IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

5^TH DAY OF JUNE, 2025                                                 SUIT NO. NICN/CA/13/2020

BETWEEN:

DR. EMMANUEL JEROME UDOKANG                             -                           CLAIMANT

AND:

1.     AKWA IBOM STATE UNIVERSITY

2.     THE VICE CHANCELLOR,

AKWA IBOM STATE UNIVERSITY

3.     PROF. ENO IBANGA

4.     PROF. DAVID EKA, DEAN, FACULTY OF ARTS,                            DEFENDANTS

AKWA IBOM STATE UNIVERSITY

5.     THE REGISTRAR, AKWA IBOM STATE UNIVERSITY

6.     THE GOVERNING COUNCIL

OF AKWA IBOM STATE UNIVERSITY         

JUDGMENT.

1.     Vide a general form of complaint dated 16/4/2020 and filed on the 17/4/2020, accompanied by statement of facts, witness statement on oaths, list of witnesses, list of documents to be relied on and photo copies of documents to be tendered as exhibits at the trial. The claimant instituted this suit against the defendants claiming reliefs as follows:-

1.     A declaration that the dismissal of the Claimant from the employment of the 1^st Defendant is unlawful, null and void and of no effect whatsoever.

2.     A declaration that the purported dismissal of the Claimant from the employment of the 1^st Defendant negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

3.     A declaration that the Claimant is still in the service of the 1^st Defendant.

4.     An order setting aside the purported dismissal letter dated the 30^th January, 2020 issued to the Claimant.

5.     An order compelling the Defendants to reinstate and/or restore the Claimant to his post as an Associate Professor in the service of the 1^st Defendant with all his rights and entitlements of the office.

6.     An order compelling the defendants to pay the claimant all the salaries due to him from the period he was suspended until judgment and henceforth.

2.     On 10/10/2023, the claimant testified in proof of his case as CW1. CW1 adopted his two witness statements on oath as his evidence in this case. Twenty-two documents were tendered in evidence through CW1. They were admitted in evidence and marked as exhibits CW1A - CW1Z. On 24/10/2024 CW1 was cross examined by counsel for the defendants. Thereafter, he was discharged in the absence of re-examination.

3.     One Emeobong Emeni, testifies as CW1 in proof of the defence of the defendants. DW1 after identifying his witness statement on oath adopted same as his evidence. Documents were tendered in evidence through DW1. They were admitted in evidence and marked as exhibits DWA – DWS. DW1 was cross examined by counsel for the claimant.

4.     Another witness of the defendant was one Ime Susan Udofia, Director Legal services of the defendants. One document was tendered in evidence through this witness it was admitted as exhibit DW2A. DW2 was cross examined by counsel for the claimant at the end she was discharged.

THE CASE OF THE CLAIMANT:

5.     Vide a letter dated 21/3/2016, the claimant joined the services of the 1^st defendant on probation as a senior lecturer in the Department of Philosophy. The appointment of the claimant was confirmed on the 8/4/2018. Apart from the regular lectures, the claimant was appointed into several administrative positions in the service of the 1^st defendant. The claimant was promoted to the rank of Associate Professor by the council of the university.

6.     According to the claimant his travails started when a letter dated 18/2/19 titled ‘an appeal for the re-computation of my result from year 2 to 4 to exclude courses which I should not have offered as a direct entry student to enable me graduate in 2017/2018 session’’ written by one Glory M. Akpan, a student in the Department of Philosophy was forwarded to him for comment. Following his response, the said Glory Akpan, summoned courage and wrote petition against the claimant titled ‘’petition of victimization on grounds of refusal to concede to sexual advancement made on my person, by Dr. Emmanuel Jerome Udokang of the Department of Philosophy, Obio Akpa Campus’’.

7.     The claimant further stated unknown to him a petition dated 23/4/2019, was written against him by an anonymous and non-existent Thompson Samson, and instead serving him with the petition to reply as usual, he was rather issued with a query dated 19/7/2019 which contain excerpt of the petition. The claimant replied the said query. Thereafter, the claimant was served with another query dated 28/8/2019. The claimant replied on the same date, six days after his reply to this query, the claimant received letter dated 3/9/2019, suspending him from work. Thereafter, the claimant was invited via a text message to appear before an administrative panel of inquiry which had amongst others, Prof. Idongessit Isaac, Prof. Anietie Akpan, Prof. Godwin Umoetteb and Barr. Iniobong Ikpatt as members. At the hearing, the claimant was subjected to verbal abuse by the panel and was not given opportunity to state his case.  The report of the investigation was not made known to him. The claimant was again directed via another text message to appear before the council disciplinary panel consisting among others, Dr. Mrs Gloria Ukpong, Prof. Idongesit Isaac, Prof. Anietie Akpan, Prof. Eno Otong, Prof. Umoren Umoren as members.

8.     The panel substantially made up of members of the previous panel. The committee did not act differently, as the claimant was subjected to further abuse and denial of opportunity to state his case. The members of the panel who were in the administrative panel sat on appeal over their decision. The claimant was served letter of dismissal from service on 30/1/2020.

THE CASE OF THE DEFENDANT:

9.     The claimant was appointed as a lecturer in the Department of Philosophy. In the course of his employment, he was appointed head of Department. He was also promoted to the rank of Associate Professor of Philosophy. During the three years the claimant served the 1^st defendant several petitions were received against the claimant from students of the Department where claimant was a lecturer. The complaints against the claimants include sexual harassment, collection of school fees from students, and embezzlement of the fees. Other complaints include dismissal and termination of employment in previous places of work, sale of unauthorised text books, compelling students to pay departmental dues of N700 as against the senate approved N500 and irregularities in examination computation.

10.                        The claimant was queried and he replied. Thereafter, he was suspended. A panel of investigation was set up by the Vice Chancellor. The claimant honoured the invitation. The persons who made allegations were also invited. The case of the claimant was also referred to the staff disciplinary committee which is an arm of the governing council of the university. The governing council then sat and reviewed the two reports and made an assessment of the entire case and reports against the claimant.

11.                        The defendant maintained that the claimant was offered ample fair hearing opportunities in line with the conditions of service and in line with general provisions and requirements of fair hearing. The allegations against him were made known to him in writing. He was given opportunity to respond in writing and appeared before two different panels of inquiry to state his case.  He was given opportunity to confront his accusers. The claimant was dismissed based on overwhelming evidence of gross misconduct against him. The allegation that the then vice chancellor hated him is false.

REPLY TO STATEMENT OF DEFENCE:

12.                        The claimant stated that he was appointed on 21/3/2016, promoted vide a letter dated 28/9/2018, while his confirmation of appointment was on 8/4/2018 vide a letter dated 17/1/2019, nearly a period of almost three years without any issue or query. All the petitions against him were product of his refusal to accede to the demand of the 3^rd defendant who was the boss alter ego of the 1^st defendant.

13.                        The claimant maintained that he was not dismissed from any of the universities listed by the defendants in paragraphs 7, 8, 9 and 10 of the defendants’ statement of defence. He also stated that there was no provisions in the conditions of service of 1^st defendant mandating the defendants to dismiss on suppression of record as there was no provision in the condition of service to that effect.

14.                        According to the claimant paragraphs 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the statement of defence were crafted from doctored and undated report of the panel of investigation and the purported internal memo titled ‘report of staff disciplinary committee’ dated the 26/11/2019, which memo is from the chairman, staff disciplinary committee to the registrar/secretary to council. It is further stated by the claimant that though he appeared before both panels the content of the attached documents, mostly the questions and answers of the persons who appeared before the committee does not represent the true questions and answers before the panels. The contents were doctored to specifically suit their desired defence.

THE SUBMISSION OF THE DEFENDANTS:

15.                        Okemini Udim, Esq; counsel for the defendants adopted the final written address of the defendants as his argument in this case, wherein a single issue was formulated for determination to wit:-

Whether the Claimant was given fair hearing prior to his dismissal from the service of Akwa Ibom State University and whether his dismissal was done in compliance with the provisions of the Conditions of Service applicable to members of staff of the University?

16.                        In arguing the sole issue counsel submitted that, there is ample evidence to show that the Claimant was afforded fair hearing by the Defendants before he was dismissed from the employment of the University. His allegation therefore of denial of fair hearing is not supported by evidence.

17.                        According to counsel some petitions were received against the Claimant from the students he taught in the Department of Philosophy. Some of the petitions have been tendered in this honourable court and admitted in evidence. One of the petitions is a petition from a student with the title ‘’Petition of Victimization on Grounds of Refusal to Concede to Sexual Advancements made on My Person by Dr. Emmanuel Jerome Udokang of the Department of Philosophy, Obio Akpa Campus.’’ In the petition, a student – Ms. Glory Monday Akpan – alleged that the Claimant repeatedly asked her for sex and that when she refuses, the Claimant threatened that the student will not graduate and go for NYSC.

18.                        Exhibit DWC is another petition, still against the Claimant. The petition is titled ‘’An Appeal for Assistance.’’ The petition was written by Ms. Ikara, Susan Hilary. She alleged that she went to the Claimant as HOD of her department to report to him that she was unable to pay the school fees on time and that at the time the school fees were given to her, the portal had closed. The claimant then offered to assist her in the payment (despite the closing of the portal). The Claimant collected the sum of N59,000.00 from her but failed to pay the fees and also failed to make a refund of the money to the student despite repeated demands. The Claimant not being the Bursar had no right to receive school fees from students and he failed to make refund to the student.

19.                        In another breath, the university received a petition from Aghomi Godstime Onome dated 28^th August, 2019, captioned ‘’Letter of Appeal.’’ (Pleaded at paragraph 11 sub 3 of the Deposition of DW1 and tendered along with the bundle of exhibits on 27/11/2024). In the said petition, the petitioner alleged that he was unable to raise money and pay his school fees within the time allowed by the University; that at the time he was able to raise funds, the portal had been closed. He then approached the claimant who was then the Head of Department and sought to know what to do in the circumstance; that the Claimant asked him to pay the money to him with a promise that as HOD he will find his way around the situation despite the closing of the portal. The sum of N147,000.00 was then handed over to the claimant. The Claimant did not pay the fees for the student as he promised and did not also refund the money to the student, despite repeated demands, hence the student’s petition to the authorities of the University.

20.                        The University also received information that the Claimant had been dismissed in at least one university where he previously worked while his employment was terminated in three other universities, where he worked. The university also received petition from students of unauthorised sale of books by the Claimant (despite the practice being prohibited by Management). The University also received petitions from students that, the Claimant had compelled students to pay departmental dues, over and above the approved threshold. There was also a report of observed irregularities in examinations that were under the custody of the Claimant.

21.                        Counsel submitted that based on the above complaints and petitions, the University then afforded the Claimant an opportunity to be heard. He was first issued with two queries from the Office of the Registrar. The two queries have been admitted and marked as Exhibit DWL and Exhibit DWS. In the queries, the allegations made against the Claimant were clearly stated and the Claimant was given 48 hours each to respond to the queries.

22.                        The Claimant responded accordingly to the queries within the time given to him. See his letter titled ‘’Re: Query’’ dated 28^th August, 2019 and addressed to the Registrar and attached to the Claimant’s Complaint of 16/4/2020. In this reply, the claimant took time out to respond to all the allegations made against him in the Registrar’s queries. He denied extorting money from students; denied selling books; denied collecting school fees from students and; denied ever supressing facts of previous employment and added that he never worked in the Universities listed in the query. This was the Claimant taking full benefit of the fair hearing opportunity given to him at this stage. The Claimant maintained his denial until he was confronted with letters from the said universities and at this point, he could not continue with the denials.

23.                        The University was not satisfied with the explanations of the claimant in response to the queries served on him. Consequently, in exercise of the powers vested in him by the Conditions of Service, the Vice Chancellor constituted a Panel of Investigation to investigate the allegations made against the Claimant. The Panel invited the Claimant and his accusers. The Panel confronted him with the allegations against him. The persons invited were allowed to interrogate him and he in turn was allowed to interrogate the persons. The Panel Members also interrogated him. The Panel then submitted its report to the Vice Chancellor and made necessary recommendations for action.

24.                        The Report of the Panel was admitted in this court and marked Exhibit DWA. According to counsel, the said Report carries in great detail, the proceedings of the Panel with sufficient evidence of fair hearing afforded the Claimant. The Panel found the Claimant culpable on most of the allegations. It then recommended that the Claimant’s conduct is in contravention of the Conditions of Service and that the Claimant should be dismissed from service. It is submitted that his (appearance at the Panel of Investigation) was another opportunity for fair hearing given to the Claimant to which the Claimant took sufficient advantage of by actively participating at the proceedings and asking his accusers questions as shown in the Report and also responding to questions posed to him.

25.                        Upon the submission of the Report to the Vice Chancellor, the Vice Chancellor then forwarded it to the Staff Disciplinary Committee for further investigation. The Staff Disciplinary Committee is a standing Committee of the Governing. The Committee invited the Claimant along with his accusers and afforded them the opportunity to be heard. The Claimant expressed himself freely and, in the end, the Committee submitted its Report. The said Report was admitted and marked Exhibit DW2A. The Committee noted in the Report inter alia that:

‘’Dr. Emmanuel Udokang having been dismissed from service at Redeemer’s University was ab initio not employable under the laws of the land, thus, his employment and subsequent promotion to the rank of Associate Professor was a nullity. The University should dismiss Dr. Udokang from service and withdraw the rank of Associate Professor forthwith.’’

26.                        Still in the report, the Claimant was found culpable of collection of school fees from students on the guise that he will pay the school fees for them after the portal had closed. He was also found culpable on other allegations. He was however absolved of the allegation on sexual harassment.

27.                        On being cross-examined by counsel for the Defendants on 24/10/2024, the Claimant as CW1 admitted that:

Ø Allegations were indeed made against him by students;

Ø That he was issued with queries;

Ø That he submitted his replies to the queries within the time stipulated;

Ø That a Panel of Investigation was set up to investigate the allegations made against him and that he appeared before the Panel upon their invitation;

Ø That he was asked questions and made to face his accusers at the Panel;

Ø That he also appeared before the Staff Disciplinary Committee on the same allegations;

Ø That the above took place before he was dismissed from the service of the University.

28.                        It is submission of counsel that from the totality of the above, together with the documents tendered and the admissions of the Claimant on oath, there is sufficient evidence to show that the Claimant was indeed afforded fair hearing before his dismissal from the teaching service of Akwa Ibom State University. Counsel prays the court to so hold.

29.                        Counsel submitted that a Panel of Enquiry or Investigation is a fact-finding panel. Its primary mission is to investigate allegations of infractions made against a staff of an establishment. It is unlike the court of law. It does not embark on trial and conviction. Its mission is rather to investigate and uncover. Unlike the court, the Panel of Enquiry is not expected to embark on proof beyond reasonable doubt before a recommendation can be made. Once there is reasonable evidence to show that the Panel carried out its mandate and afforded the staff ample opportunity to be fairly heard, the Panel would have been said to have achieved its mandate. On this counsel refers to the case of: Oluwatuyi v. Civil Service Commission, Ondo State (2021) All FWLR (Pt. 1097) 253 where the Court of Appeal held that: ‘’It is a well-established principle of law that, an Investigating Panel of Enquiry not being a Court of trial, it is sufficient if it gives to any person who feature in the inquiry, the opportunity of making some representations, orally or in writing, before it.’’

30.                        Counsel argued that in this case, the two administrative bodies above went beyond the surface and carried out thorough investigation of the allegations that were made against the Claimant. He was invited, his accusers were also invited. He was given the opportunity of making his representations at the Panels. Counsel posited that the Panel of Investigation (as seen in Exhibit DWA) and the Staff Disciplinary Committee (as seen in Exhibit DW2A, pages 6 – 18) had duly satisfied what the law required of them as administrative bodies or panels of enquiry.

31.                        The Claimant was dismissed for the allegations for which he was queried. In the query of 28^th August, 2019 (Exhibit DWL), the Claimant was queried inter alia for, unauthorised sale of books, extortion of money from students, and suppression of record of previous appointments where he was either dismissed or terminated. The investigation panels confined themselves to these allegations. Questions were asked and interrogatories were made. In the end, the allegations were found to have indeed taken place. The Claimant was then dismissed based on these established facts and the reasons for the dismissal as shown in the letter of dismissal (Exhibit DWQ) tallies with the query. The Defendants thus complied with another requirement of the law and the Claimant cannot rightly say that he was denied fair hearing.

32.                        The other leg of the question is: Whether the laid down procedure was followed by the Defendants in the dismissal of the Claimant from the employ of the University? To answer this question, resort must be made principally to Exhibit DWH, the Conditions of Service which represents the social contract and pact between the University and its staff members.

33.                        Counsel asked, ‘what then is the procedure as laid down in this document? Counsel submitted that, this ought to have been pleaded by the Claimant but same not been pleaded by him. He thus, has not shown by his pleading, what the proper procedure is, so as to enable the court compare and to see the breach in the procedure that was used in his case. Counsel submitted that; an un-pleaded fact cannot give rise to a cause of action. To support his contention counsel relied on the case of Nigerian Romanian Wood Industries Limited v Akingbulugbe (2011) 11 NWLR (Pt.1257) 131, where the Court of Appeal per Iyizoba, JCA, held thus:

‘’Generally, a plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts:

a.      That he is an employee of the defendant

b.     The terms and conditions of his employment

c.      The way and manner and by whom he can be removed. See- Ujam v. I.M.T. (2007) 2 NWLR (Pt.1019) 470 at 489; Kwara State Civil Service Commission v. Abiodun (2009) LPELR-8900; (2009) 4 FWLR (Pt. 495) 8809,

34.                        According to counsel the Claimant in this case, has not pleaded in any of the paragraphs of his Complaint ‘’the way and manner (the proper procedure) by which he can be removed’’ from the employ of the 1^st Claimant. He has thus failed in his duty as required of him by law in a suit where the claimant is alleging wrongful termination of employment. This lapse is fundamental and the court of law can rightly arrive at the conclusion that the Claimant has failed to prove his case and thus dismissed his claims.

35.                        In the event that His Lordship is of the view that the Claimant’s lapse should be overlooked, counsel refers to the procedure in the Conditions of Service (Exhibit DWH) for the discipline of a staff member of Akwa Ibom State University. Chapter 3 of Exhibit DWH which provides for “Discipline.’’ In Article F at page 30 of the exhibit, outlined the procedure to be followed.

36.                        Counsel refers to exhibit DWL, wherein the Registrar of the University issued a query to the Claimant and stated the complaints against him and gave him specific time for the submission of a reply. Counsel also refers to exhibit DWS, another query. The Claimant himself tendered the queries in evidence as Exhibit CW1S and Exhibit CW1R. He has thus confirmed and admitted that he was indeed queried. The Claimant delivered his reply within the 24 hours given to him. Counsel submitted that the above requirement of the Conditions of Service was duly satisfied. The allegations against the Claimant were in the category of serious and gross misconducts (see pages 24 – 27 of the Conditions of Service for definition of category of misconducts). The allegations were grave and the explanations given in the Claimant’s reply titled “Re: Query’’ and dated August 28, 2019 did not give satisfactory explanations. The said reply to query was tendered and marked exhibit CW1S. The University then took a decision to call for an investigation into the grave allegations so as to also give the Claimant an opportunity to defend himself. Exhibit DWA shows that an Administrative Panel of Inquiry was constituted to investigate the Claimant. The exhibit (report of the panel) carries the names of the Chairman, Members and Secretary of the Panel, the terms of reference and the duration of investigation (two weeks) had all been stated. The Panel invited the Claimant and also invited his accusers (as can also be seen from the proceedings of the Panel). The Claimant was able to confront his accusers and was also able to make his defence. The Panel made its findings and also made recommendations to the Vice Chancellor for further action. The Claimant himself has accepted in his pleadings and at cross-examination that he was invited to the Panel and that he was heard.

37.                        Counsel submitted that the above action of the University satisfies the requirement of the conditions of service.

38.                        By the provisions of the Conditions of Service, where the offence involves a major or gross misconduct, the employee shall be referred to the Staff Disciplinary Committee, after being served with a letter of suspension without recourse to any warning. Counsel posited that the Claimant was invited to the Staff Disciplinary Committee and afforded opportunity to defend himself. See Exhibit DW2A ‘’Report of Staff Disciplinary Committee’’ dated 26^th November, 2019. This exhibit was tendered from proper custody by the person who served as Secretary of the Committee. The report contains the investigation of several other staff but pages 6 – 18 relate to the Claimant. The report contains details of fair hearing opportunities duly given to the Claimant at the Staff Disciplinary Committee. The Claimant was then found culpable of the allegations and was recommended to the Governing Council for dismissal of his employment. This according to counsel shows that the other leg of the procedure/requirement for discipline as contained in the Conditions of Service was duly satisfied. The Claimant himself admitted this at cross-examination and in his pleadings.

39.                        It is submission of counsel that there is no other procedure in the Conditions of Service for the discipline of staff members of Akwa Ibom State University other than the above three itemised procedures. These procedures were duly followed by the Defendants. The dismissal is therefore not unlawful as the Claimant wants the court to believe. The University has the power to discipline erring staff provided it is done in fidelity with the applicable procedure. In this case the applicable procedure was dully followed. He was allowed ample opportunities to be heard. His claim of denial of fair hearing is thus untrue and not supported by available evidence. To support this contention counsel relied on the case of Imonikhe v. Unity Bank Plc (2011) 12 NWLR (Pt. 1262) 624; (2011) LPELR-1503 (SC) where the Supreme Court, per Rhodes-Vivour, JSC held thus:

‘’Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers before a decision is taken satisfies the requirement of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.’’

40.                        Counsel also relied on the case of Mrs. Janet Udo v. Civil Service Commission, Akwa Ibom State (2013) LPELR – 2184; (2014) All FWLR (Pt. 716) 582.

41.                        According to counsel in the case at hand, the Claimant was afforded fair hearing in accordance with the procedure provided in the conditions of service.

42.                        Counsel submitted that, the question of whether the procedure or requirement of the conditions of service had been followed in the dismissal of the claimant, has been answered in the affirmative. The question of whether the Claimant was given fair hearing before his dismissal has also been answered in the affirmative. Where these conditions are complied with, the court of law will not force an employer to retain the services of a staff whose conducts had become reprehensible and even scandalous to the employer. This being the case, counsel pray the court to dismiss this suit in its entirety and to affirm the dismissal of the clamant from the service of Akwa Ibom State University.

43.                        Counsel also submitted that where the Claimant has failed to prove his case to be entitled to the reliefs sought by him, the option available to the Honourable Court is to dismiss the suit in its entirety. In support of this submission counsel relied on the decisions in the cases of Makaan v. Hangem (2018) LPELR-44401; Omerede v. Eleazu (1996) LPELR-2637(SC), (1996) 6 NWLR (Pt. 452) 1; Yusuf v. Adegoke (2007) 6 S.C. (Pt. 1) 126; Agbana v. Owa (2004) 18 NSCQR 774." Per OTISI, JCA (P. 44, paras. D-F); Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81, Gbajor v. Ogunburegni (1961) ANLR 853; Okeayi v. Aguebor (1970) 1 NLR 1; Madam Adeleke v. Aserifa (1986) 3 NWLR (pt.30) 575; His Highness Oba L.B. Omorinbola II v. The Military Governor of Ondo State & 3 Ors. (1998) 12 SCNJ 192 and Chief Odi & 5 Ors. v. Chief Iyala & Ors. v. Chief Offor & Ors. (2004) 4 SCNJ 35; Gold v. Osaseren (1970) 1 All NLR 125 SC. Counsel urged the court to dismiss the case of the claimant.

THE SUBMISSION OF THE CLAIMANT:

44.                        Joseph Oloko, Esq; counsel for the claimant adopted the claimant’s final written address as his argument. In the written address a single issue was formulated for determination, to wit:-

45.                        Whether the composition of the panels (Administrative Panel of Inquiry and the Staff Disciplinary Committee) with overlap of membership created a likelihood of bias against the claimant. In arguing the sole issue counsel submitted that the claimant’s employment under the 1^st defendant was one with statutory flavour and guided by the 1^st defendant’s conditions of service exhibit CWIV. Chapter 3 of the condition of service provides for the discipline of staff, particularly, paragraphs 3.1 F (ii) provides for the setting up of Administrative Panel of Inquiry with names and designations of its membership clearly indicated.

46.                        The said panel was duly set up with membership of Prof Idongesit O. Issac, Prof (Mrs) Eno J. Ottong, Prof Anietie B. Akpan, Prof Godwin T. Umoette and Barr Ememobong Ikpatt. The claimant was thoroughly abused by the panel members instead of being questioned and was not allowed to be present when his accusers were being questioned even though the report says otherwise. The claimant took consolation that at the Disciplinary Committee, he will be meeting with different set of persons in the Committee who will listen to his side of the case. The undated report tendered exhibit DWA only became known to the claimant when it was attached to defendants amended statement of defence.

47.                        According to counsel at the conclusion of the Administrative Panel of Inquiry’s purported investigation, the claimant was invited to appear before a staff disciplinary committee which membership, to the Claimant’s surprise, comprises of all the membership of the administrative panel except the secretary.

48.                        Counsel submitted that the fulcrum of the claimant’s complaint can be found at paragraphs 24,25,26,27,28,39,30,31,32 and 33 of the statement of facts and the statement on oath of CW1. In an effort to debunk the claimant’s complaint and to mislead the honourable court, the defendants through DW2 tendered exhibit DW2A, which is the purported report of the Staff Disciplinary Committee. The report falls short of a committee’s report, as provided by paragraph 3 F(ii) of exhibit CW1V. It does not contain the names of the committee members neither is the report signed by all the members who took part in the committee unlike the report of the Administrative Panel of Inquiry.

49.                        The real essence of not listing the names is to deny this honourable court the opportunity of comparing the names of both panel members. Counsel refers to section 167 (d) of the Evidence Act 2011 provides:-

‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural event, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that

(a)…………………………………………………..

(b)………………………………………………….

(c)…………………………………………………..

(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(e) ………………………………………………………

50.                        Counsel submitted that the suppression of the names of the committee members in the staff disciplinary report (Exhibit DW2A) was done deliberately to deny the court the opportunity of comparing the names with that of the members of the Administrative Panel of Inquiry, evidence is therefore suppressed and this honourable Court is herein called upon to presume this fact, counsel rely on the case of ISAH ONUH & ORS V IBRAHIM IDU & ORS (2002) FWLR (Pt 94) 66 where the court of Appeal held that this presumption arises against a party to a proceeding who withheld a particular available material evidence.

51.                        The court in TSUMBA V. STATE (2021) LPELR 55649 (CA) relying on the Supreme court decision in MUSA V YERIMA (1997) NWLR (Pt.511) 27 laid down the conditions which must be satisfied before presumptions under section 167(d) can operate to wit:

(a) such evidence must exist.

(b)                  that it could be produced.

(c) that it has not been produced.

(d)that it has been withheld by the person who could produce it.

See TEWOGBADE V. AKANDE (1968) NMLR 404.

52.                        Counsel submitted that DW2 was the secretary of the Staff Disciplinary Committee and was the person who produced the report. Counsel submitted that the evidence exist as the committee was set up by the 1^st defendant, DW2 at all material time can produce the names of the committee members, the names are in existence and in the custody of the 1^st defendant. These facts satisfy the prescribed conditions, counsel urged the court to so hold. See also FBN PLC & ANOR V. ADEOSUN BUSINESS INVESTMENTS LTD & ORS (2020) LPELR 51203 (CA).

53.                        Counsel also submitted that in his effort to further supress this material fact, DW2 who was the secretary of the Staff Disciplinary Committee under cross examination claimed he could remember only two members of the committee which he named as Prof Umoette and Prof Nyoyoko. Counsel submitted that Prof Umoette also served on the Administrative Panel of Inquiry, please see exhibit DWA. It is submission of counsel that members of the Administrative Panel of Inquiry who also sat on the Staff Disciplinary Committee sat on appeal against their own decision.

54.                        It is submitted that, the essence of an appellate panel in the name of the Staff Disciplinary Committee was to review the report of the lower panel to exclude any likelihood of bias and this cannot be possible if both panels have the same persons as members even if it is one person. Counsel submitted that the claimant was not granted fair hearing and that the conditions of service (exhibit CW1V) which regulates the disciplinary process was not followed. According to counsel the implication of not following laid down procedure in respect of disciplining an employee whose employment has statutory flavour as stated by the Court of Appeal decision in OLOWOOKERE (2012) LPELR – 7935 (CA) wherein the court stated;

‘… the respondent’s right to fair hearing and their decision purporting to terminate the respondent’s appointment as lecturer was rightly nullified and set aside by the trial Court. Here, one is not concerned with the gravity of the respondent’s misconduct complained of or the evidence available in the respect. It is the failure by the appellants to fully comply with the statutory procedure for terminating the respondent’s appointment which has statutory backing or flavour that is the real issue here. No matter how black or grave the allegations against an employee whose employment is statutorily spiced, the employer must adhere to full compliance with the procedure provided by the statute’.

55.                        It is submitted that the empanelling of the same persons on both panels also raises a likelihood of bias and negates the principle of nemo judex in causa sua. The claimant had contended in paragraphs 25 and 27 of both the statement of facts and his statement on oath that both sessions of the panels was an abusive session and that he was not given the opportunity to state his side of his case in defence of himself. At the Staff Disciplinary Committee, which is the appellate committee, the views of the same members who now transmute to empanel the appellate committee cannot be different having established a case against the claimant at the lower panel. See the case of CRUTECH v. AGBOR (2020) LPELR – 50222 (CA).

56.                        It is submitted that the principle of fair hearing which the claimant was denied is at the fabric of this action. In OMBUGADU & ANOR v. SULE & ORS (2024) LPELR – 61642 (SC), the Supreme Court per Kekere-Ekun, JSC (as she then was,  now CJN), noted that;

‘the principle of fair hearing enshrined in our constitution demands that every party to a cause or matter has a right to be heard before a decision is given affecting him or his interest. He is not only entitled to a hearing; he is entitled to fair hearing.’

57.                        In Ntewo v. University of Calabar Teaching Hospital & Anor (2013) LPELR – 20332 (CA), the court per Muhammed Lawal Garba (JCA as he then was) stated that;

‘the principle of fair hearing as envisage in the right to fair hearing guaranteed by section 36(1) of the 1999 constitution as amended applies in the determination of a party’s civil rights and/or obligations by a court or tribunal established by law as provided by the section:

‘36(1) – in the determination of his civil rights and obligation including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court of other tribunal established by law and constituted in such a manner as to secure its independence and impartiality…. However, in cases of Administrative Panel of Inquiry set up for the primary purpose of fact finding in respect of matter that may require investigations as part of a disciplinary procedure, all that is required is that they be guided by the principle of natural justice.

58.                        Counsel submitted that the overlap of membership of both panels create a denial of fair-hearing to the claimant. That the members of the Administrative Panel of Inquiry who had already established a case by their purported report against the claimant and thereafter sat on the Staff Disciplinary Committee as the arbiters in the appellate Committee cannot be said to be fair in their judgement in compliance to the provision of 36(1) of the 1999 Constitution as amended and/or the principle of natural justice.

59.                        It is submitted that the effect of denial of fair hearing is that the entire proceedings will be rendered a nullity. It does not matter whether the panel is administrative or a quasi-criminal panel or body. See the case of AKANDE v. IBB UNIVERSITY, LAPA & ANOR (2020), LPELR- 52552 (CA); ARIORI &  v MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 @ 23-24 per Obaseki (JSC), CHIEF J. L. E. DUKE v GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (Pt 1356) 347 @ 366 B-C per Galadima (JSC).

DEFENDANTS’ REPLY TO THE CLAIMANT’S FINAL WRITTEN ADDRESS.

60.                        In reply to argument of counsel for the claimant at page 6, paragraph 3.5 of the Final Written Address, counsel for the defendants submitted that with Chapter 3 paragraph F (ii) which provides thus: ‘’Investigation shall be instituted in a case of serious, and or gross misconduct and the member of staff informed in writing to avail himself of the opportunity given for proper self-explanation. Investigation shall normally be done by an Administrative Panel of Inquiry with names and designations of membership clearly indicated and terms of reference and duration of the investigations spelt out.’’ (page 31 of the Conditions of Service). For the purpose of discipline of erring staff members, there is two bodies that have been established by the Conditions of Service, namely, the Administrative Panel of Inquiry and, Staff Disciplinary Committee (see pages 30 – 31 of the Conditions of Service). The above provision on composition specifically refers to the Administrative Panel of Inquiry. There is no similar provision for the Staff Disciplinary Committee in any section of the Conditions of Service. There being no such similar provision, counsel’s allegation of none compliance with the Conditions of Service does not have the support of the self-same Conditions of Service.

61.                        According to counsel page 30 of the same Conditions of Service provides for the forwarding of the case to the Staff Disciplinary Committee but the provision is silent on the membership composition, terms of reference and duration of hearing and determination of cases (See page 30 paragraph F (E) of the Conditions of Service. It is submitted that what has not been specifically mentioned by the law or Rules or conditions of service cannot be allowed to be imported by a party. Such importation will be without foundation or support.

62.                        Counsel further stated that the Staff Disciplinary Committee of the University is a standing Committee of the Senate and Governing Council. See S. 8 of the Akwa Ibom State University Law, 2022 which provides thus: ‘’There shall be a joint committee of the council and the Senate to be known as the Staff Disciplinary Committee for the discipline of academic and professional staff.’’ This section does not provide for the form to be followed in the writing of the report of the committee. For that reason, the form applicable in the usual course of work in the University can be followed. Counsel also refers to Section 20 of the Akwa-Ibom State University, Law which provides for the removal and discipline of academic administrative and technical staff members of the University. Again, no format for its report has been provided. There is also no mention of terms of reference, membership composition and the timeframe for submission of report. The Conditions of Service is a contract document and the role of the court is to interpret the terms of the contract freely entered into by parties. The court does not add or subtract. On this counsel refers the court to the case of:

63.                        Counsel has argued that the signing of the Report of the Staff Disciplinary Committee by the Chairman and Secretary alone, renders the Report unacceptable in law. Counsel differs and argued that the report of a committee that has been signed by the Chairman and the Secretary is a competent and valid report. These are key officers of the Committee. The signing of official documents by two persons in the university system is a practice acceptable. The report being the product of an official action, there is a presumption of regularity in favour of all acts of official bodies. See S. … of the Evidence Act. The signing of the report by the Chairman and Secretary does alone not render the report irregular or invalid.  This is because, the Staff Disciplinary Committee is a standing committee of the Senate.

64.                        According to counsel the SDC is a standing committee of the Council whose membership is drawn from …. Unlike the Investigation Panel that is constituted to investigate a particular staff at a time, the SDC is permanent as to investigate every member of staff that has been referred from the AIP. SDP sits in council to hear all such staff and make verdicts one by one. At the end of its assignment, its Chairman and Secretary can sign their report for and on behalf of the SDC. We refer to case of …. And submit that (unless there is a specific provision requirement than the otherwise) the signature of the Chairman and Secretary will be sufficient for the submission of the report of an administrative panel. There is a presumption of regularity in favour of such public document coupled with the certification done. Counsel urged the court to so hold and to dismiss the suit of the Claimant.

COURT’S DECISION:

65.                        I have carefully considered the general form of complaint commencing this suit and its accompanying processes, the amended statement of defence, the reply to the amended statement of defence, the evidence adduced by the parties at the trial as well as the written and oral submissions of counsel for the parties.

66.                        The facts that led to filing if this suit are straight forward and not complicated. Vide a letter dated 21/3/2016, the claimant joined the services of the 1^st defendant on probation as a senior lecturer in the Department of Philosophy. The appointment of the claimant was confirmed on the 8/4/2018. Apart from the regular lectures, the claimant was appointed into several administrative positions in the service of the 1^st defendant. The claimant was promoted to the rank of Associate Professor by the council of the university. See exhibits CW1A, CW1B, CW1C, CW1D, CW1E, CW1F, CW1F, CW1G, CW1J and CW1K.

67.                        During the period the claimant served the 1^st defendant several complaints against the claimant were received. Consequently, queries were issued and served on the defendant. See exhibits DWL, DWK, CW1S, CW1R and DWR, (the queries and replies by the claimant). Upon receipt of replies, the claimant was suspended on the directive of the 3^rd defendant, the Vice chancellor of the 1^st defendant. See exhibit CW1T (suspension letter). Thereafter the 3^rd defendant Vice-Chancellor of the 1^st defendant set up a panel of investigation, the claimant appeared to defend himself. The report of the Panel was tendered and admitted in evidence as exhibit DWA. Exhibit DWA was sent to the Staff disciplinary Committee based on which the claimant was again invited via a text message to appear before the Committee. The report of the Committee was tendered and admitted as exhibit DW2A.

68.                        The reports of the Panel and the Committee, exhibits DWA and DW2A, were referred to the 6^th defendant, the governing Council of the university, for consideration. After consideration and review of the reports, the 6^th defendant accepted the recommendations of the Panel and the Committee, respectively. The 6^th defendant directed dismissal of the claimant from the service of the University. The claimant brought this action before this court to challenge his dismissal on the ground of violation of his right to fair hearing.

69.                        The gravamen of the complaint of the claimant is that he was queried based on petitions written against him. He replied in answer to the queries. A panel of investigation was set up by the 3^rd defendant, to investigate him, he was invited via a text message to appear before the panel of investigation. He appeared before the panel of investigation, where he was abused by the panel members. At the panel sitting he was not allowed to ask questions.  He submitted certain documents. He saw the report of the panel with his lawyer as it was attached to the defence. He is not aware students were invited. He did not see the students at the panel. But, saw them at ante room.

70.                        After the investigation panel, he was invited to appear again before the staff disciplinary committee which he honoured the invitation and appeared. That some members of the Panel of Investigation were made members of the staff disciplinary committee; The committee recommended his dismissal to the governing council, which accepted the recommendation and dismissed him. The dismissal was in violation of rules and regulations.

71.                        DW2 under cross examination stated she served as secretary of the Staff Disciplinary Committee. The claimant appeared before the committee. At the end report of the committee was sent to the governing council. When asked about the composition of the members of the committee she stated there were 13 members including herself. But she can only remember names of two members Late Prof. Umoittee and Prof. Nyoyoka.

72.                        The claimant quarrel with his dismissal is predicated on the fact that most of the members that sat in the investigation committee also sat in the staff disciplinary committee, this according to claimant is a violation of his fair hearing, as they serve on appeal in their own decision.

73.                        For counsel for the defendants, there is sufficient evidence to show that the claimant was indeed afforded fair hearing before his dismissal from the teaching service of the 1^st defendant.  As the panel of inquiry or investigation is a fact-finding panel, its primary mission is to investigate allegations of infractions made against a staff of an establishment. It is unlike the court of law. It does not embark on trial and conviction. Its mission is rather to investigate and uncover.  Unlike the court, the panel of enquiry is not expected to embark on prove beyond reasonable doubt before a recommendation can be made.

74.                        According to counsel the two administrative bodies went beyond surface and carried out through investigation of the allegations that were made against the claimant. He was invited his accusers were also invited he was given opportunity of making representations at the panels.  Counsel for the defendants insisted that exhibits DWA and DW2A, have satisfied what the law require of them as administrative bodies or panels of inquiry.

75.                        Counsel further submitted that the defendants have duly complied with the procedure for discipline laid down in chapter 3 of exhibit DWH, conditions of service governing employment of the claimant, as the claimant was queried, thereafter a panel of investigation was set up where he appeared, thereafter he appeared before the staff disciplinary committee, where he was afforded opportunity to defend himself.

76.                        From the pleadings and evidence before the court, the main grouse of the claimant centres on the alleged non-compliance by the defendants to due process in dismissing him from the service of the 1^st defendant, in that there was violation of fair hearing in the conduct of the disciplinary procedure that culminated in his dismissal from service. The Claimant instituted this suit purposely to challenge his disengagement from service of the defendants on the ground that the procedure laid down for taking disciplinary action as stipulated in the Akwa-Ibom University, Uyo, conditions of service 2018, which was tendered and admitted in evidence as exhibit CW1V, DWH. The claimant insisted that the defendants failed to follow the conditions of service as his right to fair hearing was violated.

77.                        The Claimant is contending that termination of his employment by the defendants should be declared null and void of no effect, whatsoever due to non-compliance and adherence with the provision of the rules and regulations of Akwa-Ibom State University, governing employment of the claimant with the university.

78.                        The defendants on their part have maintained that due process was followed in dismissal of the claimant, as provided by the conditions of service governing the employment of the claimant with the 1^st defendant.

79.                        It is apt at this juncture to first and foremost ascertain the status of employment of the claimant with the defendants, as counsel for the claimant had submitted that claimant’s employment with the defendants has statutory flavour. There is also the need, in view of reliance placed on the Conditions of Service, 2018, and the provisions of Akwa-Ibom state University Law, 2022, to ascertain the correct applicable law to this action.

80.                        It is well settled position of the law that the law in force or applicable at the time the cause of action arose is the law applicable for determining the case; Utih v. Onoyivwe (1991) LPELR-3436(C); Okonkwo v. Okonkwo (2010) LPELR-9357(SC); Obiuweubi v. Central Bank of Nigeria (2011) LPELR-2185(SC). This matter was filed on 17/4/2020, the applicable law will be the law applicable as at the time the cause of action arose. The decision would be guided by the existing law as at the time of accrual of cause of action and would be unaffected by any subsequent changes to the law. See Aomo Ltd v Martins (2017) LPELR-43504(CA). To ascertain the time or date of accrual of cause of action, the claim before the court and the pleading supporting the claim are the materials to be considered. In this case the claimant is challenging his dismissal from service, which took place on 30/1/2020. See exhibit DWQ, and paragraph 1 of the statement of facts. This means the applicable law to the claimant’s suit, will be, the law applicable to his employment as at 30/1/2020. From this finding the Akwa-Ibom State University, Law, 2022 is not applicable to this suit, because as at 30/1/2020, when the claimant was dismissed from service, the said law has not come into force, as it was yet to be given birth to. As at 2020, the law in force as at the time of accrual of cause of action is the Akwa-Ibom State University Law, 2009. This means the applicable law in this case will be the, 2009 Law and the Conditions of Service, 2018.

81.                        It is settled law that there are three categories of employment which are (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer, and (c) those where the employment is regulated or governed by statue, often referred to as having statutory flavour. See Olaniyan V University of Lagos (1985) 2 NWLR. (PT.9) 599; Olarenwaju V. Afribank (Nig.) Plc (2003) 13 NWLR (PT.731) 691. In CBN V. Igwilo, the Supreme Court explained that an employment is said to have a statutory flavour "when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee." When an employment is found to have statutory flavour, the employee in essence enjoys a special status which is beyond that of the master/servant relationship and in order to discipline that person the procedure created by that statue must be followed. See University of Ilorin V Abe (2003) FWLR (PT. 164) 267; Kunle Osisanya V. Afribank Nigeria Plc (2007) 6 NWLR (PT.1031) 565; Comptroller General of Customs & Ors. V Gusau (2017) LPELR – 42081.

82.                        In this case the claimant was vide exhibit CW1A, letter dated 21/3/2016, employed by the 6^th defendant, the governing council of the 1^st defendant, as Senior Lecturer in the Department of Philosophy on salary grade level CONUASS 5 step 2. The claimant’s employment was confirmed, as per exhibit CW1B. Thereafter, the claimant served on various capacities, see exhibits CW1C, CW1D, CW1E, CW1F, CW1G and CW1J. The claimant was promoted to the rank of Associate Professor as per exhibit CW1K. The 6^th defendant, governing council of the 1^st defendant that employed the claimant was established by section 5 of the Akwa-Ibom State University Law of 2009. By section 7 of the Akwa-Ibom state University, Law, 2009, the governing council of the 1^st defendant is saddled with the responsibility to employ, promote, control and discipline members of staff of the 1^st defendant. The 1^st defendant pursuant to the provisions of the Akwa-Ibom University Law, made exhibit CW1V, which is same with exhibit DWA, the conditions of service of Akwa-Ibom state University, 2018.

83.                        The claimant having been employed by the 6^th defendant, the governing council of the 1^st defendant as an academic, his employment is governed by the Akwa-Ibom University, Law of 2009 and the Conditions of service of Akwa-Ibom State University, 2018. The Akwa-Ibom University, Law, 2009, has made ample provisions on procedure for employment, promotion and discipline of academic staff of the 1^st defendant. A careful perusal of the provisions of the Akwa-Ibom State University, Law, clearly shows that employment as academic or administration or professional staff falls within the category of employment that has statutory flavour. In coming to this conclusion, I took a holistic view of exhibit exhibits CW1A, CW1B, CW1K and the provisions of the Akwa-Ibom State University, Law, 2009, pursuant to which the claimant was employed by the governing council of the 1^st defendant in exercise of the powers conferred on it by the Akwa-Ibom State University, Law, 2009. This is because in determining the question of whether an employment has statutory flavour or not, the Court must look at the construction of the contract and the relevant statute. See OJABOR vs. HON. MINISTER OF COMMUNICATIONS & ORS (2018) LPELR - 44257 in this case, the Court of Appeal affirmed what has been the law thus: "A contract of employment enjoys statutory favour where its conditions are governed by provisions of statute or regulations derived from statute." The Court went further to state that: "the mere fact an employer is a creature of a statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment status into one with statutory flavour. Rather, there has to be a linkage or nexus between the employee's appointment with the statute creating the employer or corporation." See also FAKUADE VS. OAUTH (1993) 5 NWLR (PT. 291) 47, Idoniboye-Obu v NNPC (2003) LPELR- 1426 (SC).

84.                        Additionally, an employee who claims wrongful termination of his employment with statutory protection "must prove the following material facts: (a) that he is an employee of the defendant; (b) the terms and conditions of his employment; and (c) the way and manner and by whom he can be removed." See UJAM VS. I.M.T. (2007) 2 NWLR (PT. 1019). In the case at hand, the claimant is relying on the provisions of exhibits CW1V and DWH, to press home his claim.

85.                        Let me say here that the provisions of the law which establishes the 6^th defendant and cloth it with power to employ, promote and discipline the academic, administrative and professional employees of the 1^st defendant clearly invest the employees with a legal status; a status which makes his relationship with the defendants to certainly go beyond the ordinary or mere master and servant relationship. The claimant’s employment was pursuant to exhibit CW1A and provisions of the law establishing the defendants. This is because the employment was in the exercise of power conferred by the law on the 6^th defendant, governing council of the 1^st defendant that made the said appointment. This means the employment is protected by statute. See also Federal Capital Development Authority V. NAIBI (1990) LPELR - 1262 (SC); CBN V Igwilo (2007) 14 NWLR (PT.1054) 393, Comptroller General of Customs & Ors V Gusau (2017) LPELR - 42081 (SC).

86.                        My finding on status of claimant’s employment with the defendants is in line with the Supreme Court's decision in a plethora of cases to the effect that "for an employment to be deemed one with statutory flavour it must have statutory reinforcement or at any rate be regarded as mandatory; 2. To be directly applicable to the employee or person of his cadre; 3. To be seen to be intended for the protection of that employment; and 4. Have been breached in the course of determining the employment before they can be relied on to challenge the validity of that determination." See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Bamgboye v. University of Ilorin (1999)10 NWLR (Pt. 622) 290; U.M.T.H.M.B v. Dawa (2001) 16 NWLR (Pt. 739) 424; Shitta-Bey v. F.R.S.C. (1981) 1 SC 40; Achibong Um, O Udo v. Cross-River State Newspaper Corporation & Ors (2002) FWLR (Pt. 104) P. 677, Mrs. Fakuade v. OAU Teaching Hospital (1993) 5 NWLR (Pt. 291) P. 24, Imoloame v. WAEC (1992) 9 NWLR (Pt.265) 303, Chief Tamunoemi Idoniboye-Obu V National Petroleum Corporation (2003) LPELR- 1426, Comptroller General of Customs & Ors. V Gusau (2017) LPELR - 42081 (SC).

87.                        The term "statutory flavour" simply means "covered by statute". Thus, an employment will be taken as enjoying statutory flavour when it is covered or governed by statutory provisions in every material particular as to appointment of the employee, termination or dismissal and other sundry conditions. See Adegoke V Osun state College of Education (2010) LPELR-3601(CA). The employment of the claimant having been made by the 6^th defendant, the governing council of the 1^st defendant in the exercise of powers conferred on it by the Akwa-Ibom State University, Law, 2009, is one that has statutory backing, thereby elevating it above ordinary master servant relationship.

88.                        Having found the claimant’s employment to be one laced with statutory flavour, for the defendants to discipline the claimant they must do so in compliance with the laid down procedure for removal of the claimant as stipulated in the statute and other conditions of service applicable to his employment, which must be in conformity with the statute establishing the office of the claimant i.e Akwa-Ibom State University, Law, 2009. It is only when the action of the defendants is carried out in compliance with the statute that the action can be sanctioned and approved by the court. The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See Bamgboye V University of Ilorin (1999) 10 NWLR (PT.622) 290; Olatunbosun V N.I.S.E.R. COUNCIL (1988) 3 NWLR (PT. 80) 25, Iderima V RSCSC (2005) LPELR-1420(SC).

89.                        As pointed out earlier in this judgment, provision have been made in the law establishing the defendants for removal of academic staff like the claimant in this case. See section 20 of the Akwa-Ibom State University Law, 2009. This means for the defendants to lawfully disciplined the claimant, the provisions of section 20 must be complied with. This is because for an employment enjoying statutory flavour to be determined the provisions of the statute regarding the determination of the employment must of necessity be determined in the way and manner prescribed by the relevant statute and any other manner of determination inconsistent with what the statute prescribed would be null and void. See Iderima v. Rivers S.C.S.C. (2005) 16 NWLR (Pt. 951) 378; Imoloame v. W.A.E.C. (1992) 9 NWLR (Pt.265) 303; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Public Service Commission(1981) 1 SC 40. Employment that has statutory flavour can only be terminated in the manner allowed by the very statute that provided for it. see Osisanya v. AfriBank Nigeria Plc (2007) 6 NWLR (Pt. 1031) 565; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290. The only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (2010) 6 NWLR (Pt. 1189) 1.

90.                        Before proceeding to consider the case of the claimant, it is apposite at this juncture to refer to section 20 (9) of the Akwa-Ibom State University Law, 2009, this is necessary due to the heavy reliance by the parties on the Conditions of Service, 2018, exhibits CW1V and DWH. Section 20(9) provides:

‘’The provisions of this section shall not prevent the council from making regulations for the discipline of other categories of staff and workers of the university as may be prescribed’’.

91.                        It clear from the above provision of this sub-section (9) of section 20 that the provisions of exhibits CW1V and DWH conditions of service 2018, does not apply to academic, administrative or professional staff of the 1^st defendant. The power to make rules conferred by the sub-section is only in respect of members of staff not covered under the provisions of section 20 of the Akwa-Ibom State University Law, 2009. This also goes to show that reliance on exhibits CW1V and DWH by the parties was based on misconception. 

92.                        Now, I turn to consider the propriety or otherwise of determination of claimant’s employment.

93.                        It is clear from the facts pleaded by the parties and evidence adduced before the court that the dismissal of the claimant was predicated on acts of misconducts. This being the case the claimant whose contract of service is backed by statute is entitled to undergo the processes stipulated by the provision of section 20 of the Akwa-Ibom State University, law, 2009, before his employment can be lawfully and properly determined.

94.                        The defendants have made heavy weather on claimant’s collecting money from students into his personal account, selling unauthorised books to students, tempering with examination result and not being eligible for employment because he was once dismissed from service by Redeemer’s University. It is to be noted that this court is not sitting on appeal on the decision of the 6^th defendant, the governing council to dismiss the claimant from the service of the 1^st defendant, the duty to be performed by this court must be confined to compliance with the procedure laid down by law on taking such action in dismissing the claimant.

95.                        It is trite law that an employee claiming or seeking voiding of dismissal from service must be able to convince the court by establishing that the termination of his employment is unlawful. This burden is discharged by the employee by proving that he is an employee of the defendant, the terms and conditions governing his employment, who can appoint and who can remove him from service. In what circumstances the appointments can be determined by the employer and how the terms or conditions of service were breached. See Okomu Oil Palm Co. Ltd. V. Iserhienrhien (2001) 6 NWLR (Pt.710) 660 at 673; Emokpae v. University of Benin (2002) 17 NWLR, (Pt.795); Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356; Adeniran v NEPA (2002) 14 NWLR (Pt. 786) 30, Oloruntoba-Oju V Abdurraheem (2009) 3 NWLR (Pt.1157) 83.

96.                        I have in earlier part of this judgment found that the claimant’s employment enjoys statutory flavour. This means the terms and conditions of service governing the employment of the claimant are specifically provided for by statute or regulations made thereunder.

97.                        With the above finding, I am now saddled with the task of considering whether the procedure adopted by the defendants in dismissing the claimant from service has followed due process of law as encapsulated in the statute investing the claimant with statutory flavour. To put it differently, whether the applicable statute and conditions of service or regulations governing the employment of the claimant were duly complied with by the defendants in dismissing the claimant from service. This is because in determining contract of employment with statutory flavour, the letters of the law must be followed, as any infraction or non-adherence to the procedure laid down would render the exercise resulting in termination null and void of no effect whatsoever. See Adeniyi v. Governing council of Yaba College of Technology (1993) 6 NWLR, (Pt. 300) 426, Olaniyan V University of Lagos (Supra).

98.                        Section 20 of the Akwa-Ibom State University Law, 2009, has made ample provisions for disengagement of a member of staff of the defendants, who is an academic, administrative or professional staff. The claimant in this case is an academic. The provisions of section 20 of the Akwa-Ibom State, University, Law, 2009, read:-

99.                        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 the 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-

1.     give notice of those reasons to the person in question;

2.     afford him an opportunity of making representations in person on the matter to the Council; and

3.     if he so requests or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-

(b)                  for the disciplinary committee to investigate the matter and report and to report on it to the council; and

(c) for the person in question to be afforded an opportunity of appearing before and being heard by the disciplinary committee, with respect to the matter, and if the Council, after considering the report of the disciplinary committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove the person by any instrument in writing signed on the directions of the Council.

100.                   The above quoted provision of the Akwa-Ibom State, university, law, 2009, is very clear and unambiguous. The section vests disciplinary powers in the Council provided that such powers are to be invoked 'if it' appears to the council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University other than the Vice- Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the function of his office or employment. Although it may appear to it by any other means, usually it is when the council would have received the report and recommendations of its committee that it would "appear" to it that there are reasons for believing that the member of staff concerned deserved to be removed from his office or employment on the ground of misconduct.

101.                   By section 8 of the Akwa-Ibom State University, Law, 2009, in appropriate cases, the council can constitute a joint committee of council and senate to investigate the matter and report on it to Council. The Committee has no power to take a final decision; it is the Council that can do so. however, the setting up of committee by council is only allowed where the claimant has requested for it or three members of the council have requested for the setting up of the committee. In the case at hand there was no such request made by the claimant or three members of the council. This means the issue of even compliance or non-compliance with exhibit CW1V, DWH, does not arise in this case.

102.                   The provisions of section 20 of the Akwa-Ibom State University, Law, 2009, require the Council to give notice of the reasons which make it appear to the Council that disciplinary powers should be invoked to the person in question and afford him an opportunity of making representation in person on the matter to the Council, puts it beyond peradventure that the Council has a duty to act judicially. The apex court had in the case of Bamgboye v University of Ilorin in considering section 15 of the University of Ilorin Act, which is impari materia with section 20 of the Akwa-Ibom University, Law, 2009, categorically made it clear that the power of removal of persons to whom the section applies cannot be delegated. This clearly goes to show that the council of the Akwa-Ibom State University to whom the law has entrusted with power of discipline of erring academics like the claimant in this case is not permitted by the law to delegate its responsibility to any ad hoc panel or committee established by the Conditions of Service, where the disciplinary action on ground of misconduct as in this case or inability to perform function of office are in issue. In the case at hand, as found earlier in this judgment, the Conditions of Service exhibit CW1V and DW2A, is not even applicable to the case of the claimant. Let me also say here that even if, the conditions of service is found to be applicable, it is not capable of donating such power to the panel or committee in the face of the substantive law, as the conditions of service is inferior to the provisions of the law, as the conditions of service derives its power from the substantive law. See Bamgboye v University of Ilorin (supra).

103.                   In the recent unreported decision of the Court of appeal, Jos, Division, in the case of University of Jos v Nwankwo, in appeal number CA/J/307/2019, the decision of which was delivered on 27^th day of January, 2025, had made it very clear that the process for removal of academic, administrative or professional staff, other than the Vice-Chancellor begins with the council and concluded by the council. However, in the case at hand the evidence before the court shows that the disciplinary processes that led to dismissal/removal of claimant from office were not initiated by the council. Rather it was the Vice-Chancellor and the Registrar that initiated the processes this is in clear violation of the provisions of section 20(1) of the Akwa-Ibom State University, Law, 2009. This is because by the decision in the case of University of Jos v Nwankwo (supra), it was made clear that the discipline of academic, administrative and professional staff in case of misconduct that will lead to removal of the staff concerned like the claimant in this case begins and end with the council of the University. Applying the decisions in the case of Bamgboye v University of Ilorin (supra) and the unreported court of appeal Jos division in the case of University of Jos v Nwankwo (supra), to the case at hand, for the claimant in this case, to be validly removed/dismissed from service, the governing council of the 1^st defendant must be in charge of the disciplinary action. The governing council must be the one to begins the disciplinary action by notifying the claimant of the allegations against him which may lead to his removal from service and the council must be the one to end the process i.e. dismissed the defendant after it has given him opportunity to defend himself before the council. The two decisions also point to the fact that the function or power of the council must not be performed or undertaken by anybody or person or even by a committee of the council. This is because the council is not permitted to delegate its statutory duties in the absence of clear provision of statute granting to it such power of delegation.

104.                   By section 20(1) (a) (b) C) and (d), an investigation committee may be set up to investigate the claimant, but this is at the request of the claimant or three members of the council, and this must be done within one month of notifying the claimant of acts of misconduct. However, this is not the case herein as the claimant never request for setting up on investigation committee and there is also no evidence before the court showing that 3 members have requested for setting up of investigation committee.

105.                   I have no doubt in my mind the panel set up by the 3^rd defendant to investigate the claimant which came up with exhibit DWA has no place in the scheme of things or had any backing of the law to support its work in so per as section 20 of the Akwa-Ibom State university Law, 2009 is concerned. Likewise, the purported Staff Disciplinary Committee that investigated the claimant and came out with report tendered and admitted in evidence as exhibit DW2A, has no place in the case at hand.

106.                   I am of the firmed belief that the argument of counsel in paragraph 4.13 of the defendants’ final written address was made in realisation of the fact that the report of the panel of investigation and that of staff disciplinary committee are fact-finding, the primary mission of which is to investigate allegations of infraction made against the claimant. Therefore, the reports cannot be used to dismiss the claimant without the council notifying the claimant with the reasons that appears to the council to warrant taking of disciplinary action against the claimant and giving him opportunity to make representation in person. It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only, as was done in this case. See State Civil Service commission v Bazugbe (1984) 7 SC 19, see also FUT, Yola v Maiwuya & 2 Ors. (2014) 3 ACELR 64 @ 75.

107.                   The case of the claimant as can be gleaned from his pleadings are as contained in paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 26, 28, 29, 30, 31, 32, 33 and 34 of the statement of facts, is to the effect that the defendants did not comply with extant laws and regulations in terminating his employment, as his right to fair hearing was violated by the procedure adopted by the claimant in dismissing him from service. While the defendants maintained that due process was observed as the claimant has appeared before two committees and his termination was by the council of the 1^st defendant.

108.                   A careful perusal of the defence of the defendants and their submission in the final written address will clearly show that there is infraction of the provisions of section 20 of the Akwa-Ibom State University Law, 2009, which vested on the governing council of the university power to take charge of conduct of disciplinary action on the alleged misconduct against the claimant. The governing council was clearly excluded from the performance of its duty by the 3^rd defendant by directing issuance of queries to the claimant and setting up panel and committee to investigate the claimant. This is a clear usurpation of powers of the governing council as donated to it by the extant substantive law.  The 3^rd defendant took charge by directing issuance of queries to the claimant. He also set up investigation panel. For the staff disciplinary Committee, it was said to be the committee of the council and the senate of the university. This undoubtedly shows that the council never notified the claimant of the allegation of misconduct or even invited him to appear before it to defend himself. As was the case in the case of Bamgboye v University of Ilorin (supra). This also goes to show that contrary to the assertion of the defendants, the claimant was never accorded fair hearing by the governing council of the 1^st defendant, as he was never notified of the allegation or invited to appear before the council to defend himself by making representation. It is also clear from exhibit DWQ letter of dismissal that the council did not investigate the claimant, it only relied on the two reports received from the panel of investigation and staff disciplinary committee, which it reviews in dismissing the claimant. The action of the governing council in dismissing the claimant after review of the two reports exhibits DWA and DW2A, is unlawful, invalid, null and void as the said decision was reached in violation of the extant provisions of the law establishing the governing council and empowering it to disciplined the claimant, as the council never notified the claimant of the allegations against him and never invited him to appear before the council in person to defend himself.

109.                   The reason why the panel and committee report exhibit DWA and DW2A, does not meet the requirement of the law in that the said panel and committee were set up by the 3^rd defendant, in disregard of statutory disciplinary power of council, which by law cannot be delegated, in the absence of an express statutory authority to delegate. In the case at hand, the governing council allowed the 3^rd defendant to usurp its powers, this is against the law.

110.                   The brazen breach of fair hearing by the defendants in not affording the claimant opportunity by the council to defend himself or even be notified with the reasons that appears to the council to exists for removal of the claimant from service  is a clear violation of his right to fair hearing before dismissal, his right was undoubtedly undermined and amount to infraction of section 20 of the Akwa-Ibom State University, Law, 2009 and section 36 of the constitution, as amended. See Eze v university of Jos (2017) LPELR-42345(SC).

111.                  The cardinal rule of fair hearing is expressed in the maxims "audi alteram partem" which means the other side must be heard and "nemo judex in causa sua", which means that there should be no evidence of bias, so that no one shall be a judge in one's own cause. Any proceedings conducted in breach of a party's right to fair hearing, no matter how well conducted, would be considered a nullity. See Darma v Ecobank (Nig) LTD (2017) 9 NWLR Party 1571 Page 480 at 501 Para C - E per Sanusi JSC; Abah v Monday (2015) 14 NWLR Part 1480 Page 569 at 595 Para E - H per Kekere-Ekun JSC; Sylva v Independent National Electoral Commission (2015) 16 NWLR Part 1486 Page 576 at 620 - 621 Para H - C per Ngwuta JSC.

112.                   Assuming without conceding that the reports tendered and admitted in evidence as exhibits DWA and DW2A, were properly and legally, the outcome of an investigation, they still cannot be accorded any evidential value, the reason being that exhibit DWA is undated, in law an undated document is worthless. See Mr. Yoris Visinoni v Mrs. Tina Brahams & Anor. (2015) LPELR-40405(CA) wherein the Court held thus: An undated document was held to be invalid and has no probative value. Also see Ogbahon V. Reg. Trustees CCCG (2001) FWLR (PT. 80) 1496; Oluwaronti v Sonola (2022) LPELR-57839(CA), these decisions shows that undated document has no evidential value in the eyes of the law.

113.                   For exhibit DW2A, the claimant has averred that some members of the Panel of investigation that produced exhibit DWA, were made members of the Staff disciplinary committee that produced exhibits DW2A. This means that there is likelihood of bias in the report as contained in exhibit DW2A, due to presence of members of the panel of investigation that also sat in the staff disciplinary committee. Therefore, exhibit DW2A, report of the Staff disciplinary committee was bias against the claimant as the members of the committee that were in the Panel of investigation ought to not have been made members of the staff Disciplinary Committee the presence of the members in both committees clearly established bias and that amount to violation of claimant’s right to fair hearing as encapsulated in the doctrine of ‘’audi alterenm parten’’ and ‘’nemo judex in causa sua’’ see University of Jos v Nwankwo (supra).

114.                   To further show that there is breach of fair hearing, page 7 of exhibit DW2A, stated that Miss Susan Hillary Ikara was not available at the time to give her testimony. The committee therefore relied on the report of the administrative panel of investigation the committee adopted findings of the Panel. This has shown that rules of fair hearing.  were not complied with, as one person did not appear before the Committee to testify, but the Committee proceeded to adopt the evidence at the Panel of investigation.

115.                   The stipulations in the law requiring that council of 1^st defendant should notify claimant of reasons why he should be removed and afford him an opportunity of making representation, are mandatory. They must be fulfilled, as they are mandatory. See Adeniyi v Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, Oloruntoba-Oju v Abdul-Raheem (2009) 13 NWLR (PT.1157) 83(SC). The two conditions are preconditions to the validity of dismissal. The validity of claimant’s dismissal is dependant on adherence to the provision of the law.

116.                   It is to be noted that there is a world of difference between the council of the university and the joint council/senate disciplinary committee. They do not serve same purpose; the council has final say in disciplinary matter when due process is followed. The defendants having failed to comply with the procedure laid down in section 20(1) in dismissing the claimant from service, the dismissal cannot stand, it is hereby nullified.

117.                   From all I have been saying above the 6^th defendant, the governing council of the Akwa Ibom State University has failed and neglected to perform its duty as required by law when dealing with disciplinary proceedings involving an academic staff of the university. The failure by the 6^th defendant to afford the claimant fair hearing in taking action detrimental to his legal right as the council never notified him of any allegation nor afforded him opportunity to appear in person before the council to defend himself on the allegations of misconduct, the entire disciplinary action is a nullity.

118.                   In the circumstances, the case of the claimant succeed in the terms as follows:-

                                i.            A declaration is hereby granted that the dismissal of the Claimant from the employment of the 1^st Defendant is unlawful, null and void and of no effect whatsoever.

                             ii.            A declaration is hereby granted that the purported dismissal of the Claimant from the employment of the 1^st Defendant negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

                           iii.            A declaration is hereby granted that the Claimant is still in the service of the 1^st Defendant.

                           iv.            An order is hereby granted setting aside the purported dismissal letter dated the 30^th January, 2020 issued to the Claimant.

                              v.            An order is hereby granted compelling the Defendants to reinstate and/or restore the Claimant to his post as an Associate Professor in the service of the 1^st Defendant with all his rights and entitlements of the office.

                           vi.            Relief 6 is not grantable as it is vague and uncertain, the Supreme Court had cautioned on grant of vague and uncertain relief. The claimant in this case is seeking for an order compelling the defendants to pay the claimant all the salaries due to him from the period he was suspended until judgment and henceforth. The claimant has not stated the quantum of his claim and has not even proved how much is his salary that he wants the court to order the defendants to pay him. In Unijos v Ikeguoha (2013) LPELR-20233(SC), the Supreme Court has this to say:-

''...it is also trite law that a claim that is vague and lacking in certainty is no claim at all.'' 

119.                   Before drawing curtain on this judgment, firstly let me say that the allegations contained in the petitions written against the claimant grave and weighty in nature. It is clear to me and every parent having children in the University or intended to send his/her child to the University, will be greatly worried and concerned with the revelations from the contents of the petitions written against the claimant revealing acts of financial propriety and immorality. The allegations contained in the various complaints against the claimant are of such a nature that no serious institution should treat with levity. The conduct of the claimant-as encapsulated in the petitions shall be a source of great concerns to all well-meaning Nigerians. As those who works in institution of higher learning parting knowledge to younger once are expected to be above board and serve as beacon of hope for future generation. Those to be entrusted with future leaders must act by example and resist any temptation that will question their moral rectitude and standing in the society.

120.                   It is sad, to note in this case, despite the gravity and weighty nature of the complaints against the claimant, the University authority failed and neglected to do its work as required by the relevant law, thereby allowing the culprit to escape the long arm of the law.

121.                   It is time for Universities in this Country to buckle up to ensure that taking of stern decisive action to punish serious wrongdoing by any member of the university community.  There is need for such kind of behaviour to be sanctioned, so as to serve as deterrence to those teachers in the citadel of learning who may want follow the footsteps of the claimant.

122.                   Secondly, there is need for counsel to be circumspect in writing their addresses to ensure correct citations of cases and laws relied on are properly and correctly stated in addresses. In the case at hand both counsel are guilty of stating that they are relying on case law or a provisions of statute or exhibit but failed to state the case, law or exhibit to be relied on.

123.                   I make no order as to cost. Parties to bear their respective cost.

124.                    Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Joseph Oloko, Esq; for the claimant

Okemin udim, Esq; for the defendants.