University of Ibadan V. Clement Edem Bassey (2016)

LawGlobal-Hub Lead Judgment Report

OBIETONBARA DANIEL-KALIO, J.C.A.

 This appeal is against the judgment of the Federal High Court holden in Ibadan (the Lower Court) in a case of dismissal from employment. The Appellant, the University of Ibadan was the employer of the Respondent Dr. Clement Edem Bassey, a lecturer in the Geology Department of the Appellant University. The Respondent was alleged to have been involved in examination malpractices involving one of his students, one Miss Ojijiagwu. He was alleged to have written an examination conducted by the Geology Department for the said student. The Respondent faced several investigation panels and was eventually dismissed from the employment of the Appellant. He appealed against his dismissal to the Appellant. His appeal was also dismissed by the Appellant. Aggrieved, the Respondent sued the Appellant at the Lower Court. In his Amended Statement of Claim in that Court, the Respondent prayed the Court for ?

1. A declaration that:

(a) The Plaintiff is still a Lecturer in the Geology Department of the University of Ibadan.

(b) The purported dismissal of the plaintiff as per the letter

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dated 8th September, 2005 and the procedure adopted by the Defendant were irregular, invalid, null and void and contrary to the principles of natural justice.

2. An injunction restraining the Defendant, its servants and/or agents from preventing the plaintiff from performing the functions and duties of his office or interfering with the enjoyment of the rights, privileges and benefits attached to the said office.

3. An Order of Court restoring the plaintiff to his post and office and to all rights and privileges attaching thereto.

After hearing the Appellant and the Respondent who both called a witness each (the Respondent testified for himself) and examining several documents tendered, the Lower Court in its judgment delivered on 19/3/10 was of the opinion that the Respondent had proved his case against the Appellant on a balance of probabilities. The Court therefore granted all the reliefs claimed.

?Dissatisfied with the judgment, the Appellant filed a Notice of Appeal which was later regularized having been filed out of time. The Notice of Appeal indicated 5 grounds of dissatisfaction with the judgment of the Lower Court. The grounds

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and the particulars of the grounds, save for ground 5 which had no particulars, are as follows:-

GROUND ONE

The Learned Trial Judge misdirected himself when he held that “I entirely agree with the submission of the learned counsel for the plaintiff that the Defendant is being an accuser and the judge in their own cause expressed in the maxim nemo judex in causa sua?.

PARTICULARS

(a) It is not in contention that query was issued by the Office of the Registrar of the Appellant.

(b) Also it is not in contention that the senior staff Disciplinary Committee of the Governing Council is empowered to investigate, consider and determine all disciplinary matters against erring senior members of staff of the Appellant except the Vice-chancellor, the Deputy Vice-chancellor and other principal Officers.

(c) To exercise on behalf of Council those functions of Council specified in Section 9(3)(a) and (b) of the University of Ibadan Act.

(d) That the Senior Staff Disciplinary Committee has the mandate to recommend its decision to the Governing Council as the final arbiter for final ratification in line with the University of Ibadan Act

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Staff Information Handbook.

GROUND TWO

The Learned Trial Judge misdirected himself when he held that failure to issue a query on the Respondent before inviting him to appear before all the investigating panels led to a complete failure of natural justice.

PARTICULARS

(a) Exhibit CE3 clearly stated the exact point at which a query should be issued and it is only when a prima facie case has been established by the Senior Staff Disciplinary Committee of the Council.

(b) The Respondent admits that he was issued with a query after a prima facie case was established against him.

(c) The Respondent also admitted the fact that he responded to the query.

(d) The Respondent admitted kick-starting the investigation which led subsequently to the issuance of the query against him and the subsequent investigation by the panels before the final recommendation of his dismissal by the Senior Staff Disciplinary Committee to the Council.

(e) The Respondent also admitted the fact that he was given the right of appeal against the recommendation of the Senior Staff Disciplinary Committee of the Council.

GROUND THREE

The Learned

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Trial Judge misdirected himself when he failed to make findings in respect of the admissions of the Respondent in line with Exhibits CE4 and CE5.

PARTICULARS

(a) The Respondent never denied breaching the provisions of Exhibits CE4 as evidenced by Exhibit CE5.

GROUND FOUR

The Learned Trial Judge misdirected himself when he held that the Appellant’s failure to show compliance with provisions of Exhibit CE6 is in itself an admission on non-compliance.

PARTICULARS

(a) From the evidence before the Court, it is wrong to come to the conclusion that the provisions of Exhibit CE3 were not complied with.

(b) It is on record before the Court that the disciplinary procedure as provided for in Exhibit CE3 in conjunction with the University of Ibadan Act was fully complied with.

GROUND FIVE

The judgment is against the weight of evidence.

The Appellant’s Brief of Argument was filed on 27/1/16, after an extension of time was granted to enable the Appellant file it out of time. The Brief was prepared by Ayo Arowosafe Esq. The Appellant formulated four issues for determination, viz:-

1. Whether the learned judge was right

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to have found for the Respondent with respect to the purported non-compliance by the Appellant with the disciplinary procedure as provided for in Exhibits CE3, CE4 and CE5 even in the face of the admission by the Respondent himself.

2. Whether there was sufficient legal evidence after disregarding the evidence of compliance by the Appellant (to wit, Exhibits CE3, CE4 and CE5) with the admission made in evidence by the Respondent to sustain the learned judge’s conclusion that the procedure adopted by the Appellant in dismissing the Respondent from the Appellant?s institution were irregular, invalid and void and contrary to the principles of natural justice.

Let me observe here that I find prayer 2 above difficult to understand.

?The Respondent?s Brief of Argument was filed on 4/2/16. It was prepared by Simeon O. Oni Esq. The Respondent also formulated, two issues for determination. The issues formulated by him are:-

1. Whether the dismissal of the Respondent complied with the rules of fair hearing and natural justice as well as with the procedure for the discipline of senior staff in the Appellant?s Institution.

2.

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Whether there was any failure by the trial judge to properly direct himself in the evidence before him either orally or documentarily.

It seems to me that the issues formulated by both parties essentially have to do with the resolution of this question: whether the dismissal of the Respondent from the employment of the Appellant complied with the relevant law and rules and regulations of the Appellant University as well as with the tenets of fair hearing. I find the Appellant?s issues as stated above to be rather circumlocutory. The Respondent?s issues as formulated are more articulately stated though needlessly split into two issues. I think that the issue I have formulated above is long enough to cover the subject matter and short enough as to prevent any loss of focus on the issues.

Appellant’s Learned Counsel submitted that the Appellant has a right to discipline erring members of staff under the University of Ibadan Act and the Rules and Regulations of Senior Staff of the Appellant University. We were referred to Section 9 (3) (a) and (b) of the University of Ibadan Act and Paragraphs 8.1.4 and 8.1.5 of the Staff Information

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Handbook. The said Handbook contains the Appellant’s Rules and Regulations governing the conditions of service. It was submitted that according to the Handbook, the procedure for the discipline of senior staff requires that the staff concerned shall first be reported to the Registrar who will invite comments from members of staff concerned. Subsequently, a committee will receive reports and comments from those concerned and if satisfied that the offence has been committed by a member of staff, the committee will set up an investigation panel which panel shall consider representations by all concerned and report to the Senior Staff Disciplinary Committee for appropriate action. Where the committee is of the view that a prima facie case has been established, it will notify the staff member concerned about the nature of the offence and request him to show cause why disciplinary action should not be taken against him. Learned Counsel submitted that having regard to the procedure as enunciated, it was after a prima facie case had been made against the Respondent that he was issued a query and later dismissed. He was also dismissed after he had been given an

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opportunity to appeal against the dismissal. It was submitted that in view of the steps taken by the Appellant before the dismissal of the Respondent, it was wrong for the learned trial judge to have held as follows:

?In the light of the above principle of law, I concur with the submission of the Plaintiff’s Counsel to the effect that the failure of the Defendant to issue query on the Plaintiff before inviting him to appear before all the investigating panels led to a complete failure of natural justice?

It was submitted that unlike the case of Adeniran v. NEPA (2001) 47 WRN p.145 at p.158 ? 159 the Respondent did not appear before the disciplinary committee as a witness. It was also submitted that the Lower Court erroneously concluded that the Senior Staff Disciplinary Committee acted as both the accuser and the judge. It was submitted that the Respondent did not prove before the Lower Court how the terms of his contract of employment were breached. The trial Court, learned counsel contended, should have held that the Respondent did not discharge the burden of proof placed on him.

?In his submission in response, Respondent’s

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Learned counsel argued that prior to Exhibits CB6 and CB7, the Respondent had not received any query from the Appellant alleging any wrong doing by him and that it is wrong and against the rule of fair hearing and natural justice to have invited the Respondent to appear before an investigating panel without first issuing him a query. Learned Counsel submitted that the Appellant admitted in the letter of its Senior Staff Disciplinary Committee dated 16/12/2004 (Exhibit CE6) that a query was never given to the Respondent by its Establishment Division and that it was the normal thing for a query to precede any investigation. It was submitted that the admission in Exhibit CE6 is an admission against interest and as such must be upheld by the Court.

Learned Counsel further contended that the finding of the Lower Court that the statement in Exhibit CE6 is an admission against interest was not appealed against and therefore remains binding on the parties and the Court and should not be disturbed. We were referred to the case of Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Part 973) p.330, Nwuke v. CBN Plc (2009) 10 NWLR Part 1148 p.1 at p.126. We were urged to

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affirm the decision of the Lower Court that the failure of the Appellant to issue the Respondent with a query before inviting him to appear before all the investigating panels led to a complete denial of the Respondent?s right to fair hearing. The cases of Iderima v. RSCSC (2006) 7 WRN 1 at 23 and Olaniyan v. Unilag (2004) 15 WRN 44 P. 72 ? 73 were cited in support.

Learned counsel contended that the appearance of the Respondent before all the panels of investigation was as a witness. We were referred to Exhibits CB 13, CB 14, CB 15 and CB 16. It was contended that where an individual is only invited to give evidence, he cannot be said to be an accused person. The case of Adeniran v. NEPA (2001) 47 WRN 145 at 158 – 159 was cited in support.

Giving a chronological account of the events that led to the dismissal of the Respondent, Respondent’s learned counsel contended that at the outset, the Respondent was alleged to have written an examination for one Miss Ojijiagwu. The Respondent it was submitted was exonerated of that allegation by Exhibit CB 11. Later, another panel of investigation was set up. That panel learned counsel contended, also did not find the Respondent

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guilty of writing the examination for Miss Ojijiagwu. Later still, another panel, this one headed by Prof. Adesomoju, was set up. Again, that panel according to the Respondent’s learned counsel’ could not establish the allegation against the Respondent. Instead of Prof Adesomoju’s panel disposing of the matter, it was submitted that the panel recommended that the Respondent should appear before the Senior Staff Disciplinary committee (SSDC) on a new allegation of swapping answer booklets, an allegation for which the Respondent was not being investigated. The Respondent, learned counsel noted, was invited to appear before a SSDC panel, which panel he referred to as panel A, without a prior query. That SSDC panel A according to learned counsel, did not established that the Respondent wrote the examination for Miss Ojijiagwu and yet recommended him to appear before yet another panel of the SSDC which panel also invited the Respondent to appear before it without first issuing him a query. The Respondent’s learned counsel contended that the Respondent appeared before that panel on 16/12/2004 only to be invited to again appear before the panel on 25/1/05 to further

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answer to the allegation of aiding examination misconduct. It was contended that it was while the Respondent was waiting to appear before the SSDC on that occasion that he was for the first time issued a query, Exhibit CB 17. It was contended that the said query set aside the findings of all the previous panels. Learned Counsel submitted that the actions of the Appellant as shown in the chronicle of events indicated that the Appellant was fishing for evidence and also searching for charges to be made against the Respondent.

Learned Counsel submitted that the invitation to the Respondent to appear before the SSDC Panel A without being first issued with a query by the Appellant was a violation of Paragraph 8.1.5 (a) and (d) of Exhibit CE3 and of Section 9 (3) of the University of Ibadan Act. We were referred to the case of Olaniyan v. Unilag (2004) 15 WRN 44 at 89 ? 90. It was submitted that there is no provision in either the University of Ibadan Act or the Rules and Regulations governing the conditions of service of Senior Staff of the University of Ibadan (Exhibit CE 3) which allow the Senior Staff Disciplinary Committee (SSDC) to set aside the

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report of a previous investigation panel, more so when the said SSDC was inviting the Respondent to appear before it to answer fresh allegations. In the circumstances it was argued that the panel had shown bias against the Respondent. Learned counsel submitted that the Lower Court was right when it held that the Appellant was acting as both an accuser and a judge thereby violating the maxim nemo judex in causa sua. Section 36 of the 1999 Constitution was also cited in support of this submission. Also cited were the cases of Udo v. C.R.E. Newspaper Corporation (2001) 22 WRN 52 at 79 ? 80, University of Calabar v. Esiaga (1997) 4 NWLR Part 502 p.719 at 745.

Learned Counsel submitted that even if all the allegations against the Respondent were established, once the required procedure was not complied with, a decision of dismissal as in this case, will be held to be null and void. The case of UBA Ltd v. Achoru (1990) 6 NWLR part 156 P.254 was cited in support. It was submitted that the Lower Court properly considered all the evidence before it before making its various findings. It was also submitted that the Respondent discharged the burden of proof

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placed on him.

As can be seen from the account of what transpired between the Appellant and the Respondent from the perspective of both learned counsel, the only issue before us as earlier identified by me calls for a close look at the provisions of the Act and the Rules and Regulations governing the Senior Staff of the University of Ibadan.

Now, it is well settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with such statute, law or rule before such disciplinary action can be justified. See Iderima v. Rivers State Civil Service Commission (2006) 7 WRN P.1 at p.37, See also United Bank of Nigeria v. Ogboh (1995) 2 NWLR part 38O p.647 at 669. Disciplinary action in this case was taken against a University Lecturer (Dr Clement Edem Bassey) in the employment of the University of Ibadan, the Appellant. The University of Ibadan was established by law, i.e the University of Ibadan Act. Therefore the University of Ibadan Act and the rules made by the University of Ibadan on the discipline of its Senior Staff must be fully complied with before any disciplinary action against a Senior

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Staff of that University such as the Respondent, can be said to be proper or justified.

Section 9(3) of the University of Ibadan Act Cap. 454 Laws of the Federation of Nigeria, 1990 which was the applicable law at the time the cause of action arose, deals with the removal of the Deputy Vice-Chancellor and any other person employed as a member of staff of the University. The relevant provision of the said Section 9 (3) states:

?If it appears to the council that there are reasons to believe that the Deputy Vice-Chancellor or any other person employed as a member of the staff of the University should be removed from his employment on either of the grounds aforesaid, the Council shall

(a) give notice of those reasons to the person

(b) Afford him an opportunity of making representations in person on the matter to the council.

(c) ———————————————————”

Now, “the grounds aforesaid” in the provision cited above refers to the grounds of misconduct or inability to perform the functions of his office (See Section 9 (2) of the Act).

?A perspicacious look at the above quoted provision shows that

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the responsibility to give a query to a member of staff of the University that the University considers should be removed from its employment is reserved for the Council (It is the council that can give such a member of staff the notice of the reasons mentioned in Subsection (a) of Section 9). There is no gainsaying the fact that the council is not the Vice-chancellor.

A close look at the query issued to the Respondent shows that it was issued at the instance of the Vice-Chancellor and not the Council. The query dated 13/1/2005 was signed by Omotayo O. Ikotun (Mrs.) Deputy Registrar (Establishment). It reads in the first paragraph thereof as follows:-

“The Vice-Chancellor has received a report against you and he has accordingly directed that you be queried on same as follows…?

The vice-chancellor by issuing the query as indicated above, sought to supplant the council whose responsibility it is to issue the query. That the Vice-chancellor cannot do so under Section 9 (3) of the University of Ibadan Act. There is no delegation of the power of the Council to the Vice-Chancellor under that Section. In the case of Iderima v. Rivers State

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Civil Service Commission (Supra) the Appellant, a Principal Accountant in the Ministry of Works and Transport of Rivers State, was summarily dismissed by the Respondent after the Accountant – General of the State set up a board of enquiry to determine loss suffered when the Appellant’s office was burgled. The Supreme Court held in that case that the Respondent was wrong to have dismissed the Appellant without complying with the mandatory provision of Sub-rule 04107 of the Civil Service Rules. In this case, the provision of Section 9 (3) of the University of Ibadan Act is specific and non-compliance with it means that the Respondent was not properly dismissed from the employment of the University of Ibadan. See Iderima v. RSCSC (supra) at p.30 lines 5 ? 35.

I now turn to the staff information Handbook which contains the Rules and Regulations which govern the Conditions of Service of Senior Staff. Under Paragraph 8.1.5 of the said Rules and Regulations, the ?modus operandi” of the Senior Staff Disciplinary Committee was set out. The modus operandi set out in the paragraph in summary shows the following sequence of actions to be taken: a report

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on a disciplinary matter is first made to the Registrar; the Registrar invites all concerned to make comments on the complaint, the Registrar makes a report to the Vice-Chancellor; the Vice-Chancellor refers the matter if necessary to the Senior Staff Disciplinary Committee; the Senior Staff Disciplinary committee asks for representation from all concerned and considers the matter; if the Senior Staff Disciplinary Committee comes to the opinion that a prima facie case has been established, it will notify the person concerned of the nature of the offence alleged and require him to show cause why disciplinary action should not be taken against him.

The provision of Paragraph 8.1.5 of the Rules and Regulations summarized above was not followed by the Appellant. Instead, there were a variety of panels of investigation set up against the Respondent without any adherence to the laid down procedure in the modus operandi. Indeed the actions taken by the Appellant led to an aberration. I say so because the respondent was issued with a letter of dismissal by a directive of the Council vide the letter of 8th September, 2005 (See p. 193 of the Record of Appeal). In

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the letter, the Respondent was given 21 days to appeal against the decision of the Council to the very Council that had dismissed him. The Council apparently saw nothing wrong in sitting on appeal over its own decision to dismiss the Respondent. One of the twin pillars of natural justice is nemo judex in causa sua – no one should be a judge in his own cause. This is a rule against bias.

All said, I am satisfied that the learned trial judge came to a correct and just decision when he held thus:

“The dismissal of the Plaintiff (i.e the Respondent here) and the procedure adopted by the Defendant (i.e the Appellant in the appeal) were irregular, invalid and void and also contrary to the principles of natural justice”.

I have no cause or reason to disturb that decision. Consequently, I find no merit in this appeal. I dismiss it. The judgment of the Lower Court is affirmed. I award N50,000 costs in favour of the Respondent and against the Appellant.

Other Citations: (2016)LCN/8647(CA)