J. N. Obiegbu V. University of Abuja (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

By an originating motion filed before the Federal High Court holden at Abuja (the lower court), the applicant as appellant herein, prayed the lower court for an order quashing:

(a) The proceedings, findings and reports of the investigation panel and the Examination Misconduct Committee set up by the respondent to investigate the alleged leakage of HIS 102 examination questions to Miss Sandra Onyinyechi Onwuneme as they relate and touch on the applicant.

(b) The proceedings, findings and recommendations of the staff disciplinary committee set up by the respondent to consider the reports of the investigation panel and the Examination Misconduct Committee on the alleged leakage of HIS 102 examination questions to Miss Sandra Onyinyechi Onwuneme as they touch and relate to the applicant.

(c) The warning letter of the 6/7/2000 issued to the applicant by the respondent.

Same having been conducted and/or in total disregard of the applicant’s constitutional right to a fair hearing.

In his statement in support of the originating motion, the appellant stated the grounds upon which his application was premised. The grounds read as follows:

1. The respondent through her agents denied the applicant his constitutional right to a fair hearing throughout the proceedings of the various committees set up by the respondent.
2. The few times the applicant appeared before the committees, he did so as a witness and not as an accused. The applicant was not afforded the opportunity to cross-examine those who (if any) testified against him.
3. The facts giving rise to this appeal as contained in the verifying affidavit in support of the appellant’s originating motion are as follows:

The appellant joined the services of the respondent in 1990 and until 1999 September, when he left the respondent on leave of absence. He was teaching as a senior lecturer in the History Department of the respondent. Between 1990/91 academic session and 1994, he was the examination officer for the History Department. Appellant alleged that there was no case of misconduct against him within the above stated period. He claimed to be teaching HIS 102 with one Mr. Ohiare, his senior and a co-ordinator.

On the 9/8/99, appellant received a letter of same date inviting him to testify before an Examination Misconduct Committee set up by the respondent on 10/8/99. The letter did not allege any form of misconduct against him. On 10/8/99, appellant appeared before the committee and was asked to explain his involvement in the leakage of HIS 012 to one Miss Sandra Onyinyechi Onwuneme. Appellant denied any knowledge of and involvement in the leakage. The committee informed him that his name was mentioned by the student involved. Appellant demanded that the student be brought before the committee to confirm in his presence that he gave her questions or information in respect of the examination on HIS 102 but the committee turned down his request. Appellant further claimed that he did not hear any student testify against him nor was he afforded the opportunity to see any report made against him by any examiner. No examiner testified before the committee against him and he had no opportunity to cross-examine anybody before the committee. He however explained to the committee that in the normal course of lectures and to prepare students for examinations, the department used to give out tutorial questions to the students which questions were discussed with the students as a group before any examination and that was the only procedure adopted in respect of HIS 102. Appellant explained further to the committee that questions were normally discussed at the departmental board of examiners’ meeting attended by all the departmental lecturers. The examination officer and the secretary would produce the final examination questions. Appellant claimed to be neither of the two. He claimed also not to be afforded the opportunity to see the questions allegedly leaked and he was not shown the booklet used by the student which was said to be different from those used by other students.In September, 1999 when appellant was appointed as the Special Assistant to the secretary to the Government of the Federal Republic of Nigeria, he duly applied for leave of absence. His application was not replied until more than two months later. The respondent refused to approve his leave of absence because of his “alleged involvement in an examination misconduct as investigated by the Examination Misconduct Committee and considered by the University Senate at its 68th regular meeting held on 27th July, 1999.

This refusal was conveyed to him through respondent’s letter, reference CA/R/SS/ACA,819 dated 23rd November, 1999. On receipt of the said letter, appellant replied denying that there was a senate decision on any examination misconduct by him. Appellant was then invited by an investigation panel of the respondent on 7/12/99. He however appeared before the said panel on 14/12/99 as against 7/12/99. Appellant was invited also to appear before staff disciplinary committee on 30/5/2000 for alleged improprieties. Appellant appeared on the scheduled date. At the end of the whole saga, appellant received a warning letter dated 6th July, 2004, deploring his role in examination malpractice and that he should desist from further misconduct while in the service of the respondent. That was why he prayed the lower court for the orders set out above. On 20/11/2000, the lower court sat to hear the originating motion but learned counsel for the respondent informed the court that they filed a notice of preliminary objection. Arguments were subsequently taken. In a considered ruling, the learned trial Judge dismissed the application.

Four grounds of appeal were set out in the notice of appeal. In compliance with our rules, parties filed and exchanged briefs of argument, learned counsel for the respondent filed and (argued in his brief) a notice of preliminary objection against the appeal.

In his brief of argument, learned counsel for the appellant distilled the following two issues:

“(a) Whether the appellant was bound to exhaust the internal avenues for seeking redress as provided for in the University of Abuja Decree No. 106 of 1992 before resorting to the law court and if so whether the proper order to make in the circumstances was one of dismissal or striking out?.

(b) Whether the lower court was right to make findings on the substantive suit without first hearing the parties?.

The learned counsel for the respondent formulated two issues thus:

“(a) Whether the appellant was bound to exhaust the internal avenues for seeking redress as provided for in the University of Abuja Decree No. 106 of 1992 before resorting to the law court and if so whether the proper order to make in the circumstances was one of dismissal or striking out?.

(b) Whether the lower court was right to make findings on the substantive suit without first hearing the parties.”

Let me deal with the notice of preliminary objection first. See: Onyekwuluje v. Animashaun & Anor. (1996) 3 NWLR (Pt.439) 637, (1996) 3 SCNJ 24. The notice of preliminary objection gives the grounds of the said objection as follows:

1. That the arguments based on the issue canvassed on grounds one and two of the grounds of appeal and the particulars were never canvassed at the lower court neither was it part of the judgment.
2. That leave of this court was not sought and obtained to argue the issue raised thereon rendering the said grounds incompetent and should therefore be struck out.”

Arguing the preliminary objection, learned counsel for the respondent stated that grounds one and two of the grounds of appeal, the particulars and the issues raised thereon are incompetent and they should be struck out. Arguments canvassed on issues from grounds one and two were never canvassed at the lower court nor did they form any part of the lower courts judgment. The appellant had no leave of this court to canvass same. Such grounds and issues therefore are incompetent and should be struck out. Okenwa v. Military Governor of 1mo State (1996) 6 NWLR (Pt. 455) at 394.

Learned counsel for the appellant replied that the objection raised was totally misplaced and should be discountenanced. The appeal was based on the lower courts decision upholding the preliminary objection and dismissing the appellant’s suit. Arguments on issues raised cannot be same before the lower court and this court. The grounds of appeal and their issues are neither new nor fresh. The leave of this court was not required before the grounds and issues therefore can be raised. This court is urged to discountenance and dismiss the objection as baseless.

If I understand the objection raised and arguments proffered in respect thereof, learned counsel for the respondent is saying that both grounds one and two of the grounds of appeal are incompetent because arguments thereof were never “canvassed” at the lower court and neither did it (such arguments) form any part of the judgment of the lower court.I think learned counsel is under the misapprehension of the law relating to grounds of appeal in an appeal to this court and issues framed by counsel to cover such grounds of appeal. Certainly, grounds of appeal are the life-wire of an appeal as they may be contained in a notice of appeal. With the introduction of brief writing in this court, the requirement is that appeals are determined on issues formulated by the parties. An issue so formulated must relate to a ground or grounds of appeal. An issue that is not so related is incompetent and should be struck out by the court. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 at p. 422; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608 at p. 621; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at p.157; UAC (Nig.) Ltd. v. Global Transport SA (1996) 5 NWLR (Pt. 448) 291; Yusuf v. Kode (2002) 6 NWLR (Pt. 762) 231.Equally, where a ground of appeal is not related to any issue, it will be taken as abandoned and same will be struck out. See: Kano ile Plc. v. G. & H (Nig.) Ltd. (2002) 2 NWLR (Pt. 751) 420. Thus, the law does not require arguments per se to be canvassed before the lower court or form part of the judgment or ruling of the lower court.Arguments in an appeal are the aggregate of legal submissions made by counsel before a court with a view to convincing the court to see merit in the matter he presents and uphold same in his favour. This, I believe, does not have to flow from the decision of court. It depends entirely on the industry and dexterity of the counsel. I therefore fail to see any merit in the preliminary objection raised as none of the grounds of appeal or issues arising therefrom has successfully been faulted by learned counsel for the respondent. The preliminary objection is accordingly overruled and dismissed.

Making his submission on issue No. (1), learned counsel for the appellant stated that the respondent’s contention at the lower court that the appellant’s suit was premature, had been predicated on section 18(7) of the University of Abuja Decree (No. 106) of 1992. That provision, learned counsel argued, did not specify the ‘internal avenues” to be exhausted by an aggrieved staff before resorting to a law court. And even if it were to specify the internal avenues to be exhausted, a party who is dissatisfied with the decision of the university does have an option either to appeal to a higher authority, the University Council, or seek redress in a law court once the matter is justiciable. Reference was made to the case of Egwu v. Uniport (1995) 8 NWLR (Pt. 414) 419 at 425.

Learned counsel argued further that there was no need for the appellant to appeal to the Vice-Chancellor or the Council as the various committees which failed to observe the rules of natural justice in the investigations of the appellant were set-up by the Vice-Chancellor. Further, the warning letter which the appellant sought to quash was issued with the blessing of the Vice-Chancellor and that the Vice-Chancellor was the Vice-Chairman of the council and was determined to rope in the appellant. The Registrar of the university who signed the warning letter was the secretary to the council and was thus acting for the council and the university. Learned counsel cited section 18(9) of the University of Abuja Act. The appellant he argued, was not afforded his constitutional right to a fair hearing and he put up appearances before the committees as a witness. Section 6(6)(b) of the 1999 Constitution was referred to which gives an aggrieved party unlimited access to the court. Thus, the appellant, it was argued further, was not bound to exhaust the internal avenues for seeking redress as provided for in the University of Abuja Decree No. 106 of 1992 before resorting to the law court. The lower court was clearly in error when it proceeded to hold to the contrary that the action was premature and even if so, (though not conceded by learned counsel) the proper order to make in the circumstance was one of, striking out and not one of dismissal of the suit which would amount to shutting out of the appellant from subsequent litigation on the same issue if he so desired.

On his issue No.2, learned counsel for the appellant submitted that by his findings on page 106 of the record, the learned trial Judge had made a finding on the substantive suit before the lower court on a preliminary issue and he ought not to have done so. The case of Republic Rank Ltd. v. CBN & Anor. (1998) 13 NWLR (Pt. 581) 306 at 322 – CE was cited in support, among others. There was no basis for the findings, argued the learned counsel for the appellant, as the findings were neither borne out of the appellant’s affidavit nor that of the respondent. The lower court was in error when it made such findings on the substantive case in a preliminary application before it. This court is urged to allow the appeal and set aside the entire decision of the lower court.

In his response, learned counsel for the respondent, submitted that the condition laid down in section 18(7) of the University of Abuja Decree is a condition precedent which is permitted by law and is in no way contrary to section 6(6)(b) of the 1999 Constitution.

Learned Counsel made reference to some decided authorities including: Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) at 536 particularly page 566 G-H. He argued that the case of Egwu v. Uniport (supra) is irrelevant to this case as the facts are at variance and sections relied by the court was at variance with S. 18(7) of the University of Abuja Decree and the word “shall”, used therein, means a mandatory act. Case of Anibi v. Sotimehin (1993) 3 NWLR (Pt. 282) 461, cited in support.

Learned counsel submitted further that the issue of lack of confidence in the conflict resolution mechanism is a matter of fact touching on the substantive action itself which the trial court could not have pronounced upon. Thus, the appellants argument thereon, contained in his brief of argument page 4 paragraph 3.1.4, suffers the defect of the learned trial Judge touching upon substantive issue at interlocutory stage.

On the issue of whether the trial court should have struck out the suit rather than dismissing same learned counsel for the respondent, on the hearing date of this appeal, abandoned his position depicted in his brief and now conceded that the right order to have been made by the lower court was that of striking out the suit, not dismissal.

On issue (b) or No.2 learned counsel for the respondent submitted that the trial Judge’s comments did not amount to a ruling on the substantive suit. Even if it is so, learned counsel submitted further, that could not result in a miscarriage of Justice since the substantive action itself was held to be premature. Learned counsel urged this court to dismiss the appeal and affirm the decision of the lower court.

While responding to new points raised by the respondent, learned counsel for the appellant, in his reply brief made the following replies:

On issue No.1, that the requirements of section 18(7) of the University of Abuja Decree cannot by any stretch of imagination pass for a condition precedent. At best, it is a condition imposed on a prospective litigant to tie down his hands. Cites Alolugbe’s case (supra) in support. Again, the appellants right to a fair hearing had been denied by the committees set-up by the respondent and appellant did not have to wait indefinitely.

Learned counsel referred to Akuntemis case that the court in that case, granted the students’ application for certiorari to quash their suspension on the ground that they were denied their right to fair hearing.

On issue No.2, the issue whether or not there was non-compliance with the provision of section 18(7) never arose before the lower court but whether non-compliance with section 18(7) rendered the appellant’s suit premature. Learned counsel replied that this is an issue of law which can be determined without perusal at the appellant’s affidavit in support of the substantive application. Respondent’s submission thereon should be discountenanced. On the issue of determining substantive case at preliminary stage, learned counsel replied that the case of Onamade v. ACB Ltd. (cited by counsel for the respondent) is inapplicable in the circumstance and that the lower court predetermined the suit before it without giving him a hearing and the lower court determined an issue not placed before it upon which it had no jurisdiction to so do. Further, the lower courts findings were adverse to the interest of the appellant.

The first issue in this appeal deals with the issue of exhaustion of the internal avenues laid by the university of Abuja Decree No. 106 of 1992 before the appellant could approach a court of law for redress. This was the main issue raised in the preliminary objection considered by the trial court. In its findings the trial court stated inter alia:

“I agree and uphold the submission of learned counsel to the respondent that the present action is premature. That the applicant has not fully exhausted the internal arrangement put in place by the University for dispute resolution.”

Section 18(7) of thc University of Abuja Decree No. 106 of 1992 (to be simply referred to herein as ‘the Decree’) stipulates as follows ”

18(7). No staff or student shall resort to a law court without exhausting the internal avenues for settling disputes or grievances, or for seeking redress.”

From the records, the University as per the Decree, has power to set-up an investigation panel to investigate allegations of misconduct, indiscipline in respect of members of staff of the University. The section states –

“16.(1) Where it is alleged that a member of staff is guilty of misconduct or should for any other reason be disciplined, the Vice-Chancellor or the Senate shall constitute an investigation panel to –

(a) determine whether or not a prima facie case has been established against the member of staff;

and

(b) make a report of its findings to the Staff Disciplinary Committee established under subsection (3) of this section.

(2) The investigation panel shall consist of –

(a) the president or chairman of the trade union to which the member of staff belongs; and

(b) such members of the Senate as the Vice-Chancellor or Senate, as the case may be, may determine.

(3) The Vice-Chancellor shall constitute a Staff Disciplinary Committee which shall consist of such members of the Senate as he may determine, to consider the report of the investigation panel.

(4) The report of the Staff Disciplinary Committee and its recommendation shall be forwarded to the Council for necessary action under section 15 of this Decree.

There was set-up an Investigation Committee which vide its invitation letter invited the appellant to appear before it for a meeting. The letter was signed by one Idris O. Jibrin, secretary to the investigation panel. This was attached as exhibit “J6”. The appellant replied this letter vide exhibit “17”. Again, a Staff Disciplinary Committee was set-up by the Vice-Chancellor to look into the alleged improprieties of the appellant. The appellant was invited to appear before that Committee on Tuesday, 30th May, 2000 with a view to hearing appellant’s own “side of the incident”. Receipt of that letter was acknowledged by the appellant vide exhibit “J9”. In his reply, however, the appellant stated inter alia-

“To enable me be of greater assistance and also defend myself (in the event that there are charges against me) I request from you a statement as to who my accusers are, the charges which they have made and the statement they have made in support of those charges. I also request you to produce the accusers to personally defend their statements.”

A warning letter to the appellant was served on him from the University Registrar’s office. That is contained in exhibit “J10”. That letter reads –

“University of Abuja,

Abuja, Nigeria,

Our Ref. UA/R/SS/ACA.81 6th July, 2000

Dr. J. N. Obiegbu,

Department of History,

University of Abuja,

Abuja.

Dear Dr. Obiegbu,

WARNING

The Staff Disciplinary Committee set-up pursuant to Section 16 of the University of Abuja Statute No.1 of 1992 has considered your alleged leakage of HIS 102 examination question to a student Miss Sandra Onyinyechi Onwuneme and reviewed the reports submitted to it by both the Examination Misconduct Committee and the Investigation Panel and thereby recommended a serious warning to you on the examination misconduct.

Accordingly, the University strongly deplores your role in the examination malpractice and your personal conduct during the investigation process which falls below what is normally expected of a senior academic of your stature.

You are hereby warned to desist from further acts of misconduct while still in the service of the University.

Yours faithfully,

(Sgd.)

Alhaji Yakubu H. Habi

Registrar”.

I took pains to study carefully the Decree and found the internal avenues for settling disputes or grievances or for seeking redress have not been clearly and separately provided for by the Decree.

Section 15 of the Decree deals with removal and discipline of academic, administrative and professional staff. It is only under that section where some opportunities are afforded a staff who falls within the above categories and who is alleged, to have committed some misconduct, to make representations in person to the Council. Section 15 provides as follows –

“15.(1) If it appears to the Council from the report of the Staff Disciplinary Committee, established under section 16 of this Decree, that there are reasons for believing that any person employed as a member of the academic, 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 this 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.

(2) The Vice-Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by Council, and for the purposes of this subsection “good cause” means –

(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold office; or

(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or

(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.

(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on half pay and Council shall I before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to –

(a) whether to continue such person’s suspension and if so on what terms? (including the proportion of his emoluments to be paid to him);

(b) whether to reinstate such person in which case the Council shall restore his full emoluments to him with effect from the date of suspension?;

(c) whether to terminate the appointment of the person concerned in which case the person shall not be entitled to the proportion of his emoluments withheld during the period of suspension?; or

(d) whether to take such lesser disciplinary action (against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine, and In any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person?.

(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use his best endeavours to cause a copy of the instrument to be served as soon as is reasonably practicable on the person to whom it relates.”

In his verifying affidavit in support of the originating summons, the appellant averred as follows –

“2. By virtue of paragraph one above, the circumstances leading to this suit are within my personal knowledge.

3. I joined the services of the respondent in 1990 and until September, 1999 when I left on leave of absence, I taught as a Senior Lecturer in the History Department of the respondent’s institution.
4. Between the 1990/91 academic session and 1994, I was the examination officer for the History Department. Within this period, there was no case of misconduct against me. At all material times leading to this suit, I taught HIS 102 with Mr. Ohiare, who, as my senior in the department, was the coordinator.
5. However, on the 9/8/99, I received a letter of the same date inviting me to testify before an Examination Misconduct Committee set up by the respondent on the 10/8/99. A copy of the letter is here shown to me and marked as exhibit “J”. The letter did not allege any form of misconduct against me.
6. On the 10/8/99, I appeared before the Committee and was asked to explain my involvement in the leakage of HIS 102 to one Miss Sandra Onyinyechi Onwuneme. I denied any knowledge of and involvement in the leakage. The Committee informed me that my name was mentioned by the student involved.
7. I demanded that the student be brought before the Committee to confirm in my presence that I gave her questions or information in respect of the examination on HIS 102. The Committee turned down my demand.
8. I did not hear any student testify against me and I was not afforded the opportunity to see any report made against me by any examiner and I am not aware that any examiner testified before the Committee against me. I therefore had no opportunity to cross-examine anybody before the Committee.
9. I however explained to the Committee that in the normal course of lectures and to prepare students for examinations, the Department gives out tutorial questions to the students which questions are discussed with the students as a group before any examination. This was the only procedure adopted in respect of HIS 102.
10. I further explained that examination questions are normally discussed at the Departmental Board of Examiners meeting attended by all the departmental lecturers. The examination officer and the secretary produce the final examination questions. I was neither the examination officer nor the secretary.
11. I was not afforded the opportunity to see the questions allegedly leaked and I was also not shown the booklet used by the student which was said to be different from those used by other students. The only lawyer on the Committee refused to sign the Committee’s report. A copy of the report is here shown to me and marked as exhibit ‘J1’.
12. In September, 1999 when I was appointed as the Special Assistant to the Secretary to the Government of the Federal Republic of Nigeria, I duly applied for leave of absence to the Vice-Chancellor through the Dean and Head and Department of my Faculty and Department respectively. My application was not replied to until more than two months later. The respondent refused to approve my leave of absence because of my “alleged involvement in an examination misconduct as investigated by the Examination Misconduct Committee and considered by the University Senate at its 68th regular meting held on 27th July, 1999. A copy of the respondent’s letter is here shown to me and marked as exhibit “J2”.
13. On the receipt of exhibit ‘J2’, I duly wrote back and delivered on the same day (2/12/99) a letter denying that there was a Senate decision on any examination misconduct by me. A copy of the letter is here shown to me and marked as exhibit “J3”. This was a ploy by the Vice-Chancellor and her cohorts to prevent me from securing an appointment as a Special Assistant to the Secretary to the Government of the Federation. Neither the 68th regular meeting of the Senate held on the 27th day of July, 1999 nor the 69th regular meeting of the Senate held on the 8th day of September, 1999 (which decided on the case of Miss Sandra Onyinyechi Onwuneme) indicted me of any involvement in examination malpractice. Copies of the 68th and 69th regular meeting of the Senate held on the 27th day of July, 1999 and 8th day of September, 1999 are here shown to me and marked respectively as exhibits “J4” and “J5”.
14. On the 3/12/99, I received another letter, which lacked authenticity inviting me to attend an Investigation Panel of the respondent on the 7/12/99. A copy of the letter which was copied to Professor A. A. Olatunde who later became the Chairman of the Panel is here shown to me and marked exhibit “J6”. I nevertheless replied on the 6/12/99 to notify the secretary (Idris O.O. Jibrin) that I had an engagement for the 7/12/99 and requested for an alternative date. A copy of the letter is here shown to me and marked as exhibit “17”.
15. I subsequently appeared before the panel on the 14/12/99 when the Chairman (Prof. A.A. Olatunde) raised up a copy of a document which he said was a report indicting me with involvement in examination misconduct. I was neither given a copy nor allowed to read it.
16. At the meeting of the 14/12/99, I object to the membership of the panel because all the members were cronies of the Vice-Chancellor who had promised to deal with me for not supporting her bid to become the Vice-Chancellor. After the objection, the Chairman ruled that the Panel was no longer sitting and I left. I later heard that the panel nevertheless submitted a report to the Vice-Chancellor indicting me. I was not availed a copy of the report.
17. I also received another letter dated the 23/5/2000 inviting me to appear before a Staff Disciplinary Committee on the 30/5/2000 for alleged improprieties against me. A copy of the letter is here shown to me and marked as exhibit “J8”. I replied on the 26/5/2000 to the Secretary of the Committee demanding to know the charges against me (if any) and my accusers. I also demanded that my accusers be produced on that date. A copy of the letter is here shown to me and marked as exhibit “J9”.
18. I duly appeared before the Staff Disciplinary Committee on the 30/5/2000. It was quite obvious from the conduct of the Committee members that they were biased against me. I was not availed with the proceedings of the Committee and report.
19. Subsequently however, I received a letter dated the 6th day of July, 2000 deploring my role in examination malpractice and warning me “to desist from further acts of misconduct while still in the service of the University”. “A copy of the letter is here shown to me and marked as exhibit “J10”.
20. Exhibit “J10” is part of the grand scheme by the Vice-Chancellor and her stooges to smear my name and finally get me removed from the University.
21. The whole disciplinary procedure adopted by the respondent was a sham devoid of a fair hearing, neither in compliance with the University of Abuja Decree, 1992 nor the conditions of service for senior staff and therefore unconstitutional.

The findings of the learned trial Judge further stated –

“The applicant in paragraph 21 of the affidavit attached to the application also acknowledged the existence of Decree 106 of 1992. I do not agree with the applicant that the guideline has not been followed with particular regard to S. 16(4) of the decree which stipulated that the report of the Staff Disciplinary Committee and its recommendation shall be forwarded to the Council for necessary action under S. 15 of this Decree.

The letter exhibit “J9″ written by the Registrar who under section 5(2) of the 1st Schedule to the Decree is described as the Chief Administrative Officer of the University and shall by virtue of that office be the secretary to the Council, the Senate, congregation and convocation.

There is nothing before me to show that the Registrar when he wrote the letter acted without the authority of the Council referred to in section 16(4).

If the appellant had observed any anomaly, he ought to have first appealed to the council as envisaged under section 18(7) of the Decree”

Section 18(7) of the Decree as seen earlier does not say so. At the risk of repetition, I quote herein below the said section – “18(7). No staff or student shall resort to a law court without exhausting the internal avenues for settling disputes or grievances, or for seeking redress.”

As I said earlier on, the Decree has not eloquently and distinctly specified any mechanism as an avenue for settling dispute or grievances or for seeking redress. Section 15 relied upon by the respondent provides the general guidelines for the removal or discipline of some categories of staff. Section 16 of the Decree too, in my view, laid the procedures for staff discipline. All these procedures appear to favour the respondent. In any legislation or rules provided for administrative convenience, and where it is claimed that opportunities are contained therein for any staff alleged to have committed any act of misconduct, such opportunities or steps to be taken or exhausted by the aggrieved staff must be spelt out clearly and categorically. From the averments made by the appellant in his verifying affidavit in support of the originating motion, in my view, the appellant complied with all the invitations extended to him to attend meetings with members of the respective Committees set-up by the respondent. I do not agree with the learned trial Judge that there is any provision in section 18(7) where the appellant can make an appeal to the council. The various committees set-up by the respondent had had interviews with the appellant. The committees, submitted their findings to the respondent and the respondent issued exhibit “J10” to the appellant. The appellant in my view, had substantially complied with the requirements of the Decree before filing his action. In any event, apart from the constitutional provisions which entitle the appellant to have recourse to a court of law where his civil rights and obligations are threatened, (section 36 of the CFRN, 1999), the Decree itself in section 18(9) provides –

“18(9). Nothing in the subsection shall affect any power of a court of competent jurisdiction to enforce the fundamental right of any aggrieved citizen as enshrined in the Constitution of the Federal Republic of Nigeria, 1979, as amended.”

Thus, the appellant went to the lower court seeking to enforce his fundamental right. Further, as a corporate body the respondent can sue or be sued. See section 1(2) of the Decree.

A court of law must always ensure that it does not shut a litigant from pursuing his cause of action which is properly brought before it. It is thus my view that the appellant had exhausted all the avenues that were granted to him by the Decree in the defence of the allegation made against him. It is for the trial court to consider whether allegations made against him were valid and, or whether his defences were valid. This, I believe, can only be done when the matter is fully subjected to full hearing by the trial court. I therefore resolve issue No.1 in favour of the appellant.

On the 2nd issue, the complaint against the lower court is that the learned trial Judge determined the substantive suit at a preliminary stage when he found as follows –

“I should perhaps add that contrary to the statement of the applicant in paragraph C that the few times he attended to the invitation of the Committee, he attended as a witness. Exhibit 17 (sic) referred to in paragraph 17 of his affidavit shows that he was not invited as a witness. He was invited on so many occasion (sic) and he ought to have placed whatever misgivings he had before the various panels or the council. His complaint about the composition of the panel was also not brought to the attention of the Council. I have no doubt at all that what would have amounted to a gross violation of the applicant (sic) fundamental right would have been a total disregard of the complaints which he had complained of and not addressed. (See para. 2 from bottom. Page 112 of the records)”

The above excerpt from the ruling has really gone beyond its scope. The ruling should have limited itself to the issues only raised by the preliminary objection. The trite position of law is that a learned trial Judge is bound as much as possible to restrain himself from making any pronouncement on the substantive matter before him which was yet to be heard on its merit. See: Republic Bank Ltd. v. C.B.N. & Anor. (1998) 13 NWLR (Pt. 581) 306; Shell Petroleum Dev. Co. (Nig.) Ltd. v. Omu (1998) 9 NWLR (Pt. 567) 672, Onwuegbu v. Ibrahim, (1997) 3 NWLR (Pt.491) 110; Third Eye Comm. Ltd. v. Ishola (1999) 2 NWLR (Pt. 592) 549; Akuma Ind. Ltd. v. Ayman Ent. Ltd. (1999) 13 NWLR (Pt.633) 68. Those issues addressed by the learned trial Judge, would have been dealt with at the hearing stage of the substantive matter. This issue is as well resolved in favour of the appellant.

In the final result, this appeal is full of merit and same is hereby allowed by me. Accordingly, the ruling of the lower court dismissing the appellant’s suit is hereby set aside. I hereby remit the case to the Chief Judge of the Federal High Court for the substantive matter to be heard by another Judge apart from Olatoregun, J. The respondent shall pay N10,000.00 costs to the appellant in this appeal.

Other Citations: (2004)LCN/1670(CA)