IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT LAGOS
Before His Lordship:-
HON. JUSTICE J. D. PETERS- JUDGE
DATE: 2016-12-01- SUIT NO: NICN/LA/371/2013
Dr. Janet Titilayo Bamgbose ANOR .........................................................CLAIMANT
Federal University of Agriculture Abeokuta ………………………………..DEFENDANT
B.C. Anyanwu with John Nwokwu, Omolade Yusuff
Olakunle Adeniyi, Ben Dongo and O. Ariguza for the Claimants.
A. Olabode, with Mobolaji Oloyede & Peter Ogar for the Defendant.
On 16/7/13, the Claimants approached this Court via their General Form of Complaint and statement of facts and sought the following reliefs from the Court against the Defendant -
a. A declaration that the termination of the Claimant’s employment by the Defendant vide its letters of termination dated 10th May 2013 served on them respectively is wrongful, unlawful, illegal, null and void and of no effect whatsoever being contrary to the procedure on Staff discipline outlined in Section 18 of the Federal University of Agriculture Act.
b. A declaration that the termination of the Claimants employment by the Defendant based on the final decision of the University Council composed of members of the Investigation Panel and members of the Staff Disciplinary Committee whose report it considered and approved is unlawful, null and void and of no effect whatsoever for being in breach of the principles of natural justice and fair hearing.
c. A declaration that the Claimants were denied fair hearing by the Defendant in the procedure that led to the termination of their appointment.
d. A declaration that the Claimants are entitled to their salaries and allowances without loss of position and privileges from the date of purported termination of the employment until date of judgment.
e. An order setting aside the purported termination of the Claimants’ employment with the Defendant and reinstating them to their posts in the Defendant without loss of seniority, privileges, entitlements and allowances.
f. An order mandating the Defendant to pay to the Claimants their salaries and allowances from the month of May, 2013 to the date of judgment in this suit.
g. An order mandating the Defendant to pay to the Claimants the sum of N10,000,000.00 (The million naira) respectively as damages for wrongful termination of their employment.
h. An order mandating the Defendant to pay to the Claimants the sum of N5,000,000.00 (Five million naira) representing the cost of this suit.
The Claimants accompanied their Form 1 with all requisite processes of Court as mandated by the Rules of this Court. The Defendant reacted by filing its statement of defence on 13/12/13.
2. Brief Facts
The brief facts of this case as revealed by the pleadings filed on either side are that the Claimants who were at the relevant time academic staff of the Defendant were accused of plagiarism by an anonymous e-mail. The Defendat subsequently set up an Investigation Panel to investigate the allegations against the Claimants. The report of the Investigation Panel was considered and a recommendation made for the dismissal of the Claimants for plagiarism and they were dismissed accordingly. The argument of the Claimants was that the procedure leading to their dismissal did not follow the statutory provisions as contained in Section 18, Federal Universities of Agriculture Act, Cap. F22, laws of the Federation of Nigeria, 2004. The Defendant argued otherwise.
3. Case of the Claimant
The hearing of this case commenced on 26/5/14 when the 1st Claimant testified as CW1,adopted her written statement on oath and tendered 21 documents as exhibits. The documents were admitted as exhibits and marked as Exh. TB1-Exh. TB21. Under cross examination, CW1 stated that Plagiarism is the act of copying another person’s work without acknowledging the original author of the work; that Exh. TB 3 was shown to her for the 1st time at the Investigation Panel on 10/4/13; that it was only the images in the Exhibit that were shown to her and not the whole paper; that the similarities in her paper and Exh. TB 3 are the images; that she did not acknowledge that she got materials from Dr. Adewuyi because Dr. Adewuyi collected money for running the samples for her and the 2nd Claimant; that the images are results of analysis done in South Africa and that she could not have acknowledged Dr. Adewuyi because he collected from the Claimants for the job done.
The 2nd Claimant testified as CW2 on 18/5/15. CW2 adopted his written deposition dated 16/7/13 as his evidence in chief and tendered 9 documents as exhibits. The documents were admitted and marked as Exh. AB1-Exh. AB9. While being cross examined, the witness stated that he was not given any Query by the Defendant; that there was no allegation by the Investigation Panel that the images in the work alleged to have been plagiarised was obtained from Dr. Sheriff Adewuyi and that they did not acknowledge Dr. Adewuyi because they paid him for the images he provided for them.
4. Case of the Defendant
The Defendant opened its case on 30/6/15. The witness adopted his written statement on oath dated 17/12/13 as his evidence in chief and tendered 4 documents as exhibits. The documents were so admitted and marked as Exh. D1-Exh. D4.
Under cross examination, DW1 testified that he holds a B.A. History 1984 PGD Management Studies 1988, M.B.A OAU 1995, Master in Nigerian Psychology 2006, 2014; that he is a Social Scientist; that he does not know anything about writing Scientific papers; that he is Secretary to the Senate of Defendant; that he was not a member of the Panel that investigated the Claimants; that he did not attend any of the sittings of that Panel; that he does not know what transpired at the Panel sitting except from the Panel Report; that he is aware of the case investigated against the Claimants; that he is not aware of that plagiarism of Raquesh paper was not investigated against the Claimants; that as Registrar of the Defendant, he is not duty bound to be expert in all fields; that he however relies on expert opinion and information available to him; that he is not a pure Scientist; that he is not aware that original Report attached to Exh. D4 did not capture the SEM FTIR images; that he is not aware that there is an international standard for checking plagiarism; that he is not an academic; that there are very few cases of plagiarism in the Defendant; that since he joined the Defendant he is aware of only 2 cases and that he cannot say if the Dr. Ajayi checker had been used before.
Witness further added that 6 members of the Staff Disciplinary Committee that recommended the termination of Claimant’s appointment were also members of the University Governing Council that approved the recommendation; that 3 members of the Investigation Panel were also members of the University Council that gave final approval to the termination of the appointment of the Claimants; that Staff Disciplinary Committee is a Committee of the Governing Council of the University; that he is aware that representatives of the Senate were on the Staff Disciplinary Committee comprising of 9 or 10 members; that the external members of the Governing Council and Representatives of Federal Ministry of Education were not members of the Senate.
5. Submissions on Behalf of the Defendant
At the close of trial and pursuant to the direction of the Court learned Counsel on either side filed their final written addresses for adoption. The final written address of the Defendant was dated 19/2/16 and filed on 22/2/16. In it learned Counsel set down the following 2 issues for determination -
1. Whether the jurisdiction of the court was properly invoked by the Claimants.
OR IN THE ALTERNATIVE
2. Given the circumstances of this case and the evidence before the Honourable Court, whether the Claimants have proved that the termination of their appointment was wrongful.
Arguing issue 1, learned Counsel submitted that the Claimants failed to exhaust the internal complaint machinery before rushing to Court and therefore that the Court cannot assume jurisdiction; that the issue at stake is purely academic which is within the exclusive authority of the Defendant's Senate and Council citing Nnonye v. Anvichie (2005)18 WRN 1 & Messrs N.V. Scheep v. The MV ''S Araz'' (2000)4 WRN 105. Counsel pointed out that by paragraph 53 of the Claimants' pleadings and paragraph 53 of their witness statement, the Claimants clearly indicated that they appealed to the Council of the Defendant but that they approached the Court before their appeal could be considered and that the Claimants are using the Court to sit as an appeal Court over domestic matters of the Defendant. According to learned Counsel the Defendant is governed by S. 9(1) & (6) Section 21(8) & (9), Federal University of Agriculture Act Cap. F22, Laws of the Federation of Nigeria & Universities (Miscellaneous Provisions)(Amendment) Act, 2003 Section 7A(2). Learned Counsel cited S. 21(8) & (9) of Federal Universities of Agriculture Act, Cap. F22, Laws of the Federation of Nigeria, 2004 which state as follows -
Section 21(8) -
''No staff or student shall resort to a law court without proof of having exhausted the integral avenues for settling dispute or grievances or for seeking redress''.
Section 21(9) -
''The Visitor shall be final arbiter on staff and student discipline, and his decision shall not be contestable in any court of law in Nigeria''.
Counsel submitted that the instant suit is akin to asking the Court to usurp the powers of the Senate and or Council of the Defendant; that the Court has a duty to resist the temptation to interfere in the administration of the Defendant to the point of undermining the integrity of the University system citing University of Ilorin & Anor. v. Idowu Oluwadare (2006)6-7 S.C 154 and that the Claimants are bound to exhaust the remedy provided internally before resorting to the Court for remedy citing Adejola v. Bolarinwa (2011)12 NWLR (Pt. 1261) 380 at 392-394. Learned Counsel also referred to Rule 5.12.1 of the University of Agriculture Abeokuta (UNAAB) Senior Staff Rules and Regulation which provides respecting the right of appeal as follows -
''Without prejudice to the procedure for disciplinary action, any aggrieved member of staff who is disciplined or punished under the appropriate regulations shall have the right of appeal through the normal channel to Council. The ruling of the Council on such an appeal shall be final''.
Learned Counsel submitted that Section 21(8), University of Agriculture Act Cap. F22, Laws of the Federation of Nigeria having already prohibits court action by staff without proof of having exhausted all internal mechanisms, the Claimants cannot be heard by the Court citing Owoseni v. faloye (2005)7 SCNJ 357. Learned Counsel urged the Court to resolve this issue in favor of the Defendant.
On issue 2, Counsel submitted that it is the duty of the Claimants to prove that their appointment was wrongfully terminated citing Federal Medical Centre, Ado-Ekiti v. Alabi (2011)38 WRN 80 at 101. Counsel referred to paragraphs 23, 28 and 31 of the Claimants' pleadings and section 18 of University of Agriculture Act as being the basis of the Claimants argument that the proper procedure was not complied with. Counsel referred to Exh. D2 by which Dr. Badmus Chairman of ASUU nominated Dr. A.A. Agboola to represent him on the disciplinary Panel. Counsel also referred to Exh. D3 which listed Dr. B.S. Badmus, Chairman of ASUU as a member of the Panel. Counsel urged the Court to hold that the Claimants failed to prove that their appointment was wrongfully terminated.
6. Submissions on Behalf of the Claimants
The final written address of the Claimants was dated and filed on 14/4/16. In it, learned Counsel set down the following 3 issues for determination -
1. Whether this Honourable Court is not functus officio to determine the issue of jurisdiction raised by the Defendant in its final address.
2. Whether the Defendant complied with the procedure required by law before terminating the Claimants employment.
3. Whether the Claimants were given a fair hearing by the Defendant before the termination of their employment.
On issue 1, learned Counsel submitted that the grounds for the issues canvassed in first issue set down by the Defendant are issues already pronounced upon by this Court in an application brought by the Defendant, heard and dismissed by the Court on 25/3/14 and that that being so this Court lacks power to decide again issues it already decided upon in that Ruling citing Babington-Ashaye v. E.M.A.G. Ent. (Nig.) Limited (2011)10 NWLR (Pt. 1256) 479 at 498. Counsel submitted that notwithstanding this submission, a proper construction of Rule 5.12.1 of the UNAAB Senior Staff Rules and Regulation is that an employee whose employment has been determined without compliance with the procedure for disciplinary action may still have recourse to the court to challenge the non-compliance notwithstanding his or her right of appeal to the Council on procedural issues; that the Rule is limited to the Claimants right to appeal and not to restrict the Claimants' constitutional right of access to Court. Counsel construed the meaning of the phrase without prejudice to mean without loss of any rights in a way that does not harm or cancel the legal rights or privileges of a party citing The Black's Law Dictionary, 9th Edition, page 1738. Secondly, Counsel submitted that to the extent that Rule 5.12.1 of the UNAAB Senior Staff Rules and Regulations purports to oust the jurisdiction of the Court is unconstitutional, unlawful and illegal being fundamental conflict with the provision of Section 6(6), Constitution of the Federal Republic of Nigeria, 1999, as amended citing Madu v. Mbakwe (2008)10 NWLR (Pt. 1093) 293. Learned Counsel finally submitted on this point that the provisions of any law which improperly restrict, impede or curtail a complainant from commencing an action as laid down will be disregarded and declared void and that the Courts will disregard any statute that seeks to regulate and obliterate the judicial powers conferred on them by the express provisions of the Constitution, citing Njikonye v. M.T.N Nig. Com. Ltd. (2008)9 NWLR (Pt. 1092) 339 at 369. Counsel urged the Court to dismiss the preliminary objection raised by the Defendant.
On issue 2, learned Counsel argued this issue from two fronts viz (a) whether the Defendant complied with the procedure prescribed by the statute that established it in the termination of the Claimants employment and (b) whether the Claimants were given fair hearing by the Defendant before the termination of their employment.
On the first leg, Counsel argued that t is the law that where the terms of employment is governed by statute, the employee's employment cannot be lawfully terminated except in the manner prescribed by the statute and that any termination of such employment not in accordance with the prescribed procedure is null, void and of no effect citing Raji v. University of Ilorin (2007)15 NWLR (Pt. 1057) 259 at 275 & University of Nigeria Teaching Hospital Management Board v. Nnoli (1994)8 NWLR (Pt. 363) 376. Counsel submitted that the Claimants were employed by the Defendant a body established by a statute and that Section 17 of Federal Universities of Agriculture Act Cap. F22, Laws of the Federation of Nigeria, 2004 gives the Defendant the power to discipline and remove academic, administrative and professional staff while section 18 of the same Act prescribes the procedure for staff discipline. Counsel argued that the Defendant did not comply with section 18(2) of the enabling Act in that the Chairman of ASUU was not a member of the Investigation Panel though Defendant claimed that the Chairman of ASUU was represented by Dr. A.A.A. Agboola. Counsel submitted that by the provisions of Section 18(2) of Cap. F22, Laws of the Federation of Nigeria, 2004, the Chairman of ASUU on the panel as the word used there is ''shall''. Counsel argued further that assuming the Chairman of ASUU can be so represented, Exh. D2 though admitted does not carry any probative value. According to Counsel, Exh. D2 which purportedly authorised an act of representation that was done between March and April, 2013 ws written on 3/9/13 after a period of 5 months of the conclusion of the act authorized and that indeed Exh. D2 was made after the commencement of this suit. Counsel thus urged the Court to discountenance Exh. D2 as being in violation of Section 83(3), Evidence Act, 2011.
On whether the Chairman of ASUU can be represented in the Investigation Panel, learned Counsel submitted that the word used in section 18(2) of Federal Universities of Agriculture Act, Cap. F22, Laws of the Federation of Nigeria, 2004 is ''shall'' which connotes mandatory discharge of a duty or obligation and when used in a statute, that requirement must be met, citing Nwankwo v. Yar' Adua (2011)13 NWLR (Pt. 1263) 81 at 125 & Shettima v. Goni (2011)18 NWLR (Pt. 1279) 413 at 422. Learned Counsel added that Rule 126.96.36.199 of the Defendant's Senior Staff Rule and Regulations which makes provision for the President or Chairman of the Union to which the staff being investigated belong to be represented at the Investigation Panel is fundamentally in conflict with the express and mandatory provision of section 18(2) of Federal Universities of Agriculture Act Cap. F22 Laws of the Federation of Nigeria, 2004 and that where as in the instant case there is a conflict, the law is settled that the provision of the statute prevails, citing Famfa Oil Limited v. A.G. of the Federation (2003)18 NWLR (Pt. 852) 453 at 468. Counsel urged the Court to hold that the Defendant did not comply with the provision of S. 18(2) of Cap. F22, Laws of the Federation of Nigeria, 2004.
Counsel argued further that the Defendant also did not comply with the provision of Section 18(3) of Cap. F22, Laws of the Federation of Nigeria, 2004 which provides that 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. Counsel submitted that members of the Investigation Panel constituted by the Vice-Chancellor composed mainly of the Defendant's Council members numbering 6 persons as opposed only 3 persons from the Senate and that the obvious intendment of that provision is that members of the Staff Disciplinary Committee should not be drawn from the University Council which has the ultimate and final duty of considering and approving the recommendation of the Staff Disciplinary Committee in order not to make the Council members judges in their own cause for the purpose of fair hearing. Counsel prayed the Court to hold that Defendant not having complied with the provision of section 18 of the Federal Universities of Agriculture Act in terminating the employment of the Claimants the termination is wrongful, null and void.
Issue 3 is whether the Claimants were given fair hearing by the Defendant before the termination of their employment, learned Counsel submitted that the law is trite that the rights of an employee whose employment is regulated by statute cannot be taken away without observance of the principles of fair hearing, citing Ezenwa v. KSHSMB (2011)9 NWLR (Pt. 1251) 89 at 126. Counsel submitted that membership of the Defendant's Council which considered the Report of the Staff Disciplinary Committee and gave approval to the recommendation of the Staff Disciplinary Committee to terminate their employment was constituted by persons who were members of the Investigation Panel and the Staff Disciplinary Committee and as such the principle of alterem partem was not observed. Counsel referred to evidence of CW1 Claimant, paragraphs 45 to 50 of CW1 as well as paragraphs 7 and 8 of the 1st Claimant's statement on oath filed on 28/1/14 and submitted that the evidence was not controverted or challenged. Counsel urged the Court to hold that the Claimants are entitled to all the reliefs sought.
The Defendant subsequently filed a reply on points of law dated 20/4/16 and filed on 25/4/16.
I have read and understood all the processes filed by learned Counsel on either side as well as listened to their oral submissions in Court. I also listened attentively to the testimonies of witnesses called at trial, watched their demeanor and evaluated all the exhibits tendered and admitted. Having done all this, I simply narrow the issue for the just determination of this case down to the following -
1. Whether this Court can reopen or reconsider the issue of its jurisdiction over this case.
2. Whether the Claimants' employment was wrongfully terminated.
Issue 1 as stated has become imperative in view of the argument canvassed by the learned Counsel to the Defendant on behalf of the Defendant. The Defendant had earlier filed a Notice of Preliminary Objection filed on 6/2/14. The application was for an order of Court striking out this suit on the ground inter alia that the Court lacked the requisite jurisdiction to hear and adjudicate on same. The said application was heard and determined on 25/3/14. This Court had made a final pronouncement on the issues raised in said preliminary objection. Having done so, the only option available to the Defendant is to appeal against the said Ruling of this Court delivered on 25/3/14. To now ask this Court to revisit the said Ruling is an invitation to request this Court to sit on appeal over its Ruling. In Senator Chris Adighje v. Hon. Nkechi J. N. Nwaogu (2008) LPELR-3626 (CA) the Court of Appeal, per Eko JCA, (as he then was) stated the position of the law thus -
"No trial judge or court has any legal justification to alter the effect of his own ruling or decision on an issue previously decided by him in the course of the proceedings: See NNAJIOFOR v. UKONU (1985) 2 NWLR (Pt.9) 686 at p.706. He can not also, as a general rule, set aside his own or another Judge's previous ruling. Rehearing the matter upon which he has delivered his decision or judgment is not his function, but the function of the appellate or superior court: See GRACE AMANOBA v. ALEX OKAFOR (1966) 1 ALL NLR 205 at 207; CHIEF UKU V. OKUMAGBA (974) 1All NLR (1) 475."
On the second issue, the law is trite that when an employee alleges wrongful termination of his employment, the burden rests on him to place before the Court the terms and conditions of his employment including how his employment could be lawfully terminated and how it has been wrongfully terminated. See Federal Medical Centre, Ido Ekiti & Ors. v. Isaac Olukayode Olajide (2011) LPELR-4150 (CA). There is consensus among parties that the employment of both Claimants is regulated by Federal Universities of Agriculture Act. Cap. F22, Laws of the Federation of Nigeria, 2004. What then are the relevant provisions of the statute in this regard? While section 17 of the Act deals with removal and discipline of academic, administrative and professional staff, section 18 deals with the procedures to follow in disciplining staff. Both sections provide as follows -
''17. Removal and discipline of academic, administrative and professional staff.
(1) If it appears to the Council that there are reasons for believing that any person
employed as a member of the academic, administrative or professional staff of the University, other than Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall-
(a). give notice of these reasons to the person in question;
(b). afford him an opportunity of making representations in person on the matter;
(c). appoint a Staff Disciplinary Committee,
And if the Council, after considering the report of the Staff Disciplinary 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 case of misconduct by a member of staff which in the opinion of the Vice-Chancellor is prejudicial to the interests 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 the 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 officer; 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 his 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 officer; 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 terms and conditions of his service; or
(e). conduct which the Council considers to be generally of such nature as to render the continued appointment or service of the person concerned
prejudicial or detriment to the interest of the University.
(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on
half pay and the Council shall 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 him); or
(b) whether to reinstate such person in which case the Council shall restore his full emoluments with effect from the date of suspension; or
(c) whether to terminate the appointment of the person concerned in which case such 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 as might have been withheld) as the Council may determine.
(EDITORIAL NOTE: Numbering as per Gazette.)
(5) 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.
(6) 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 endeavor to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.
(7) Nothing in the foregoing provisions of this section shall-
(a) apply to any directive given by the Visitor in consequence of any visitation; or
(b) prevent the Council from making regulations for the discipline of other categories of workers of the University as may be prescribed.
18. Procedures for staff discipline
(1) The Vice-Chancellor or Senate shall constitute an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff.
(2) The Investigation Panel shall include the President or the Chairman of the union to which the staff being investigated belongs.
(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 Investigating Panel.
(4) The report and recommendation of the Staff Disciplinary Committee shall be forwarded to the Council for consideration and decision.
It is imperative that these two sections be read together in order that justice may be done in this case. For the law is trite that in ascertaining the real or true meaning or import of the provisions being construed or interpreted, the provisions of the Constitution or statute must be construed as a whole. See the case of Jolly Jevoru Nyame v. F.R.N. (2010) 7 NWLR (PART 193) 344 at 399. See also Kanu v. Asuzu (2015) LPELR-24376 (CA).
Therefore from the joint reading of the above sections, it is apparent that for purpose of disciplining or removing a staff of the Defendant especially academic, administrative and professional staff, the Defendant must take the following steps - a. give notice of these reasons to the person in question; b. afford him an opportunity of making representations in person on the matter; c. appoint a Staff Disciplinary Committee and the following procedure shall be followed (1) The Vice-Chancellor or Senate shall constitute an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff; (2). The Investigation Panel shall include the President or the Chairman of the union to which the staff being investigated belongs; (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 Investigating Panel and (4). The report and recommendation of the Staff Disciplinary Committee shall be forwarded to the Council for consideration and decision.
By Exh. TB6, the 1st Claimant was informed of the allegation against her and requested to react as appropriate not later than 28/2/13. The 2nd Claimant was not even so informed. In other words, no Query was issued on the 2nd Claimant respecting the allegations against him. Now was the mandatory procedure stated in section 18 of the Federal Universities of Agriculture Act complied with in terminating the appointment of the Claimants? By paragraphs 1 and 2 of their statement of facts, the Claimants are academic staff of the Defendant. These facts were not in any way challenged. These facts without doubt makes the Claimants members of the Academic Staff Union of Universities (ASUU). Now, by section 18(2) of Federal Universities of Agriculture Act must be a member of the Investigation Panel to investigate the allegation of plagiarism leveled against the Claimants. The word used in that section of the statute is shall. The implication of this is that it is mandatory. Exh. D4 is the Report of the Investigation Panel that investigated the allegation against the Claimants. Dr. B.S. Badmus indicated as the Chairman of ASUU was said to have been represented on that Panel by Dr. A.A.A. Agboola. Without much ado it is sufficient to hold as it is apparent that having Dr. Agboola in a representative capacity on that Panel was not in conformity with the provision of the statute. The statute did not state that the Chairman of ASUU or his representative is to be a member of that Panel. The mandatory provision of the S.18(2) of Federal Universities of Agriculture Act, Cap. F22 Laws of the Federation of Nigeria 2004 is that -
''The Investigation Panel shall include the President or the Chairman of the union to which the staff being investigated belongs''.
I note that on Exh. D3, dated 18/3/13, Dr. B.S. Badmus, Chairman, ASUU, was indicated as a member of the Investigation Panel. The heading of that exhibit is thus ''Constitution of an Investigation Panel to Look into an Alleged case of Plagiarism Involving An Academic Staff in the Department of Chemistry - Dr. J.T. Bamgbose''. Yet on Exh. D4 Dr. Badmus was alleged to have been represented by a Dr. Agboola. Again, no reason was offered as to why Dr. Badmus the ASUU Chairman did not attend the Panel meeting in person. There is also no information given as to who nominated Dr. Agboola to represent the ASUU Chairman on the Panel. It would appear that efforts were made by the Defendant to block some holes in its case hence Exh. D2. That exhibit was dated 3/9/13 a period of about 5 months after the completion of the investigation against the Claimants. In it, the Defendant's Chapter of ASUU wrote
''... to confirm that Dr. A.A.A. Agboola represented the Union in the case of plagiarism involving Dr. (Mrs.) J.T. Bamgbose and others of the Department of Chemistry in line with Section 188.8.131.52 of the Senior Staff Rules and Regulation of the University''.
For more than one reason, this exhibit could not serve the purpose for which it was intended by the Defendant. Firstly, it was made pursuant to Senior Staff Rules and Regulation of the Defendant. That document is an internal document made by the Defendant. Its provision cannot over ride an express provisions of the statute establishing the Defendant. The law is trite that the provisions of rules of court cannot override that of a statute on a subject matter or an issue. Invariably, where there is a conflict between the provisions of a statute and that of rules of court, the provisions of the statute shall prevail being superior in status. See Nwanezie v. Idris (1999) 3 N.W.L.R. (Pt.279) 1 at 16. See also Touton S.A v. Grimaldi Compagnia Di Naviga Zioni S.P.A & Ors. (2010 LPELR-5033 (CA).
Secondly, it alleged '' ... that Dr. Agboola represented the Union in the case of plagiarism ...''. Unfortunately, only Dr. Badmus could have legitimately be a member of that Investigation Panel. Indeed only Dr. Badmus could have nominated a representative if at all so allowed by the statute. But Dr. Badmus, Chairman of ASUU had no such power to nominate a representative. This is because the word used is shall which is mandatory. See Odusote v. Odusote (2011) LPELR-9056 (CA). Thirdly and perhaps of critical importance, this case was commenced on 16/7/13 and a supposed confirmation was made about 5 months after. In order words, this exhibit was generated by the Defendant at a time when this case was already pending in Court. This is contrary to Section 83(3) of the Evidence Act, 2011. Although this exhibit was admitted in evidence, wrongly though, this Court is not foreclosed from doing the proper thing at the stage of evaluating the evidence led and admitted. The law is settled that when a matter or document has been improperly received in evidence, both the trial court and the appeal court have powers to expunge it from their record . See Ita v. Ekpenyong (2001) 1 NWLR (Pt. 695) 587 at 613 per Ekpe JCA; Ajayi v. Fisher (1956) SCNLR 279; Sadhwani v. Sadhwani (Nig) Ltd (1989) 2 NWLR (Pt. 101) 72; Owonyin v. Omotosho (1961) 2 SCNLR 57, Chigbu v. Toninas (Nig) Ltd (1999) 3 NWLR (Pt. 593) 115; Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261.Therefore I expunge Exh. D2 from this case and place no reliance on same for the just determination of this case.
I hold there are certainly valid reasons why the Legislature made a mandatory provision for the presence of the President or Chairman of the Union to which a staff to be disciplined or being investigated belongs must be a member of that Investigation Panel. This must be to accord credibility to the Panel and ensure that the interest of the staff concerned is seen adequately protected. From the analysis and reason offered thus far, I find grounds to hold and I hold that Dr. B.S Agboola, Chairman, ASUU not being a member of the Investigation Panel set up to investigate the allegation against the Claimants, the provision of S. 18(2), Federal Universities of Agriculture Act was not followed or complied with as required.
Secondly, the provision of S.18(3). Federal Universities of Agriculture Act Cap. F22, Laws of the Federation of Nigeria, 2004 also comes in to play. The section provides that
''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 Investigating Panel'' .
In paragraphs 46-49 of her witness deposition, the CW1 testified that 18 out of the 19 members of the Council were present, sat and approved the decision to terminate their appointment; that out of the 18 members of Council that sat, 3 of them were members of the Investigation Panel (inclusive of the Chairman of that Panel) which investigated the allegation in the first place in addition to 6 other members of the Staff Disciplinary Committee which recommended the termination of their appointment the termination of their appointment and whose report the Council considered and approved. It was also the evidence of the DW1 that membership of the Defendant's Council was also constituted by persons who were members of the Investigation Panel and the Staff Disciplinary Committee being a total of 9 persons out of 18 and that the said 9 persons who were members of the Investigation Panel and members of the Staff Disciplinary Committee respectively greatly influenced the decision of the Defendant's Council. Even from the evidence of its own lone witness, it is apparent that the Defendant failed to comply with the provision of the statute relating to procedure to adopt in matters of discipline of staff of the Defendant. The crux of this testimony is that the provision of section 18(3) of the Act setting up the Defendant respecting the procedure to following disciplining staff of the Defendant was not followed in the instant case. The evidence of the CW1 was not challenged by the Defendant. Indeed, the witness was not cross examined on these issues at trial even though the Defendant had opportunity to do so. Besides, there is no evidence before the Court asserting the falsity of the evidence given. The law is trite that in situation as this, the Court is bound to accept the available evidence and act on same accordingly. See Ishola v. Ishola & Anor. (2014) LPELR-23082 (CA).
By the statute, members of the Investigation Panel must not be the same as those of Staff Disciplinary Committee. The legislative intention behind this is so that members of one would not be a mere rubber stamp of whatever decision or recommendation of the other. It must also be to ensure that matters of discipline of staff are properly considered by two separate bodies with separate members at two different levels before a decision is taken. From the facts of this case, the evidence led, there are sufficient grounds to hold and I so hold that the termination of the employment of the Claimants are wrongful for none compliance with statutory provisions respecting same. The employment of the Claimants is one regulated by the statute setting up the Defendant. That is to say that the employment of the Claimants is one with statutory flavor. In defining an appointment with a statutory flavour, the court held in C.O.E. Ekiadolor v. Osayande (2010) 6 NWLR (Pt.1191) 423 at 450 thus. "......An employment will be held to be tangled with statutory flavour if the employment or contract of service is one in which the terms or tenure of the employee is protected by either statute or regulation''. In Bamigboye v. University of Lagos (2001) FWLR (PT.32) 12, 10 NWLR (Pt.622) 90, the Supreme Court said: "When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations made thereafter, any person holding that office or in such employment enjoys a special statute over and above the ordinary master and servant relationship.
In order to therefore successfully tamper with same, the Defendant is under a statutory obligation to comply with the procedure specified under the statute and failure to do which renders any punishment prescribes as null, void and of no effect. In Dr. Adeosun Oluseyi Olalekan v. management Board, University of Maiduguri Teaching Hospital (2012) LPELR-20099 (CA) the Court of Appeal per Omoleye J.C.A restated the position of the law as follows -
'' ... , in an employment governed by statute, that is, legislation, the procedures for employment and discipline which include dismissal or termination of an employee are as clearly prescribed by that statute or legislation. Employment with statutory backing must therefore be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant provisions of the statute is null, void and of no effect. See the cases of: (1) U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) p.647 at p.664 and (2) Ibama v. S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) p.364.''
I so hold in the instant case as well. Having so held, I further declare that the Claimants were denied fair hearing in the procedure leading to the termination of their appointment by the Defendant, I order their reinstatement immediately and payment to them of their salaries from May 2013 till the day of this Judgment.
Before I draw curtain on this Judgment, it is amazing the speed with which the termination of the employment of the Claimants was accorded prominence in the media. The employment of the Claimants was terminated by a letter dated 10/5/13. The same was published in the Defendant's News Flash of the same day 10/5/13. See Exh. TB16. On the 22/5/13 3 national Newspapers viz Compass Newspaper, Daily Sun Newspaper and Punch Newspaper published the story of the termination of the employment of the Claimants See Exh. TB17, Exh. TB18 & Exh. TB19. The Defendant for whatever reason was in a hurry to let the whole world know that it had terminated the employment of the Claimants on ground of plagiarism. This is notwithstanding the fact that the Claimant had the right to file an appeal. Defendant did not even wait for the Claimants to so exercise their said right. Could it mean that the Defendant had foreclosed any success of appeal by the Claimants? This scenario gives an impression that there is more to the allegation against the Claimants rather than the issue of plagiarism leveled against the Claimants. In a country of about 170 million, apart from the entire members staff of the Defendant and the entire members of the academic community who would have heard of the incident and several millions of others who would have read any of these 3 Newspapers that carried the news item respecting the termination of the employment of the Claimants and the ground for so doing, how many of all these people would hear of this Judgment that is in favor of the Claimants. Whoever was responsible as a staff of the Defendant for the publication of the said report in the media only succeeded in denting the image of the Claimants as well as that of the Defendant. Such an employee of the Defendant no doubt has done great disservice to the name and image of the Defendant as a citadel of learning and research. No doubt the names of the Claimants and their reputation within the Nigerian academic community is negatively affected. I thus direct the Defendant to accord the reinstatement of the Claimants into their employment the same media reportage as the news of the termination of their appointment for plagiarism.
Now, this Court, the National Industrial Court of Nigeria, is both a Court of Law and Equity and it is empowered to administered same concurrently. See S. 13, National Industrial Court Act, 2006 and in event of any conflict between the rules of equity and the rules of law, the rules of equity are to prevail. See S. 15, National Industrial Court Act, 2006. This Court is also empowered to ensure determination of matters brought before it completely and finally. In this respect S. 14, National Industrial Court Act, 2006 states -
''The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided''.
I have examined all the circumstances of this case and the unenviable role of the Defendant in denting the image of the Claimants among their peers in academic. I hold that the circumstances of this case are such that entitle the Claimants to compensation within the provision of Section 19(d), National Industrial Court Act, 2006. The Defendant is here ordered and directed to pay to each of the Claimants the sum of One Million Naira only as compensation.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I -
1. Declare that the termination of the Claimant’s employment by the Defendant vide its letters of termination dated 10/5/13 served on them respectively is wrongful, unlawful, illegal, null and void and of no effect whatsoever being contrary to the procedure on Staff discipline outlined in Section 18 of the Federal University of Agriculture Act. Cap. F22 Laws of the Federation of Nigeria, 2004.
2. Declare that the termination of the Claimants employment by the Defendant based on the final decision of the University Council composed of members of the Investigation Panel and members of the Staff Disciplinary Committee whose report it considered and approved is unlawful, null and void and of no effect whatsoever for being in breach of the principles of natural justice and fair hearing.
3. Declare that the Claimants were denied fair hearing by the Defendant in the procedure that led to the termination of their appointment.
4. Declare that the Claimants are entitled to their salaries and allowances without loss of position and privileges from the date of purported termination of the employment until date of judgment.
5. Set aside the purported termination of the Claimants’ employment with the Defendant and reinstate them to their posts in the Defendant without loss of seniority, privileges, entitlements and allowances.
6. Order and direct the Defendant to pay to the Claimants their salaries and allowances from the month of May, 2013 to the date of judgment in this suit at 15% interest rate per annum from 2013 until final liquidation of the entire sum due..
7. Order and direct the Defendant to pay to each of the Claimants the sum of One Million Naira (=N=1,000.000.00) only as compensation.
8. Order and direct the Defendant to accord the reinstatement of the Claimants into their employment the same media reportage as the news of the termination of their appointment on allegation of plagiarism.
9. Order and direct the Defendant to pay to the Claimants the sum of =N=200,000.00 as the cost of this suit.
All the terms of this Judgment are to be complied within 30 days from today.
Judgment is entered accordingly.
Hon. Justice J. D. Peters