Pt. 182) 153 at 231, ratio 19 where the Court held thus:

 

“A letter of appointment accepted by the employee constitutes the provisions/terms which must be so construed. In construing the relationship, the starting point, foundation and fulcrum should be the letters of appointment in question. The Court must confine itself to the plain words and meaning derived therefrom.”

 

(14)    That by section 13 (5) and (6) of the Polytechnic law, the suspension without pay of staff is within the competence of the Council and is at the discretion of Council to be exercised without the aid of any other body or person. Section 13 (5) and (6) reproduced for emphasis, thus:

 

“(5)    In the application of sub-section (1) of this section, the Council may at any stage of the proceedings suspend from office any staff whose conduct is being investigated until a decision is taken.

(6)      Where the misconduct is not of a serious nature, such an officer may be interdicted and paid such proportion of his salary as the Council may determine; and where the offence is of a serious nature, the officer may be suspended without payment of salary until the case is finally determined in his favour, or he is removed from office.”  

 

(15)    That the law is settled that, an employer has the right to discipline any erring employee in the interest of the organization or institution; Imonikhe v. Unity Bank Plc (2011) 12 NWLR (Pt. 1262) 624 at 649 and that Suspension is an aspect of the discipline of staff by an employer; Yaroe v. Nigerian Stock Exchange (2014) 46 NLLR (Pt. 147) 45 at 151 and that as Suspension is neither a termination of the contract of employment nor a dismissal of the employee; Oduduwa v. Sagamu Microfinance Bank ltd (2014) 51 NLLR (Pt. 171) 535 at 550; Longe v. First Bank of Nigeria Plc (2010) 5 NSCR 1 at 55, para C.

 

(16)    That since the Claimant was suspended without pay in compliance with section 13 (6) of the Polytechnic law, the Defendants had every reason to suspend the Claimant vide Exhibit "ON35" and thereafter invite her to appear before the Investigation Committee as in the case of Atoki v. Ecobank Nigeria Plc (2014) 47 NLLR (Pt. 151) 33 at 113, para F:

 

“The employer accordingly has the right to suspend an employee when necessary, with or without pay or at half pay.”

 

(17)    That the Claimant has confused the procedure for the removal of a principal officer of the institution with the process that leads to suspension before removal and that investigation of a principal officer is a function of a committee constituted by the Council which precedes ratification of the recommendations of the report of the committee by the Council, which must be in consultation with the Commissioner and a recommendation to the Governor for approval; section 13 (2) of the Polytechnic Law.

(18)    That there is no procedure provided by law for the suspension a principal officer of the institution, at least the Claimant has not referred this Honourable Court to any and that what is, however, certain and in express terms, is the procedure for investigating and removal of a principal officer as highlighted under section 13 of the Polytechnic Law.

 

(19)    That the Claimant by paragraph 3.2.15 of the Written Address has validated the procedure for her suspension for misconduct, thus:

 

“Sir, we submit with respect that Exhibit 1 attached to the Affidavit of the Claimant cannot translate into notice as contemplated by Part III section 13 (1) (a) of the law. Part III section 13 (1) (a) is clear on the type of notice to be given; the section requires "notice specifying the reasons". The section does not suggest notice, arising from a report of a Committee that earlier invited the person (in this case the Claimant) to appear and defend herself. It required notice in writing specifying the reason for her invitation.”

 

(20)    That there is a misconception by the Claimant above on the meaning of notice and the discretion of the Council in the exercise of its powers to suspend and the catch-phrase in section 13 (1) of the Polytechnic Law which is, "If it appears to the Council. ..." is purely subjective or an administrative discretion and therefore a quasi-judicial act; Faloino v. Lagos State Public Service Commission (1977) 5 SC 51 at 76.

 

(21)    That an administrative discretion means a public official's or agency's power to exercise judgment in the discharge of his or her duties; Oluwabukola v. A.G., Lagos State (2022)] 2 NWLR (Pt. 1815) 499 at 590, para F and that is a matter of choice and it knows no bounds; Akinyemi v. Odua Investment Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209 at 240, para G.

 

(22)    That there is no standing or permanent committee provided under section 13 (1) of the Law for the investigation of a principal officer of the institution but reference is made to a committee appointed "under sub-section (2) of section 6 of this law" Exhibit "ON35".

 

(23)    That a committee appointed under section 6 (2) of the Law, which freely and in compliance with the provisions of sub-section (1) (c) of section 13 afforded the Claimant the opportunity to defend herself as Exhibit "ON35" and that to have constituted or set up another Committee to review the recommendations in Exhibit "ON35" and even invite the Claimant to defend herself vide Exhibit 2 (a) was a luxury that she should be grateful for.

(24)    That what is central in the requirement of the law, which is strict, is for the Council to "ensure that the Investigating Committee affords the persons concerned an opportunity of making by himself or his legal or other representatives representation on the matter before the Investigating Committee."

 

(25)    That Exhibits "ON35" and 2 (a) are sufficient notices within the meaning and contemplation of the law without more and that there is no format or specific requirements as to the form of the content of notice to be issued or served on a principal officer under investigation for a serious misconduct or nothing under the Law requiring or making it mandatory for the notice to be in writing.

 

(27)    That having freely admitted to have appeared before the Committee vide Exhibit "ON35" and also appeared before the investigation Committee on December 20, 23, 2021 and January 10, 2022, there is absolutely no basis for repudiating Exhibit "ON35" and her suspension.

 

(28)    That it is even the law that, suspension cannot be questioned on the ground that it could not be done and that rules of natural justice do not even apply in cases of suspension; Yusuf v. VON Ltd. (1996) 7 NWLR (Pt. 463) 746.

 

(29)    That flowing from the above, the court should discountenance the submissions of the Claimant and answer the question in the affirmative and resolve same in favour of the Defendants.

 

QUESTION 3:          Whether by the Law establishing the 1^st Defendant, the 2^nd Defendant as presently constituted can exercise the duties and functions of the Council of the 1^st Defendant outside the statutory membership of five to form a quorum for the sitting of the Council of the 1^st Defendant.

 

To start with, the Defendants submitted that the Council was properly and validly constituted at the time when it sat to receive the report of the Committee, suspend the Claimant and invited her to appear before the Investigation Committee. The Defendants noted that it is the contention of the Claimant, relying on section 3 of the Polytechnic Law that, the quorum for a meeting of the Council is five and submitted that it is a sweeping remark or allegation, without substance, for the Claimant alleged that the Council is improperly constituted having appeared three (3) times with her legal representative as required or provided by the law. The Defendants quoted and placed emphasis on paragraph 1 of Exhibit 2, thus:

 

“Please refer to the above name subject matter and the decision of your respected Investigation Committee in the proceedings of 20^th December, 2021 where we requested of your Committee to make available persons within the Polytechnic community we would want to cross examine in defence of our Client - or Mrs Mary Ndah.”

 

The Defendants then submitted that from the above, it is clear that, it is the Claimant, who on her own chooses to disqualify the Rector of the 1^st Defendant by mentioning him as a witness to be cross examined so as to deplete the number and rush to court using that as an excuse. It is the further contention of the Defendants that the allegation of improper composition of the Council or number is hollow as a party who has written to a "respected" Committee and "requested of" the Committee people she would want to cross examine "in defence" cannot turn around and accuse the same body without anything to show, except a self-serving letter produced solely for the purpose of this Suit. Again, to the Defendants there is nothing to show, by way of acknowledgement or proof, that the letter under reference (Exhibit 2) was served on and received by the Defendants or any of her principal officers. It is therefore the submission of the Defendants in line with the cases of Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383 at 394, para A-C and Registered Trustees of Acts of the Apostle Church v. Fatunde (2009) 8 NWLR (Pt. 1144) 513 at 532, para E-G, that:

 

“Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by:

            (a)      dispatch book indicating receipt;

            (b)      evidence of dispatch by registered post; or

(c)       evidence of witness, credible enough that the person was served with the document.”

 

The Defendants also submitted that the burden of proof that the Council was improperly constituted lies on the Claimant who wishes the Court to believe in the improper constitution of the Council;  section 136 (1) Evidence Act, 2011; Egbunike & Anor v. African Continental Bank Ltd (1992-1996) 4 SCJE 568 at 582 and that the Claimant has failed to discharge this burden to the satisfaction of this Court particularly when she appeared three (3) times with her legal representative before stifling the proceedings and rushing to this Court.  

 

Having put the proceedings of the Council in issue by challenging its statutory composition, the Defendants submitted that the onus is fixed on the Claimant to discharge same by virtue of Section 258 Evidence Act, 2011 and not by wishful thinking, but by credible evidence worthy of belief, natural, reasonable and probable as in Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 116; Emeka v. Chub-Ikpeazu (2017) 15 NWLR (Pt. 15890 345 at 379.

 

Similarly, the Defendants referred to the consistent allegation that “the "2^nd Defendant met as a Council and issued Exhibit 2 suspending me from office" as can be found in paragraph 4 of the Affidavit in Support as well as the Affidavit in Support and Written Address of the Claimant, to submit that it is spurious for the Claimant to invite the Court to set aside the proceedings of the Council that received Exhibit "ON35" which is not before the Court and without giving the date of the meeting or of the proceedings thereof.

 

In the light of the above, the Defendants urged the Court to hold that, while the quorum for a meeting of the Council of the 1^st Defendant is five (5) statutorily, the Claimant has failed to place the facts for the Court to interpret the section of the Law and apply it in the circumstances of this case and that the attack on the composition of the Committee is a direct affront to the statutory powers of the Council to delegate its powers as it deems fit noting that delegation of power is not in law usurpation of powers.  

 

QUESTION 4:          Whether this Honourable Court can set aside the proceedings and recommendations of the purported Committee set up by the 2^nd Defendant for the Review of the Issuance of Statement of Result/Certificates to Supposed Graduates of her (1^st Defendant's) Defunct Distant Learning Centres, 2009-2013 as well as declare null and void the letters issued to the Claimant by the 2^nd Defendant, inviting her to appear for the purpose of defending herself based on the report of the purported Committee herein earlier mentioned.

 

The Defendants answered this in the negative and while referring the court to their argument on the issue and validity of the constitution and composition of the Committee, submitted that since both parties have placed reliance on Exhibit "ON35" and on the Polytechnic Law, Cap 97 Laws of Akwa Ibom State 2000, the Court is bound by the facts of the case established before it; Asanya v. State (1989-1992) 3 SCJE 516 at 560  and that it is the facts and circumstances of every case that frames the issues for the decision in that particular case; Ize-Iyamu v. A.D.P (supra) at 445.

In this wise, the Defendants argued that the law establishing the 1^st Defendant also empowers the Council to constitute a committee of choice for its purpose and for the performance of the functions of the Council vide section (2) (3) of the Polytechnic Law, Cap 97, 2000 and that there is no yardstick for inviting this Court to set aside Exhibit "ON35" which is a product of the Committee. It is therefore the submission of the Defendants that there is absolutely no basis for invitation to this Court to set aside Exhibit 2 and the proceedings of the Council of December 21, 23, 2021 and January 10, 2022.

 

The Defendants also referred to reliefs (i) and (k) which are for the declaration of the proceedings of the Committee as null and void and Perpetual Injunction restraining the Defendants from further suspending the Claimant from office respectively and submitted that although there is copious reference to the proceedings of 21^st, 23^rd December, 2021 and 10^th January, 2022 meetings, both in the Affidavit in Support and Written Address, there is nothing to show that such proceedings existed both in law and in fact. The Defendants reiterated that there is no mention of the bundle of documents constituting what is referred to as the proceedings and all that the Claimant presented was an open invitation to the Court to quash the proceedings not before the court on grounds of sentiment.

 

Thereafter, the Defendants asked whether this Court can invoke both its equitable and inherent jurisdiction to quash or set aside proceedings which are not before the Court and answered same is in the negative relying on the Supreme Court cases of Lekwot & 10 Ors v. Judicial Tribunal on Civil & Communal Disturbances in Kaduna & Anor (1997) 8 NWLR (Pt. 515) 22 at 235 and particularly Onyekwuluje v. B.S.G. (2015) All FWLR (Pt. 809) 842 at 868, thus:

 

“No Court can set aside or nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess work and to ask any Court to make decision on guess-work and matter not exhibited before it is unjust and can, depending on the circumstances of the case, amount to abuse of Court process.”

 

On the invitation by the Claimant for the court to exercise its discretion and restrain the Defendants from suspending the Claimant from office, the Defendants submitted that the law is settled that, the court cannot fetter the discretion of an employer to suspend his employee with an order of injunction on the authority of Shell Pet. Dev. Co. (Nig.) Ltd v. Omu (1998) 9 NWLR (Pt. 567) 672.

 

REJOINDER ON POINTS OF LAW

 

The Claimant filed a rejoinder on points of law on questions 1, 2, 3 and 4 answered by the Defendants in spite of answering these questions together under issue (b) of her issues for determination. This Rejoinder on Points of Law will be considered in due course.

 

FURTHER ARGUMENT OF THE CLAIMANT FOLLOWING THE AMENDMENT PURSUANT TO THE ORDER OF COURT ON 9^TH NOVEMBER, 2023

 

Upon the receipt of the amended Counter Affidavit and the written address of the Defendants, the Claimant filed in addition to a Further Affidavit of 8 paragraphs also filed further argument in response to the Defendants’ address. The argument thereof will also be considered in due course. 

 

DECISION OF THE COURT

 

I have painstakingly gone through the originating summons, the affidavits, written submissions and heard learned counsel for the parties and it is my considered view that the issue which needs to be resolved is: Whether the Claimant has proved his case to be granted the reliefs sought in this case?

 

In the consideration of this issue, the questions raised by the Claimant will come to the fore. But before I do that, it is pertinent to consider some preliminary issues germane to this case. One of such issue is the reintroduction by way of preliminary objection in the Defendants’ Amended Final Address the issue of: “Whether or not the failure of the Claimant to exhaust internal avenues first or notify the 1^st Defendant of her intention to sue robs the Court of the jurisdiction to entertain the claim.” Although differently couched, this is the same subject matter of the Preliminary Objection filed 21^st October, 2022 in which a considered ruling dismissing same was delivered on 20^th July, 2023 based on the same arguments. The Defendants cannot therefore smuggle this issue for consideration again. The issue having been decided and rested is hereby discountenanced in this judgment. Also discountenanced is the further argument of the Claimant filed on 30^th November, 2023 which is a response to the reintroduced preliminary objection.      

 

There is also the Rejoinder on Points of Law filed on 1^st April, 2023 by the Claimant on questions 1, 2, 3 and 4 of the Originating Summons which were argued together by the Claimant but argued separately by the Defendants. All the Claimant did in the said rejoinder was to reargue and sometimes seek to improve on the arguments proffered in her Written Address. This is not the purport or function of a rejoinder. A rejoinder on points of law is not supposed to be a repair kit to correct an error or lacuna in the initial address or not meant to have a second bite at the cherry. See the cases of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238, Basinco Motora Limited v. Woermann Line & Anor (2009) 13 NWLR (Pt. 1157) 149, Harka Air v. Keazor (2011) 6 S.C.N.J. 165-166, Phillips v. Eba-Odan (2012) 4 S.C.N.J. 91, APC v. PDP (2015) 4 S.C.N.J 103-104, Salihu v. Wasiu (2016) 1 S.C.N.J. 311, Isiaka v. Amosun (2016) 2 S.C.N.J. 344-345, Mainstreet Bank v. Binna (2016) 2 S.C.N.J. 440-441, Wada v. Bello (2016) 9 S.C.N.J. 284, Awusa v. Nigerian Army (2018) 74 NSCQR (Pt. 1) 343, Eco Bank Ltd v. Honeywell Plc (2018) 75 NSCQR (Pt. 1) 314-315, Eco Bank Ltd v. Honeywell Plc (2018) 75 NSCQR (Pt. 1) 314-315, Unity Bank v. Col. Ahmed (2019) 78 NSCQR (Pt. 1) 16-17, Onwubuya v. Ikegbunam (2019) 78 NSCQR (Pt. 2) 505, Titilayo Plastics Ltd v. Fagbola (2019) 78 NSCQR (Pt. 2) 690, CMES Ltd v. Pazan Ltd (2019) 79 NSCQR (Pt. 1) 13-18 to mention but a few. Since the said rejoinder by the Claimant in the instant case is a mere repetition of the arguments in the written address and therefore clear negation of above principles, I have no option but to discountenance the reply in this judgment.

 

I will now take the substantive issue, that is, whether the Claimant has proved his case to be granted the reliefs sought in this case and in so doing will only refer to the arguments of parties where necessary.

 

The suit is predicated on the interpretation to be accorded sections 5, 6 and 7 of the Akwa Ibom State Polytechnic Law on the constitution and composition of 1^st Defendant’s Governing Council and its effects on the suspension of the Claimant. The suit is an invitation for the court to interpret these sections of the law to determine if the setting up of the Investigation Committee is in accordance with the law and if the Governing Council of the 1^st Defendant can sit with less than five members to suspend the Claimant. The burden is on the Claimant to show that the existence of these assertions and because she is the one seeking for judgment on the existence of asserted facts, the burden of proving that those facts exists rest on her. In other words he who asserts must prove. See the cases of Buhari v. Obasanjo (2005) 7 S.C.N.J. 47, Bayelsa v. Rivers (2006) 12 S.C.N.J. 111, Womiloju v. Anibire (2010) 42 (Pt. 2) N.S.C.Q.R. 894 and Ekeagwu v. Nig. Army (2010) 42 (Pt. 2) N.S.C.Q.R. 1253. These propositions are also the purport and tenure of sections 131, 132 and 133 of the Evidence Act, 2011. There is also the requirement that the Claimant must do so on the strength of her case and not on the weakness of the defence subject to some exceptions. See the Supreme Court case of A.I.C. Limited v. N.N.P.C. (2005) 5 S.C.N.J. 343-344 and Abimbola v. Abatan (2001) 4 S.C.N.J. 82.

 

It is therefore the duty of the Claimant to not only prove that the Committee was not constituted in accordance with the law establishing the 1^st Defendant but that the subsequent suspension of the Claimant was null and void thereby entitling her to the reliefs sought. Whether or not the Claimant will succeed in this quest will depend on the manifest intention of the sections of the law and upon a calm interpretation of the said sections in the light of some statutory provisions and case law authorities. At the risk of repetition, it is imperative to reproduce pertinent sections of the Akwa Ibom State Polytechnic Law relied upon by the Claimant as follows:

 

Section 5:

 

“There is hereby established for the proper management of the affairs of the Polytechnic a Governing Council to be known as the Council of the Polytechnic.

            (2)      The Council shall consist of:

                        (a)      A Chairman to be appointed by the Governor.

(b)      The Rector.

                        (c)       The Head of Technical Education in the Ministry.

(3)      The Registrar of the Polytechnic shall be the Secretary to the Council.

(4)      The provision of Schedule to this Law shall have effect with respect to the proceedings of the Council and other matters therein mention.”

Section 6 (2):

 

 “The Council may appoint Committees consisting of only its own members and may delegate to them such of its powers as it deems fit but no decision of any such Committee shall have effect until confirmed by the Council.”

 

Section 6 (5):

 

“Notwithstanding the delegation under subsection (2) or sub-section 4 of this section, the Council may itself perform any or all of these functions.”

 

The interpretation of these sections is the subject of immense debate between the parties. To the Claimant, the fact that the word 'may' is used twice in Section 6 (2) of the law must be interpreted to mean 'shall' particularly when in law “may” can sometimes be interpreted as “shall” in some given situations. And since the object is to effectuate a legal right in this case on the authority of Sheriffs & Anor v. PDP (2017) LPELR 41805 (CA), 'may' must be construed as compulsory or as imposing an obligatory duty specifically when the setting up a Committee made up of members drawn from outside Council members was a clear breach of the provisions of Part 11 Section 6 of the law thereby rendering the 2^nd Defendant without any legal standing or powers when it sat and suspended the Claimant and also invited her to the Investigation Committee of the Council presided over by the 2^nd Defendant without the necessary quorum for meetings.

 

To prove these assertions, the Claimant attached three (3) Exhibits, to wit: Report by the Committee on the Review of the Issuance of Statement of Results/Certificates to supposed Graduates of the Defunct Distant Learning Centres of the 1^st Defendant from 2009 – 2013 (Exhibit 1), Letter of Suspension (Exhibit 2) and Letter listing the Rector of the 1^st Defendant to appear and testify before the Committee of the 2^nd Defendant (Exhibit 3). Whether or not these are capable of proving the assertions of the Claimant is left to be seen.

 

The Defendants on the other hand countered this by asserting that the Council was properly and validly constituted at the time when it sat to receive the report of the Committee, suspend the Claimant and invited her to appear before the Investigation Committee. It is the further argument of the Defendants that having participated in the proceedings, the Claimant cannot turn around and accuse the Council of improper composition notwithstanding the attempt by the Claimant to disqualify the Rector of the 1^st Defendant by the invitation to cross examine him as a witness in order to deplete the number of the members of Council. The Defendants also denied the receipt of Exhibit 2 as the Claimant failed to produce any acknowledgement to that effect. The Defendants also accused the Claimant of failure to place the facts for the Court to interpret the section of the Law and apply it in the circumstances of this case while stating that the attack on the composition of the Committee is a direct affront to the statutory powers of the Council to delegate its powers as it deems fit noting that delegation of power is not in law usurpation of powers. 

 

On the interpretation of “may” in section 6 (2), the Defendants contended that the provisions of the statute must be read together and not disjointedly to ascertain the intention of the framers and that section 6 (2) read together with sub-section (5) gives the Governing Council of the 1^st Defendant powers to constitute any committee that comprises both the Council and non-council members if "in its opinion" such eclectic mix "shall achieve the function of the Polytechnic and  serve its best interest". It is therefore the contention of the Defendants that the word ‘may’ in all the sub-sections of section 6 of the Polytechnic Law is used in a permissive sense and not mandatory and that the choice of the number of committees to be constituted is not limited or defined, but rather is left to the Council to decide on behalf of the institution; hence the use of the word "committees" after the word "may". To the Defendants the choice of "any such committee" is for the purpose of delegation of powers as the Council "deems fit" and that if the intention of the law was to restrict the memberships of the Committees only to the Council members, the need to "delegate to them such of its powers", would not arise. The Defendants also submitted that by section 6 of the Polytechnic Law, the Council has the powers to constitute committees from the members of the Council, which may also include non-Council members the only requirement is that its decision being  advisory is ineffective and not binding "until confirmed by the Council". It is also the contention of the Defendants that section 6 (1) has given the Council limitless powers to "manage the affairs of the Polytechnic" and to "do those things which in its opinion shall achieve the function of the Polytechnic and serve its best interest' subject only to the Commissioner. 

 

On the suspension of the Claimant without pay, the Defendants contended that the Claimant on whose onus lies the proof of the illegality of the suspension, has failed to provide the condition of service, which is the bedrock upon which an aggrieved employee must found his case. And by virtue of section 13 (5) and (6) of the Polytechnic law, the suspension without pay of staff is within the competence of the Council and is at the discretion of Council to be exercised without the aid of any other body or person. Not only that, the law is settled that, an employer has the right to discipline any erring employee in the interest of the organization or institution and that since the Claimant was suspended without pay in compliance with section 13 (6) of the Polytechnic law, the Defendants had every reason to suspend the Claimant. To justify this, the Defendants annexed about 35 Exhibits, most of which are documents evidencing the events leading to the suspension of the Claimant.

 

The question now is, given the state of pleadings and submissions of the parties, can it be said that the Claimant has proved the lack of quorum of the Council of the 1^st Defendants, the improper constitution and composition of the Committee and the impropriety of eventual suspension of the Claimant? The answer to this is in the negative for reasons that are manifest.

 

To start with, the lack of quorum of the Council of the 1^st Defendant in sitting and conducting proceedings as the Governing Council leading to the constitution of the Investigation Committee is not proved. Apart from citing Sections 3 and 5 of the Polytechnic Law to state that the quorum for a meeting of the council shall be five and that any meeting of the Council held with less than five (5) members shall be a nullity, no effort is made by the Claimant to show that at the time the Council sat it had not formed a quorum. The Claimant only referred to the proceedings without the minutes of the meeting to show the attendance and lack of quorum. So without this, the allegation that the Governing Council of the 1^st Defendant comprising of the 2^nd Defendant had no powers when it sat and suspended the Claimant and also invited her to the Investigation Committee of the Council presided over by the 2^nd Defendant without the necessary quorum remained speculative. There is therefore sense in the submission of the Defendants that while the quorum for a meeting of the Council of the 1^st Defendant is five (5) statutorily, the Claimant has failed to place the facts of the case for the Court to interpret and apply the law to justify the interpretation in that regard. The Supreme Court cases of Lekwot & 10 Ors v. Judicial Tribunal on Civil & Communal Disturbances in Kaduna & Anor (1997) 8 NWLR (Pt. 515) 22 at 235 and Onyekwuluje v. B.S.G. (2015) All FWLR (Pt. 809) 842 at 868, to the effect that no Court can set aside or nullify or quash any proceedings or decisions not before it are apposite.

 

Closely connected with this, is the interpretation of section 6 (2) of the law to infer that setting up a Committee made up of members drawn from outside the Council members was a clear breach of the law to render Exhibit 1 liable to be set aside as a  nullity. In the interpretation of statutes, the court must reckon with some basic principles: It must endeavor to give the words used in the Statute its ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or inconsistency with the rest of the legislation. See Alhaji Adisa vs. Oyinwola & Ors (2000) 10 NWLR (Part 67) 116, (20006) 6 SCNJ 290, Ralph Uwzurille & Ors vs. AGF (2007) 2 SCNJ 369 at P.378 and Amechi vs. INEC (2008) 5 NWLR (Part 1080) 227, Gassol v. Turari (2013) 3 S.C.N.J. 295, Reg. Trustees, A.O.N v. NAMA (2014) 2 S.C.N.J. 473-474, Ardo v. Nyako (2014) 5 S.C.N.J. 172 and Abba Sani v. President, FRN (2020) 81 NSCQR (Pt. 2) 745, to mention but a few. That the court should as much as possible make broad interpretation or what is sometimes referred to as giving the interpretation a liberal approach. See Rabiu v. The State (1980) 8-11 SC 130 at 151,195. That a court should give a holistic and purposeful interpretation to a statute as required by law. See Mobil Oil (Nig.) PIc. v. IAL 36 Inc. (supra) and N.U.R.T.W. v. Road Transpot (2012) 1 S.C.N.J. 351-352, per J. A. Fabiyi, J.S.C.

Flowing from the above principles, the provisions of section 6 (2) which is clear and unambiguous must not only be interpreted holistically but accorded its ordinary, natural and grammatical construction. It is in this wise that the use of the word “may” in section 6 (2) is to be given its natural and ordinary meaning which connotes permissiveness and not mandatoriness. See Mainstreet Bank v. Nig. Reinsurance (2018) 75 NSCQR (Pt. 3) 958. So a liberal and purposeful interpretation of section 6 (2) will leave one with no other conclusion but that the appointment of persons who are not members of the Governing Council of the 1^st Defendant into the Committee for the Review of Statement of Results/Certificates to Supposed Graduates of the Defunct Distant Learning Centres was in conformity with the Law. Any other interpretation as sought by the Claimant would have led to absurdity as it would be almost impractical for a Council consisting of only three members (Chairman to be appointed by the Governor, the Rector and the Head of Technical Education in the Ministry) to  appoint Committees only of its own members.

Not only that the contention by the Claimant that "may" as used in section 6 (2) of the Polytechnic Law" has to be interpreted to mean "shall" in this case is a resort to construction by implication which is frown at in law and permissible only where the meaning of a statute is not clear. See Adisa v. Oyinwola (2000) 6 S.C.N.J. 315, per E. O. Ayoola, J.S.C.

In any case, the Claimant has failed to bring the facts of this case within the application of the word “may” used in section 6 (2) to connote “shall.” See the cases of Contract Resource v.U.B.A. (2011) 7 S.C.N.J. 11-12, Okonkwo  v.U.B.A. (2011) 7 S.C.N.J. 170 and PDP v. Modu Sherrif (2017) 71 NSCQR (Pt. 1) 56.

On the contention by the Claimant that the Committee that produced the Report (Exhibit 1) consisted of non-council members and as such is a nullity which should be set aside, I am in agreement with the Defendants that the Claimant, who appeared before the Committee, knew of its composition, but choose to submit to the panel cannot complain about the composition of the panel on the authority of Jibril v. The Military Administrator, Kwara State & Ors (2013) 37 NLLR (Pt. 113) 167 at 199.

 

Again, for the Claimant to succeed in setting aside the suspension and restoration to the position of the Registrar of the 1^st Defendant, she must first of all prove that the suspension was unnecessary, unreasonable, invalid and hence unlawful. This, the Claimant has failed woefully to do. See Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited (2015) 62 NLLR (Pt. 216) 40.

The law is also settled that it is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (Pt. 1189) 1 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor (2013) 35 NLLR (Pt. 103) 40 NIC. So, it is not only within the inherent disciplinary right and powers of the Defendants to suspend the Claimant on the allegation of misconduct on the issuance of statement of results/certificates for the defunct distance learning centres of the 1^st Defendant but the Defendants reserves the powers under section 13 (6) of the Polytechnic law to suspend the Claimant without pay.

 

By way of conclusion, it should also be noted that the claims for perpetual injunction naturally depend on the success or otherwise of the declaratory reliefs claimed and is a consequential order which should naturally flow from declaratory order sought and granted by court. See the cases of Obi v. Mbionwu (2002) 6 S.C.N.J. 292 and Afrotec v. MIA & Sons (2000) 12 S.C.N.J. 344, Obi v. INEC (2007) 7 S.C.N.J. 26- 27 and Oloruntoba-Oju v. Dopamu (2008) 2 S.C.N.J. 114. It is also a fundamental principle of law that a court will only grant a perpetual injunction at the suit of a Claimant in support of a right known to law or equity, to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suit in respect of every repeated infringement. This is not the case here.

On the whole, the case of the Claimant is hereby dismissed for lack of merit and proof with no order to cost.

 

Judgment entered accordingly.

 

 

……………………………………...

HON. JUSTICE M. A. NAMTARI