Sylvanus Eze V. University Of Jos (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The Appellant was a Senior Administrative staff of the Respondent. The Respondent received from its security division a complaint that the Appellant was collecting money without authority from newly admitted diploma students of the Centre for Continuing Education. The Respondent issued him a query on 12th July 2006 to which he responded on 13th July 2006. The Respondent not satisfied with his response and acting through its Registrar referred the case to the Council/Senate disciplinary Committee and suspended the Appellant from duty effective 21st July 2006.

The Appellant was thereafter summoned to a meeting of the council/Senate committee meeting where he defended himself at the meeting which held between August 8 and 11 2006. By a letter dated November 3, 2006 the Appellant was informed of the council decision of its regular meeting of 2nd to 4th November 2006 to dismiss him from service effective November 3, 2006.

Being dissatisfied with the decision of the council the Respondent approached the Federal High Court by way of originating summons with a lone question for determination to wit:

1. “Whether the plaintiff, having been placed on suspension on the 21st day of July, 2006, the Council of the University had subsisting/extant power to discipline him as they did vide the decision taken at the 5th regular meeting of November, 2 – 4, 2006 having regards to the provisions of section 15, particularly (2) (3) of University of Jos Act, Cap 456, Laws of the Federation of Nigeria, 1990”

In the event of the Court answering that question in the negative he sought the following prayers:

“1. A declaration that the decision reached by the Council of the University at its 5th regular meeting held on November 2 – 4, 2006 to dismiss the Plaintiff, which said decision was communicated vide the letter dated the 3rd day of November, 2006 was unlawful, void and of no effect whatsoever as the statutory power to discipline the plaintiff was not subsisting/extant at the time the decision was made.

2. Order of this Honourable Court setting aside the said decision and indeed the letter of the 3rd day of November, 2006 which communicated the said decision to the Plaintiff.
3. Order restoring the Plaintiff to his job as provided for by the terms of his Appointment with the Defendant.
4. Mandatory injunction compelling the Defendant to compute and pay to the all his salaries, entitlement and benefits withheld consequent upon the purported dismissal.
5. Injunction restraining the Defendant from preventing or disturbing the Plaintiff from carrying out his duties and responsibilities with the University or tampering with the Rights and privileged incidental to his appointment and to pay the costs of this action”

The trial Court answered his question in the positive and dismissed his case hence this appeal. It is to be noted that in line with his question at the trial court, the Appellant limited himself to the issue of the competence of Respondent to proceed to punish him after the three months of suspension set out in section 15 (4) of the university of Jos Act Cap 456 Laws of the Federation of Nigeria 1990 had lapsed. He did not challenge the infamous conduct for which he was suspended and thereafter dismissed.

The Appellant founded this appeal on three grounds of appeal to wit:

(i) The trial court erred in law when it held that “in the instant case the University Council did not act out of time.”

(ii) The trial court erred in law when it held that “…No decision on the matter was taken by the University Council as to continuation of suspension or as to further disciplinary action “such decision” having not been taken, the three months limitation does not begin to run as toward “a final determination.” And therefore it goes to no issue that the Council’s decision to dismiss the Plaintiff taken during their meeting of 2nd – 4th November 2006 (the only action and decision, also final determination), was over three months after the vice-chancellor acted to suspend the Plaintiff. That was the Vice-Chancellor’s decision, not the University Council’s. Only one decision of Council was involved here; and that one decision happened also to be a final determination…” and in so holding came to the wrong conclusion in Law.

(iii) Having reached a finding that “…There is no evidence that the Council took any action i.e. decide to continue the Plaintiff’s suspension or decide to take further disciplinary action against him before its final determination in its meeting of 2nd -4th November, 2006…” the trial Court came to the wrong conclusion in law that “…I would tend to view that the stipulation of time in this instance as merely directory and not obligatory or absolute.”

From these grounds of appeal the Appellant in his brief of argument distilled two issues for determination to wit:

(1) Whether the Disciplinary power of the Governing Council were extant and validly exercised within the time circumscribed by in the enabling act of Respondent.

(2) Whether, being a creation of statute, the Defendant/Respondent can act outside the powers contained in statute.