IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Date: October 12, 2023 SuitNo:NICN/PHC/145/2019
Between:
Professor Tamunonimim A. Ngerebo-A - Claimant
And
Rivers State University - Defendant
Representation:
E.I. Ahiakwo (Miss.) for the Claimant
P. Enebeli Principal State Counsel, Rivers State Ministry of Justice for the Defendants.
COURT’S JUDGMENT
1.0. On November 25, 2019 the claimant sued the defendant by way of complaint, seeking for this Court’s award on the following reliefs:
i. A declaration that the dismissal of the claimant from its service is wrongful, unlawful, null and void.
ii. An order to reinstate the claimant in its service with the full complement of his office as Professor from 14/10/2019 until the reinstatement.
OR, in the Alternative:
iii. N1,000,000,000.00 (One billion naira) damages for the wrongful dismissal of the claimant.
iv. An order of perpetual injunction restraining the defendant and its agents from further harassing claimant with frivolous and unfounded allegations borne out of witch-hunt and vendetta or failing to give claimant fair hearing before purporting to take disciplinary action against him.
1.1. Other initiating processes except the Statement of Facts, were filed along with the Complaint by the claimant supposedly in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its Statement of Defence together with other defence processes in compliance with the Rules of this Court.
2.0. The Case of the Claimant as Pleaded
The case of the claimant in his pleadings is that he was employed by the defendant, the Rivers State University who then was called Rivers State University of Science and Technology (RSUST). That during the course of his said employment, he achieved several heights in his career including his promotion to the rank of Professor. Unfortunately, he was suspended by the defendant based on the allegation/petition from one Rita Godwin Ifeyinwa before he was unlawfully dismissed by the defendant. The claimant went on that he was denied fair hearing and the conclusion of his dismissal was reached by an unknown panel, which is irregular and to his prejudice.
3.0. The Case of the Defendant as Pleaded
The case of the Defendant in its pleading on the other hand, is that the Claimant was an employee of the Defendant up till his dismissal for acts of misconduct. The defendant averred that the Claimant’s dismissal was in accordance with the laws and rules governing the Claimant’s appointment. The defendant went on that it set up a Committee on the allegations of sorting, sexual harassment, and other vices amongst lecturers (“the Committee”) which invited affected persons including the Claimant. In the course of its sitting, the Claimant admitted his wrongdoings and pleaded for forgiveness. The Committee submitted its report to the Defendant’ Council and on the bases of which the Defendant dismissed the Claimant.
4.0. During the hearing of the case, the claimant testified/gave evidence as CW1 while Tamuno Williams testified as DW1 for the Defendant. The court subsequently directed counsel to the parties to file their respective final written addresses in line with the Rules of this Court and they complied with the said direction.
5.0. Defendant’s Written Arguments
In the defendant final written address at page 177 of the record, its counsel raised a sole issue for the determination of the court this way:
Whether the Claimant’s dismissal from the services of the Defendant for misconduct is in accordance with the laws and regulations governing the Claimant’s employment?
6.0. Arguing this issue, counsel submitted that it is not in dispute that the Claimant was an employee of the Defendant and that he was dismissed from his employment by the Defendant. To counsel, the only issue before the Court for determination is whether the dismissal of the Claimant in consolance with the terms of his employment. Counsel contended that the Claimant’s letter of regularization of appointment, Exhibit C.2 provides that the Claimant’s appointment is subject to the terms of conditions of service and to the regulations governing the senior staff of the Defendant. The Regulations governing the Conditions of Service of Senior Staff of the Defendant was tendered as Exhibit C1.
6.1. Referring to page 72 of the Exhibit C1 the regulation, (see pages 17, 19 and 136 of the file for this exhibit) counsel submitted that the Claimant’s dismissal is clearly in line with the terms of his employment. He further submitted that irrespective of the conditions of service governing an employment, an employer is entitled to dismiss an employee for misconduct, citing Ajayi v. Texaco Nigeria Limited [1987] 3 NWLR (Pt. 62) 577 at 579; NJC & Ors v. Senlong & Ors. [2010] LPELR-4582 (CA) Pp 37; Yusuf v. Union Bank of Nigeria [1996] LPELR – 3537 (SC) 1 and Olarewanju v. Afribank Plc [2001] LPELR – 2573 (SC) 1 at 26 – 27.
6.2. Counsel went on that despite the Defendant’s power to dismiss an employee for misconduct irrespective of the employee’s terms and conditions of service, Exhibits D.1 and D.3 respectively show that the Claimant was afforded the opportunity of appearing before the Council’s Fact Finding Committee of the Defendant on allegations of Sorting, Sexual Harassment, and other Vices amongst lecturers. He referred the court to the extract from the Minutes of the 25th Regular Meeting of the 12th Governing Council held on Thursday, the 10th day of October, 2019 (Exhibit D.3 – see pages 105 to 112 of the file) at page 4 of Exhibit D.3.
6.3. Counsel noted that it is before the court that the Claimant did not challenge Exhibit D.3 and also that the Claimant’s counsel did not cross examine the Defence’s witness on the content of Exhibit D.3. He submitted that an unchallenged and uncontroverted evidence contained in Exhibit D.3 is deemed to have been admitted by the Claimant, citing Habib (Nig.) Ltd. v. Wahab Opomulero [2000] 15 NWLR (Pt. 690) 315; Usman v. Baba [2005] 5 NWLR (Pt. 917) 113 and Balogun v. U.B.A Ltd [1992] 6 NWLR (Pt. 247) 336 at 354.
6.4. Counsel went on that assuming without conceding that the Claimant adduced any oral evidence that is contrary to Exhibit D.3, his contention is that such oral evidence cannot be allowed to challenge the documentary evidence (Exhibit D. 3(i)), citing Ogbe v. Kogi State Govt. & Ors. [2018] LPELR-44796 (CA).
6.5. On the Claimant’s assertion that the committee did not avail him the documents pertaining to the accusations against him, counsel argued that this is spurious and an afterthought. He submitted that Exhibits D.1 (i) and D.3 (i) show that he was confronted with the manipulated students’ results and the Deposit Slip of the Money paid into his account. It is trite law that the best evidence of payment of money into a Bank Account is through production of the bank teller. Therefore and to him, Exhibit D.2 (i) furnishes conclusive proof of payment made by the students into the account of the Claimant, citing Salleh v. Bank of the North Limited [2006] All FWLR (Pt. 310) 1600 at 1609.
6.6. Counsel submitted further that in declaratory relief, the Claimant succeeds on his own evidence and not on the weakness of the Defendant’s defence. He went on that the Claimant cannot even rely on the evidence of the Defendant in order to succeed, citing Dmez Nig. Ltd v. Nwakhaba & 3 Ors. [2008] 2 SC (Pt. 111) 142 at 152 paras. 10 – 25. See also Offongo v. A. P. C. [2022] 4 NWLR (Pt. 1821) 543 at 573 – 574. Counsel argued again that the Claimant did not adduce any evidence to show that the account where the monies were paid does not belong to him. Also, he did not adduce any evidence to show that the students he caused to be graduated did not have more than two carry-overs. Therefore, the evidence of the wrongdoings of the Claimant as adduced by the Defendant, remains very formidable and unwavering.
6.7. On the claimant’s assertion that an Adhoc Committee set up by Dean, Faculty of Management Sciences cleared him of the allegation of collecting money from students; counsel submitted that the Defendant’s Governing Council Fact Finding Committee supersedes the Faculty Adhoc Committee set up by the Dean, Faculty of Management Sciences.
6.8. As regards the claimant’s contention that the Committee set up by the Governing Council of the Defendant is unknown to law and the Committee ought to have submitted its report to the Council/Senate Joint Committee; counsel referred the court to Appendix One at page 97 of Exhibit C1 and further submitted that, neither the Claimant nor any 3 members of the Defendant’s Council made any request for the constitution of Joint Committee of the Council and the Senate to investigate the matter pertaining to the Claimant in line with the provisions of Exhibit C1 as emphasized above. Consequently, Council/Senate Joint Committee was not constituted and so, the Claimant is answerable to the Council only. He went on that the Defendant’s Council duly heard the Claimant, through the Council’s Fact Finding Committee before the Defendant’s Council took the decision to dismiss the Claimant from the Defendant’s employment. Therefore, the Claimant cannot fault his dismissal from the Defendant’s employment. He referred the court to Olarewaju v. Afribank Nigeria Plc. [2001] LPELR-2573 (SC) (Pp 26 – 27) and Jubril v. Mil. Admin., Kwara State [2007] 3 NWLR (Pt. 102) CA.
6.9. In addition, counsel submitted that the Claimant was invited before the Defendant’s Fact Finding Committee where he was confronted with allegations against him, afforded the opportunity of defending himself and was afforded fair hearing, before his dismissal. That, assuming without conceding that the rules of fair hearing were inadvertently breached, it still does not apply to domestic committees, citing Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & Ors. [2017] 14 NWLR (Pt. 1577) 410, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263 where it was held that breach of fundamental rights under Section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties.
6.10. Counsel concluded in urging the court to find that the Claimant was rightly dismissed and resolve the issue for determination in favour of the Defendant and against the Claimant.
7.0. Claimant’s Final Written Arguments
In the Claimant final written address at page 197 of the record, his counsel raised two issues for the determination of the court this way:
i. Whether the claimant has proved that his dismissal from service under the employment of the defendant was done in violation of the Regulations governing the Conditions of Service of Senior Staff – thereby rendering his dismissal wrongful, unlawful, null and void.
ii. Whether the claimant is entitled to the relief sought in his statement of claim.
8.0. Arguing issue one, counsel referred the court to paragraphs 1 – 3 of the claimant‘s statement of claim, Exhibit C.2 and the Conditions of Service of Senior Staff, marked as Exhibits C1 and C.1 (i) respectively and to Fut, Yola v. Madiwuya [2013] All FWLR (Pt. 677) 753 at 762 and N.I.I.A v. Ayanfalu [2007] 2 N.W.L.R. (Pt. 247) at 265. Counsel submitted that the rules that govern the relationship between both parties are the Conditions of Service of Senior Staff, a subsidiary legislation rooted in Rivers State University of Science and Technology Law and the claimant’s letter of appointment. Counsel submitted that given the statutory flavour of the claimant’s employment, his removal from the service by the defendant ought to be done in compliance with the provisions of the Regulations, citing Olaniyan v. UNILAG [1985] NWLR (Pt. 9) 599, paragraph 1.2(f) & (5) of the Rivers State University Conditions of Service of Senior Staff, states that “A member of staff shall not be terminated or dismissed in accordance with these regulations unless Appendix II which is Section 17 of the University Law is fully complied with.”
8.1. Counsel submitted that the claimant’s appointment was wrongfully terminated on October 14, 2019 but with retrospective effect from October 10, 2019 on allegation of Gross Misconduct bordering on Sorting, and Extortion of Money from students referring to Exhibit C21. Counsel went on that before the claimant’s dismissal, he was never issued a query. Rather, he was given or sent an invitation to appear before a Fact-Finding Committee to answer to certain allegations. When he ought to have been summoned before the Council/Senate Joint Committee on Staff Discipline, rather he was made to barely defend himself before a non-statutory panel, set up to investigate him. He continued that the dismissal was in total disregard of the provisions of the Regulation under Disciplinary Matters. Therefore, it constitutes a wrongful, unlawful, null and void dismissal.
8.2. Counsel again submitted that the claimant’s allegations shift the burden to the defendant to prove that the claimant was dismissed in compliance with the Regulation, citing Babatunde Johnson and Anor v. Maja & Ors. [1951] 13 WACA 290. To counsel, the defendant in this instance has not provided any evidence proving the issuance of query as a preliminary step to the allegations against the claimant. He maintained that an investigation does not operate in a vacuum.
8.3. Counsel further submitted that the Committee in question does and cannot operate in the same capacity as the Staff Disciplinary Committee, referring to paragraph 3 of the claimant’s suspension letter, Exhibit C12, the claimant’s Recall from Suspension, Exhibit C15 and to Section 17(1) (b) of the University Law. Counsel also noted that the claimant was not given an opportunity to cross- examination his accusers as Fair hearing requires that a person must be given not only an opportunity but a fair opportunity to cross-examine his accusers. See: Garba v. University of Maiduguri [1986] 1 NWLR (18) 550, 618; Section 36(1) of the Constitution of Nigeria 1999 and Carlen (Nigeria) Limited v. University of Jos [1994] 1 NWLR (323) 631, 656(22).
8.4. On the issue of the teller, Exhibit D.2, the defendant alleged that the claimant admitted receiving payment of N150,000.00 into his account by students, through his agent Kingsley Cheta Uzah. Counsel submitted that the law is clear that he who asserts must prove, citing Section 131(1) of the Evidence Act, 2011. He again submitted that the defendant has not established a new case against the claimant as the petition by Rita Godwin Ifeyinwa still forms the bedrock upon which the second investigation was carried out and pitiful exercise was a mere witch-hunt against the claimant. He contended that this is a petition on which the claimant was eventually cleared after full investigation by the Disciplinary Committee. Counsel argued that the defendant’s action to dismiss the claimant based on the same offence he was previously cleared by a Statutory Disciplinary Committee, runs foul on the rule against double jeopardy, citing Benard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 481.
9.0. Arguing issue two, counsel submitted that having established that the defendant breached the Conditions of Service, legally binding on both parties, this court is to hold that the dismissal of the claimant from the service of the defendant is wrongful, unlawful, null and void. He again submitted that the law has it that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office and that he is entitled to a consequential relief of reinstatement with the full complement of his office as a Professor from October 10, 2019 until the reinstatement, citing Kwara Polytechnic Ilorin v. Oyebanji [2008] All FWLR (Pt. 447) 199 and Okeme v. Civil Service Commission, Edo State [2001] FWLR (Pt. 36) 873.
9.1. Counsel went on that the Defendant has failed to establish a reasonable explanation for the second investigation of the claimant in which the Governing Council of defendant in its meeting held on October 10, 2019 (Exhibit D.3) merely depended on the Interim Report of the Fact Finding Committee (Exhibit D.3 – Annexure B) and simply adopted its findings and recommendations. Counsel noted that the defendant failed to respond to paragraphs 4 (vii), (ix), (x), (xi), (xii), (xiv) of the Statement of Material Facts. He further submitted that these paragraphs constitute the pleadings and evidence of the claimant and are deemed admitted, citing Vincent U. Egharevba v. John A. Osagie [2009] 40 NSCQRP. 469 @ p. 497.
9.2. In conclusion, counsel submitted that the proceedings of the Fact Finding Committee is a none-statutory body and was conducted in clear violation of the claimant’s right to fair hearing guaranteed by section 36(1) of the 1999 Constitution (as amended). The power exercised by the Committee was wrongly delegated to it as it was not a Disciplinary one. He went on that with the claimant’s employment being statutory in nature, the defendant had no legal right to determine it by dismissal without first complying with the Regulations set down for the claimant’s removal. And that any other manner of determination of the claimant’s employment that is inconsistent with the relevant statute is null and void and of no legal effect, citing NEPA v. Ango [2001] 15 NWR (Pt. 737) 627 at 631and urged the Court to so hold.
10.0. COURT’S DECISION
I have read through the facts of this case as presented by the parties together with their evidence, the written arguments of their counsel including their cited authorities; from all of these I am of the considered view that the following issues need to be resolved by the Court between the parties:
i. Is the dismissal of the claimant from the services of the defendant unlawful, null and void?
ii. Is he entitled to re-instatement or to compensation of N1,000,000,000.00 (One Billion Naira)?
10.1. Before going to the substance of this case, let me make some remarks. While going through the file in preparation for this judgment, I noticed that the claimant did not file any pleading as required by the Rules of this Court. Order 3 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is on Complaint and its accompanying processes. Order 9 (a) of the NICN (CP) Rules, 2017 states that “a statement of facts establishing the cause of action” shall accompany the complaint.
10.2. In fact, Order 3 Rule 21(1) of the Court’s Rules is to the effect that where the Claimant fails to comply with Rules 7, 8 and 9 of Order 3 of the Rules of this Court, his originating process shall not be accepted for filing at the Court’s Registry. And, Order 3 Rule 21(2) of the NICN (CP) Rules, 2017 gave the defendant right to challenge the competence of the action filed by the Claimant by filing a motion on notice within 7 working days from the date of receipt of the originating processes.
10.3. Nevertheless, in paragraph 4 of the complaint at page 1 of the processes’ file, is the claimant’s “statement of material facts”. In my considered view, this is not the same as the “Statement of facts” required to accompany the complaint under Order 3 Rule (9) (a) of the NICN (CP) Rules, 2017 and I so find. As it is, the claimant technically has no pleadings before the Court on this case.
10.4. The claimant’s processes in question ought to have been rejected at the Court’s Registry at the point of filing but it was not, neither did the defendant challenge the claimant’s action on this vital omission as required by the Rules of Court. It is beyond contest that the duty of a Court in all matters brought before it for adjudication is to do substantial justice and that the concept of justice is the backbone and life-wire of peaceful co-existence in any given society. And so, the Court of law is enjoined to eschew adherence to strict legal niceties where they impede the doing of substantial justice; see Abdurrahman v. Abdulhamid [2014] LPELR-23592(CA) (Pp. 30-31 paras. E).
10.5. Therefore and notwithstanding the fact that this complaint is not accompanied with statement of facts and was erroneously accepted by the Registry of this Court without any objection from the defendant, this Court is prepared to resolve this case on its merit as presented by both parties in order to do substantial justice to it. The court will, in the circumstance, take cognizance of the “statement of material facts” on the complaint as the defendant has joined issues with those facts. Claimant’s counsel is to take notice of this error and avoid such omission in his future dealing with the court.
11.0. What Are the Documents That Regulated the Contract of Employment Between The Parties in this case?
In paragraphs i, ii, iii & iv of the Statement of Material Facts included in the complaint, the case of the Claimant is that he was employed by defendant in its days as Rivers State University of Science and Technology (RSUST) in 2001 and that the employment ran for eighteen years, up to October 14, 2019 when he was dismissed. In paragraph 1 of the Statement of Defence, the Defendant admitted paragraphs i, ii, iii, iv, v, vi, vii, viii, ix, x, xi, xii, xiii & xiv of the Statement of Material Facts only to the extent that the Claimant was employed by the Defendant and that the Defendant is a tertiary institution.
11.1. The letter of Appointment of the claimant is titled “Regulation of Appointment (Senior Staff).” It is Exhibit C 2 before the Court and it is at page 26 of the record. Paragraph 2 of this letter provides that the Claimant’s appointment is subject to the terms and Conditions of Service and Regulations governing the Senior Staff of the Defendant. The said Regulations Governing the Conditions of Service of Senior Staff of the Defendant is Exhibits C1 and C.1 (i) before the Court at pages 19 to 25 and 136 to 343 of the Record respectively.
11.2. Section 11, paragraph f (5) of the Regulations Governing the Conditions of Service of Senior Staff, Exhibits C1 & C.1 (i) at pages 24 and 207 of the Record is to the effect that “a member of staff of the defendant shall not be terminated or dismissed in accordance with these regulations unless Appendix II which is section 17 of the University Law is fully complied with”. From the analysis above, In the circumstance, I find and hold that; the rights, duties and liabilities of both parties in this case are to be determined based on the following documents: the claimant’s letter of Appointment, Exhibit C 2; the Rivers State University Law and the Regulations governing the Conditions of Service of Senior Staff of the Defendant, Exhibits C1 and C.1 (i).
11.3. Is the employment of the claimant with statutory flavour?
There are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour; these are: (i) the employer must be a body set up by the constitution or law and; (ii) the statute or regulations made pursuant to the constitution or principal law must make provision regulating the employment of the staff and the determination of that employment including staff’s discipline; see Kwara State Judicial Service Commission & Ors v. Miss Yetunde Zainab Tolani [2019] LPELR-47539(SC) and Mc, Ido Ekiti & Ors v. Olajide [2011] LPELR-4150(CA) (Pp. 34 paras. A).
11.4. From the facts before the court, there is no doubt that these two ingredients are present in the employment under discourse. First, the Defendant herein is a creation of Rivers State University Law and secondly, the regulations made under this Law, makes provision, regulating the employment of staff of the Defendant including that of the claimant; see section 17 of the University Law. It is worthy of note that both parties in the instant case are in agreement that the employment of the claimant with the defendant is with statutory flavour. Consequently, I find and hold that the claimant’s employment with the defendant is with Statutory Flavour.
12.0. Now to the substance and merit of this case as presented by the parties.
13.0. IS THE DISMISSAL OF THE CLAIMANT FROM THE SERVICES OF THE DEFENDANT UNLAWFUL, NULL AND VOID?
Section 11.2 of Exhibit C.1 (i) on Disciplinary measures is relevant. Paragraph g. of the exhibit is on Dismissal. Paragraph g. 2 states thus:
a member of staff of the University shall be summarily dismissed:
Paragraph g.2 (a) states that:
if he corruptly accepts or obtains or causes any person to accept, or attempts to obtain from any person, for himself or any other person any gift or consideration as an inducement or regard for doing or for failing to do any act in relation to the University’s affairs or business;
It is my considered view therefore, considering the above reproduced regulation that in order to do justice to this issue, three problems need to be settled. These are: (a) identify the alleged misconduct (s) against the claimant, (b) determine that the allegations were satisfactorily proved. And (c) decide whether the defendant complied with the laid down regulations in dismissing the claimant?
13.1.0. What was the alleged misconduct(s) against the claimant?
In paragraph iv of his ‘Statement of Material facts’, the claimant stated that on April 3, 2017 he received a letter wrongly addressed to him, in which one Godwin Ifeyinwa Rita made allegations and implicated one Mr. Kingsley Uzzah and himself concerning money for examination marks. He avers that he was suspended in August 2017 for this allegation and that a committee was set up to investigate the allegation, which absorbed him of it. See paragraph viii of the ‘statement of material facts’ and paragraph 2 of the statement of defence. The claimant continued that he was recalled from the suspension on December 21, 2017; his employment was confirmed on July 10, 2018 and he was promoted to the post of a Professor on September 3, 2018. He continued that however, on September 23, 2019 the defendant invited him to a meeting on same allegation and eventually dismissed in October 2019. See paragraphs x, xii & xiii of the statement of material facts.
13.1.1. In paragraph 3 of the defendant’s pleadings, the defendant averred that the University had set up another facts finding committee (independent of the one that investigated the allegation of Rita against the Claimant) prior to the recall of the Claimant from his suspension, on allegations of sorting, sexual harassment, and other vices amongst lecturers. This 2nd committee was inter alia to check lecturers’ scripts, marking schemes, and results. Some affected persons including the claimant were invited by the committee. The committee found the claimant culpable and he was dismissed. See paragraphs 5 to 12 of the statement of defence.
13.1.2. The letter of invitation in question sent to the claimant and other staff of the defendant is Exhibit C.19 before the Court. It is an internal memo of the defendant and it is dated September 23, 2019; see page 52 of the record. It is titled “Re: Invitation to meet with the Council’s Fact-Finding Committee on allegation of sorting, sexual Harassment and other vices among lecturers”. Paragraphs 1 & 2 of Exhibit C.19 state:
At the 24th regular meeting of the 12th Governing Council held on Thursday, 5th September, 2019 an Interim Report of the Facts-Finding Committee on allegation of sorting, sexual Harassment and other vices amongst lecturers was considered. Council observed some irregularities when comparison was made between the raw score results and the semester results spread sheets for some students in the Department of Banking and Finance in respect of Part-Time Students.
I am in the circumstance, directed to request you to please appear for interaction with the committee on Tuesday 24th September, 2019 at 1: 45 pm in the Council Chamber. ---
13.1.4. Therefore, from the facts presented to the Court by the parties and the content of Exhibit C.19, I find that the allegations against the claimant by the defendant in this case are (i).Godwin, Ifeyinwa Rita’s contention in her petition against the claimant concerning collection of money for examination marks and (ii). The allegations of sorting, sexual Harassment and other vices amongst lecturers.
13.2.0. Were the two allegations satisfactorily established against the claimant?
With respect to the 1st allegation of Rita against the claimant on collection of money for examination marks, the Dean, Faculty of Management Sciences set up an Ad-hoc Committee (the 1st committee) to investigate this allegation together with two other different petitions in April 2017; see Exhibit C.13 at pages 41 to 49 of the record. On October 17, 2017; the Dean, FMS submitted report of this committee to the Vice Chancellor of the defendant exonerating the claimant of the allegation. The report is Exhibit C.14 at page 45 of the record. This report also recommended that the suspension of the claimant be lifted and that all his privileges as staff of the defendant be restored. Therefore, I find and hold that the claimant was clearly absorbed of the 1st allegation against him.
13.2.1. With respect to the 2nd allegation of sorting, sexual Harassment and other vices amongst lecturers, the contents of Exhibits D.1 to D.3 (i) are relevant. It should be bore in mind that this 2nd allegation and investigation was still based on the petition of Godwin, Ifeyinwa Rita, which is Exhibit C. 10 at page 37 of the record. See also paragraph 05 of Exhibit D. 1(i) at page 357 of the record on the “Interim Report of the Fact-Finding Committee on allegation of sorting, sexual Harassment and other vices amongst lecturers” where it is stated that the Committee started by carefully examining the petition submitted by one Rita Ifeyinwa Godwin. I find that the difference between the two committees has to do with their set up and their terms of references. The 1st Committee was an Ad-Hoc one set up at the Faculty Level while this 2nd one was set up by the Governing Council of the defendant. See paragraph 1.0 of Exhibit C.13 at pages 41 to 49 and paragraph 0.1 of Exhibit D. 1 (i) at page 356 of the record.
13.2.2. The term of reference of the 1st committee was to “investigate the staff misconduct, a case of alleged illegal collection of money by Dr. T. A. Ngerebo-a in particular from one Godwin, Ifeyinwa Rita” ---. On the other hand, the terms of reference of the 2nd Committee are: to receive petitions from students and others on areas of extortion, sorting, sexual Harassment and other vices among lecturers, check lecturers’ scripts, marking scheme and results in line with the defendant’s regulations and to submit report within eight weeks.
13.2.3. The 2nd Committee herein referred to as the Committee, requested from the Dean, Faculty of Management and Sciences, the Director, Center for Continuing Education and the Head, Department of Banking and Finance for the following: a. answer scripts for 5 academic sessions i. e. 2011/2012, 2012/2013, 2013/2014, 2014/2015 and 2015/2016 for the undergraduate courses. b. approved results including the spread sheet course for part-time undergraduate programme for the department of Banking and Finance for the five academic sessions. It should be noted that the claimant was the Acting Head of Department of Banking and Finance for the years 2015/2016 and 2016/2017 academic sessions. See Exhibits C.6 and C.9 at pages 31 and 36 for his letters for the acting appointments.
13.2.4. From the records available to the Committee, it is shown in its report that Rita, the petitioner failed eight courses in her years 1 to 3 and that there is no evidence that she retook those courses, sat for exams on the courses and passed. And so, she was rightly denied graduation. See table one at page 359 of the record. However, two other students, who were Rita’s classmate and who woefully failed like her, graduated without evidence that they re-sat for exams on their failed courses and passed. These students are Wudat Nasiru Kabir who failed ten courses from years 1 to 5 and graduated with 2nd Class Lower, and Epelle Daniel Chamberlin who failed four courses and the result of another course of his was not seen, yet he also graduated. See tables 2 & 3 at page 360 of the record. We should not forget that the claimant was the Acting Head of Department of Banking and Finance at the material time when these students graduated in that department.
13.2.5. If one may ask, on what basis were Wudat and Epelle cleared for graduation with those horrible results? I must answer that no legal or any other justifiable reason was given before the Court for presenting those two students for graduation and for graduating them at all and this makes the act of presenting them for graduation worrisome. It is of general knowledge that graduating or awarding degree certificates to unqualified students is trending now in some tertiary institutions in this country and this explains why many of our graduates are no more employable because they do not understand anything as they were not actually qualified.
13.2.6. The ripple effects of this act of the claimant on our youths are: joblessness, increase in diverse crimes, inflation and other evil vices. This is the reason why our Courts should handle this menace decisively whenever it comes before us. In the circumstance, I agree with the defendant’s Committee that the claimant was found wanting of the vice of presenting for graduation in his department and allowing to graduate, some students without merit in year 2015/2016 academic session, even though the consideration the claimant received for this infamous gesture was not proved by the defendant at all in this case. Consequently, I hold that the defendant has proved against the claimant, the misconduct (the act) of presenting for graduation in his department and allowing to graduate, some unqualified students in year 2015/2016 academic session in Rivers State University.
13.3.0. Was the punishment melted on the claimant for this misconduct commensurate with the misconduct?
From the record, the claimant was dismissed for this misconduct, see the 2nd decision of the defendant’s Governing Council in Exhibit D.3 particularly at page 111 and his letter of dismissal, Exhibit C.21 at page 54 of the record. In my considered view, the punishment is a bit harsh. The reason being that the defendant could not satisfactorily prove the alleged consideration of the claimant for allowing the two unqualified students to graduate. In other words, the defendant could not prove that the claimant (corruptly accepted or obtained or caused any person to accept, or attempted to obtain from any person, for himself or any other person any gift or consideration as an inducement or regard for doing (i.e. presenting for graduation from his department the unqualified students) or for failing to do any act in relation to the University’s affairs or business.
13.3.1. The money he was alleged to have received could not be proved at all and that was why he was exonerated by the 1st Ad-Hoc Committee. The payment teller that the defendant presented to this Court as Exhibit D.2 (i) at page 368 of the record, evidencing payment for marks, was not paid into the claimant’s account by either of the two students in question but by a co-lecturer, Mr. Kingsley without indicating or proving the purpose of the payment. Apart from this, there is no other consideration shown or presented by the defendant against the claimant for his infamous act.
13.3.2. Dismissal of an employee is a very serious disciplinary measure in which the dismissed employee loses his terminal benefits including gratuity, regardless of the number of years he has put into the services of his employers. In addition, the employee becomes unemployable, notwithstanding his age when he was dismissed. In the instant case, the claimant joined the service of the defendant in April 2001, he was dismissed in October 2019; a year after he became a Professor. It means the claimant served the defendant for eighteen (18) years. The claimant was Fifty-Four years (54 years) when he was dismissed and as a professor, he was entitled to work with the defendant until he is seventy (70) years old, all things being equal. For the claimant to miss all these, the misconduct must be grievous and it must be strictly proved by the defendant, which the defendant has failed to do in the instant case.
13.3.3. Besides, the claimant was not the only one castigated for this misconduct of presenting unqualified students for graduation in his department. His Dean, in the Faculty of Management Sciences was also reprimanded for his dereliction of duty; see the 3rd decision of the Council in page 111 of the record. Therefore, I find that the punishment of dismissal melted on the claimant for this half proved misconduct of presenting unqualified students for graduation is hash in my firm view and I so hold.
13.4.0. Did the defendant comply with its law and regulations in dismissing the claimant?
By merely proving against the claimant the act of presenting unqualified students for graduation from his department at the material time without proving the consideration(s) the claimant got for doing so as required in section 17 of Rivers State University Law and its Regulations; I find that the defendant did not comply with its law and regulations in dismissing the claimant in this instant case. This is because, the claimant’s employment with the defendant is with statutory flavour, and so, it is mandatory for the defendant to strictly comply with the provision of section 17 of its Law and section 11.2.g.2.a, of its regulations in determining his employment. Dismissing the claimant otherwise is clearly contrary to the terms of his employment and such non-compliance is usually declared illegal, null and void and of no effect. See the case of Jibril v. The Military Administrator of Kwara State & Ors [2006] LPELR-7685(CA) (Pp. 33-34 paras. F). Consequently, I hold that the defendant has failed to comply with the law in dismissing the claimant in this case. I further hold that the claimant’s dismissal is illegal, null and void and of no effect and it is accordingly set aside.
13.5.0. Is the Claimant entitled to re-instatement?
Having set aside his of dismissal, it means that the claimant was never dismissed in the eye of the law. However, notwithstanding the setting aside of the claimant’s dismissal, he is not totally absorbed of his misconduct. In my firm view, his infamous act of presenting unqualified students for graduation at the time in question in this instance should be sanctioned and it is my considered view that justice on this issue will be better served if the recommendation of the 12th Governing Council of the defendant at its meeting held on Thursday, October 10, 2019 against the claimant for a lesser sanction is taken. The said recommendation is in the Extract of the minutes of this meeting, which is Exhibit D.3 (i) at pages 369 to 374 of the record. In this Exhibit, the defendant’s council recommended that “Prof. T. Ngerebo-a should be demoted to the rank of Reader and be due for re-assessment as Prof. after a period of three years.”
13.4.2. By taking this recommendation, the claimant will be adequately disciplined for his infamous action of presenting unqualified students for graduation for whatever reason(s), even though the bad reason was not proved. Also, I am of the view that the ordeals he went through in prosecuting this case would have thought him a great lesson to tread with caution and to amend his ways in his own interest. Consequently, I hold that the claimant shall be re-instated with the defendant but as a Reader with effect from October 10, 2019 when he was illegally dismissed. I further hold that the claimant is entitled to claim from the defendant, all his salaries and allowances as a Reader from October 10, 2019 till date. In addition, I hold that the claimant shall be due for re-assessment as a Professor after a period of three years with effect from October 10, 2019.
14.0. On the whole, I hold and order as follows:
i. I hold that the dismissal of the claimant from the services of the defendant did not comply with the Rivers State University law and its relevant regulations; therefore, the dismissal is illegal and it is accordingly set aside.
ii. I hold that even though the defendant could not prove the claimant’s consideration for presenting two unqualified students in his department for graduation at the material time as required by the University Law and regulations, the act of presenting these unqualified students for graduation in the University for whatever reason is a misconduct that should not be overlooked even though the claimant’s dismissal is set aside in this case.
iii. I hold that, for this misconduct of presenting unqualified students for graduation and the eventual graduation of the students, the claimant shall be re-instated to the demoted position of a Reader with effect from October 10, 2019 when he was illegally dismissed.
iv. I hold that the claimant shall be paid his salaries and allowances as a Reader with effect from October 10, 2019 when he was dismissed from service.
v. I hold that after three years on the demoted position of a Reader effective from October 10, 2019; the claimant will be entitled to be re-assessed for the position of a Professor.
vi. I hold that since the claimant is to be re-instated by the order of the Court in this Judgment, he is not entitled to the alternative prayer for compensation of N1,000,000,000.00 (One Billion Naira) again. Therefore, the claimant’s N1,000,000,000.00 compensation claim is accordingly dismissed.
vii. I hold that all the claimant’s salaries and allowances as a Reader with effect from October 10, 2019 till date are to be paid to him within three months from today.
15.0. Judgment is entered accordingly and since the judgment is fifty-fifty (50/50), I make no order as to cost.
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HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Presiding Judge