IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI
BETWEEN
EMMANUEL
UDOH-EMAH - CLAIMANT
AND
NATIONAL OPEN UNIVERSITY OF NIGERIA - DEFENDANT
Representation:
Chijioke
O. P. Emeka, SAN with Mcwilliams o. Nwaogu for the Claimant
N. Ogunsaku with F. Agbebi for the Defendant
JUDGMENT
Introduction and Claims:
1. On 24th December 2019, the Claimant filed this suit via an originating summons. On the 16th of November 2021
considering the nature of the facts deposed to in the exchanged processes, the
Court with the consent of parties, ordered that the suit be converted to a
complaint. In the General Form of
Complaint dated 24th November 2021, the Claimant seeks the following
reliefs against the Defendant:
(a)
A DECLARATION that having regard to the provisions of Section 14(2) and
(3) of the National Open University Act 1983 (as amended), the suspension of
the Claimant’s employment as an administrative staff of the National Open
University of Nigeria was unlawfully carried out.
(b) A DECLARATION that having regard to the
provisions of Section 14(1), (3) and (4) of the National Open University Act
1983 (as amended), the termination of the Claimant’s employment as an
administrative staff of the National Open University of Nigeria was unlawfully
carried out.
(c) AN ORDER setting aside the letter of
suspension dated 6th August, 2013 issued to the Claimant purportedly
suspending him from office as an administrative staff of the National Open
University of Nigeria, same being unlawful, illegal, null and void.
(d) AN ORDER setting aside the letter of
termination of employment dated 6th December, 2013 issued to the
Claimant purportedly terminating his employment as an administrative staff of
the National Open University of Nigeria, same being unlawful, illegal, null and
void.
(e) MANDATORY INJUNCTION directing the
Defendant to forthwith reinstate the Claimant to his employment as an
administrative staff of the National Open University of Nigeria.
(f) MANDATORY INJUNCTION directing the
Defendant to restore the Claimant to what would have been his rank and status
as an administrative staff of the National Open University of Nigeria had the
unlawful suspension and termination not taken place in the first place.
(g) MANDATORY INJUNCTION directing the
Defendant to forthwith pay the Claimant all arrears of salaries and allowances
due and accruing to him from 6th August, 2013 to 6th
December, 2013, the period of his unlawful suspension; and from 6th
December, 2013 till the date of his reinstatement.
(h) MANDATORY INJUNCTION directing the
Defendant to reinstate and regularize forthwith all statutory contributions and
benefits due to the Claimant under the Pension Scheme, the National Health
Insurance Scheme, the National Housing Scheme and any other similar benefit
inuring and attaching to his employment, stopped, suspended or withdrawn as a
result of the unlawful termination of his employment
(a)
Offer Letter of Appointment dated 19th December, 2006 -
Exhibit C1
(b)
Letter of Confirmation of Appointment of
3rd February, 2009 - Exhibit C2
(c)
Defendant’s letters of commendation
dated 8th May, 2007 - Exhibit C3
(d)
Defendant’s letters of commendation
dated 27/10/2008 - Exhibit C4
(e)
Letter of suspension dated 6th
August, 2013 - Exhibit C5
(f)
Defendant’s letter of invitation to a
meeting dated 6/9/2013 - Exhibit C6
(g)
Letter of termination dated 6th
December, 2013 - Exhibit C7
(h)
Claimant’s letter of appeal to the Chairman Governing Council dated
25th May, 2015 - Exhibit C8
(i)
Claimant’s letter of appeal to the Vice-Chancellor dated 25th
May, 2015 - Exhibit C9
(j)
Claimant’s second letter of appeal to the Chairman Governing
Council dated 29th March, 2017 - Exhibit C10
(k)
Claimant’s second letter of appeal to the Vice-Chancellor dated 29th
March, 2017 - Exhibit C11
(l)
Schemes of Service for Use in the Civil Service of the Federation
2003 - Exhibit C12
(m)
The Federal Government’s Circular on Consolidated Tertiary
Institutions Salary Structure II (CONTISS II) dated 8th December, 2009 - Exhibit
C13
(n)
Internal Memo Preliminary Report on Investigation Conducted on
June/July 2010 Examination Leakage dated 27th July, 2010 - Exhibit C14
(o)
Letter of Promotion dated 22nd June, 2010 - Exhibit C15
(p)
Letter of Promotion dated 19th February, 2013 - Exhibit
C16
(a)
Offer of
Appointment Letter dated 19th December, 2006 - Exhibit D1
(b)
Confirmation
of Appointment Letter dated 3rd February, 2009 - Exhibit D2
(c)
Staff
Annual Performance Evaluation Report for the year 2012 as filled out by the
Claimant on 11th October 2012 - Exhibit D3
(d)
Report
of the Disciplinary Committee on Staff of the Makurdi Study Centre forwarded to
the Vice-Chancellor with an Internal Memo dated 12th June 2013 - Exhibit
D4.
(e)
Report
on the Further Investigation of Mr. Udoh-Emah Emmanuel forwarded to the
Vice-Chancellor with an Internal Memo dated 7th November 2013 - Exhibit
D5.
(f)
The
Vice-Chancellor’s Note on Page 182A of the Report dated 7th November
2013 - Exhibit D6.
(g)
The
Invitation to appear before the Staff Disciplinary Committee dated 6th
September 2013 - Exhibit D7.
(h)
The
Letter of termination dated 6th December 2013 - Exhibit D8.
(i)
The
Letter of suspension dated 6th August 2013 - Exhibit D9.
At the end of trial, the Court ordered
the parties to file their respective final addresses. The Final Written Addresses
was adopted on 30th of September 2026 and the Court thereafter adjourned the case for judgment.
CASE OF THE CLAIMANT
4. The Claimant was offered appointment as an
Administrative Officer II vide a letter dated 19th December 2006 by the
Defendant. He accepted the offer and assumed duties in January 2007. By a
letter dated 3rd February 2009, the Claimant's appointment was confirmed. The
Claimant worked in the Academic Office (Registry) from January 2007 to
September 2008 as an Administrative Officer II; and in October 2008 he was
posted to the Office of the Deputy Vice-Chancellor (Academic) where he worked
at different times as a Statistician, Secretary and Clerical Officer. He received
two letters of commendation dated 8th May 2007 and 27th October 2008 for hard
work, commitment and dedication to duties.
On 15th May 2013, the Claimant was orally invited by the Deputy
Vice-Chancellor (Administration) who directed him to the University Conference
Room. The DVC introduced him to a 'Staff Disciplinary Committee' which the Vice
Chancellor set up to investigate some incidents at the Makurdi Study Centre.
The Claimant denied the allegations vehemently and informed the Committee that
he never worked at the Makurdi Centre. On
6th August 2013, the Claimant received a letter of suspension authorized by the
office of the Registrar and issued by the Principal Assistant Registrar (HR/SS)
for the Registrar.
The Claimant contends that:
·
The
DVC and Vice Chancellor lack power to set up the purported 'Staff Disciplinary
Committee'
·
No
prior notice was given to enable the Claimant prepare his defence
·
The
Office of the Registrar has no power to authorize suspension
·
Only
the Vice Chancellor or Council has power to suspend him
5. On 6th
September 2013, the Claimant was called on his mobile phone to appear before a
panel on 9th September 2013. A letter
of invitation dated 6th September 2013, authorized by the office of the DVC
(Administration) and issued by the Secretary, 'Staff Disciplinary Committee',
was handed to the Claimant. The Committee inquired into a task the DVC directed
him to handle at the Uyo Study Centre in 2010 - different from the Makurdi
Centre incident upon which he was suspended. On 21st December 2013, the
Defendant issued a letter of termination dated 6th December 2013, emanating
from the Office of the Registrar and issued by the Deputy Registrar (HR/SS) on
behalf of the Registrar, alleging that the termination was directed by the Vice
Chancellor purportedly acting on behalf of the Council. The Claimant states that the suspension was
wrongful based on the fact that:
·
The
Vice Chancellor lacks power to set up the 'Staff Disciplinary Committee'
·
The
Committee was strange and unauthorized
·
He
was not given fair hearing having not been given prior notice
·
The
Office of the Registrar lacks power to authorize suspension
·
Only
the Vice Chancellor and Council have power to suspend
The Claimant states that
his termination was wrongful
because:
·
The
Council never served him with notice of reasons for believing employment should
be terminated
·
The
Council failed to afford him opportunity of making representations
·
It
is the Council which has power to give notice and conduct hearing
·
He
never elected to be investigated by a JCCS
·
The
DVC and Secretary have no power to invite him
·
The
Vice Chancellor has no power to set up the Committee
·
Allegations
leading to suspension were on Makurdi Centre events while those leading to
termination were on Uyo Centre events
·
It
is the Council that has power to set up a JCCS
·
The
'Staff Disciplinary Committee' has no disciplinary power
·
The
letter of termination wrongly emanated from the Office of the Registrar
·
The
termination was wrongly authorized by the Vice Chancellor
·
Only
the Council is empowered to terminate
The Claimant wrote letters dated 25th May 2015 to
the Vice Chancellor and Chairman, Governing Council appealing for review of the
termination but received no response. He wrote similar letters dated 29th March
2017 but received no response hence, this suit.
CASE OF THE DEFENDANT
6. It is the case of the Defendant that the
Claimant's employment was terminated on 6th December 2013 vide a Termination of
Appointment letter dated same date. The action was instituted on 24th December
2019, clearly over 7 years after the termination, and is therefore
statute-barred by virtue of Section 2 of the Public Officers Protection Act Cap
P41 LFN 2004. The Defendant raises a preliminary objection to the jurisdiction
of the Court.
7. It is further
the case of the Defendant that the Offer of Appointment letter dated 19th
December 2006 was issued by the Office of the Registrar and signed by the
Registrar. The Council did not appear anywhere in the Claimant's Appointment
letter or Confirmation letter. The Vice Chancellor on behalf of the
Appointments and Promotions Committee approved the confirmation of the
Claimant's appointment vide a letter dated 3rd February 2009 issued by the
Office of the Registrar and signed by one P.O. Obagunfin, Deputy Registrar
(Personnel) on behalf of the Registrar. It
is the case of the Defendant that in the course of investigation, the Staff
Disciplinary Committee set up by the Vice Chancellor to investigate activities
of some staff at the Makurdi Study Centre noted that the Claimant's name kept
coming up during the Committee's proceedings. The Committee was essentially a
fact-finding committee not set up to investigate the Claimant. In the Report of the Disciplinary Committee
forwarded to the Vice Chancellor with an internal memo dated 12th June 2013,
the Committee found that the Claimant's name kept coming up on issues relating
to examination misconduct and fraud and recommended that further investigation
be carried out on the Claimant's activities at the Uyo Study Center. The Vice
Chancellor has power to set up a Fact-Finding Committee in accordance with the
provision of the University Establishment Act.
The letter of suspension
was issued by the Principal Assistant Registrar in the Office of the Registrar
but denies that the suspension was authorised by the Office of the Registrar.
That the Vice Chancellor suspended the Claimant is clear from the Vice
Chancellor's minute on the Report of the Disciplinary Committee dated 12th June
2013 at paragraph 6.1.9 on Page 24. The Office of the Registrar issued the
letter of suspension as authorized by the Vice Chancellor. The Principal Assistant Registrar
acting on behalf of the Registrar in the performance of his functions as the
University's Registrar issued the letter of suspension. The Claimant was informed
on 6th September 2013 to appear before the Committee on 9th September 2013 and
was given a letter of invitation to that effect. The Claimant had enough time
and notice to prepare for his defence. The
invitation was occasioned by the Vice Chancellor's acceptance of the Report of
the Staff Disciplinary Committee. The Committee's term of reference was to
further investigate the Claimant on his involvement in the inclusion of
students' names on graduation list and on other related allegations.
8.
One of the findings of the Committee as stated in the Report on Further
Investigation dated 7th November 2013 was that the Claimant's name kept coming
up in acts of misconduct in the nature of examination fraud and related
matters. Upon receipt of the Report, the Vice Chancellor accepted the
recommendation that the Claimant's appointment be terminated. The Council by its resolution authorized the
Vice Chancellor to on its behalf terminate the appointment of any staff found
guilty of misconduct under Section 14 of the National Open University Act. It
was in exercise of that power that the Vice Chancellor on behalf of the Council
terminated the Claimant's appointment. The
termination was authorized by the Council, clearly stated in the letter of
termination. The Office of the Registrar issued the letter to convey the
decision of the Council. The Deputy Registrar acting on behalf of the Registrar
in the performance of his functions as the University's Registrar issued the
letter. It is the case of the Defendant that promoting its staff are a
privilege and not one given as of right. For a staff to be eligible for
promotion, he must have successfully fulfilled and met all requirements
including passing the University's promotional examinations. There is no
guarantee that the Claimant would have met the requirements for promotion. The
employment having been terminated in accordance with law, the Claimant is not
entitled to any promotion, salary, allowances, bonuses, remunerations,
statutory contributions or any other benefits.
THE CLAIMANT’S REPLY TO
THE DEFENDANT’S STATEMENT OF DEFENCE
9. The
Claimant replied that although the letter of termination was dated 6th December
2013, it was only on 31st December 2013 that the letter was brought home to him
by a colleague. The Claimant states that
he is on a contract of employment and that the Defendant's officers violated
his constitutional right to fair hearing, failed to observe natural justice,
acted outside the scope of their office and outside their statutory duties.
That Council's power to employ an administrative staff is delegated to the
Vice-Chancellor or Deputy Vice-Chancellor, and by the offer letter and
confirmation letter, the Vice-Chancellor properly employed him, and only the
Council has power to terminate his appointment.
The Claimant replied that the Vice-Chancellor lacks the power to set up
a "Staff Disciplinary Committee" and that the Defendant appointed the
Claimant to investigate examination leakage at the Uyo Study Centre and by an
internal memo dated 27th July 2010, the Claimant forwarded his Report. The
Claimant ordeals were merely triggered by his courageous findings which
affected some favoured staff and that Council did not pass resolution
authorizing the Vice-Chancellor to terminate his employment. That the Council lacks the power to delegate
the power to terminate to any person, including the Vice-Chancellor. That 'Management' is not the same as
'Council'; the Act empowers the Council, headed by the Chairman of Council, to
set up a 'Joint Committee of the Council and the Senate' if the Claimant or
three Council members requested. The
Defendant promotes its staff every three years. The Claimant was promoted
twice, in 2010 and 2013 by letters dated 22nd June 2010 and 19th February 2013,
having passed his promotion exams, before his termination.
SUBMSSIONS OF PARTIES
10. With respect to the preliminary objection, the
Defendant formulated the issue whether “the suit is statute barred having regard to the
provision of Section 2 of the Public Officers Protection Act Cap P41 LFN 2004
and therefore robs the Court of jurisdiction to entertain same”. The Defendant submits that the Claimant’s failure
to institute the action within the 3 months period prescribed by Section 2(a)
of the Public Officers Protection Act after the cause of action arose renders
the cause of action not maintainable and puts an end to the Respondent's right
to commence any action.
11.
The Claimant formulated the issue whether “the Claimant's suit as
constituted is statute-barred by virtue of Section 2 of the Public Officers
Protection Act? The Claimant submits
that the complaints in this suit and the reliefs sought relate to the illegal,
wrongful and unconstitutional suspension and termination of the Claimant's
employment and that in both the suspension and termination, the agents of the
Defendant acted outside the scope of their offices and outside their statutory
and constitutional bounds, which constitutes an exception to the limitation of
time. That a public officer is not
protected by limitation law if his conduct complained about falls outside the
law. They relied on the case of Hassan
v. Aliyu (2010) 17 NWLR
(PART 1223) 547 @ 621 D-E, the Supreme Court per ADEKEYE JSC where the
Court held that:
In effect, the
Public Officers Protection Act is designed to protect a public officer who acts
in good faith and does not apply to acts done in abuse of office and with no
semblance of legal justification. A public officer can be sued outside the
limitation period of three months, if at all times material to the commission
of the act complained of; he was acting outside the colour or scope of his
office or outside his statutory duty or constitutional duty."
12. The Claimant
argues that the Claimant's suspension (Exhibit C5) was authorized by the Office
of the Registrar and issued by the Principal Assistant Registrar, contrary to
Section 14(2) and (3) of the NOU Act which gives the power to suspend to the
Vice Chancellor or the Council; the Termination Letter (Exhibit C7) was
authorized by the Office of the Registrar and issued by the Deputy Registrar
for the Registrar, contrary to Section 14(1) NOU Act which authorizes only the
Council to terminate; the office of the DVC (Administration) authorized the
issuance of Exhibit C6, and the 'Staff Disciplinary Committee' is unlawful.
They relied on the case of Ibrahim
v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (PART 584) 1@32 D-E, the Supreme Court per IGUH
JSC held that, “once they step outside the bounds of their public authority and
are acting outside the colour of their office or employment or outside their
statutory or constitutional duty, they automatically lose protection of that
Law."
13. The
Defendant in response to the arguments of the Claimant in opposition to the
preliminary objection, stated that it was the Vice Chancellor of the Applicant
who suspended the Respondent as seen in exhibit A which is the written order of
the Vice Chancellor suspending the Respondent in the Report of the Disciplinary
Committee dated 12th June 2013; specifically, paragraph 6.1.9 on page 24 of the
Report. The Respondent's appointment with the Applicant was terminated by the
Council of the University vide a letter of termination dated 6th December 2013(Exhibit
B), and that there is nothing in the Respondent's exhibits attached to the
Statement of Facts that shows or suggests that it was not the Council that
terminated the appointment of the Claimant.
The Defendant argues that the Claimant centred his opposition on his
position that the suspension and termination were unconstitutional and illegal
and therefore constitute an exception to the application of Section 2 of POPA. The Defendant replied that the law is
settled that an action will be statute barred where it is instituted after the
expiration of the statutory period. They
relied on the case of Anyanwu & Ors V. Nigerian Security Printing &
Minting Plc (2018) LPELR-49773(CA); Egbe v. Adefarasin (1987) 1 NWLR
Pt. 47 p.1. That the Claimant’s cause
of action arose when his appointment was terminated on 6th December 2013. The
suit was instituted on 24th December 2019, over 7 years after the termination.
That the Respondent relied on the case of National Revenue Mobilization Allocation and Fiscal Commission V. Johnson (2019) 2 NWLR (Part 1656) 247 @270 E-F,
where the Supreme Court stated that Section 2(a) of the Act does not apply to
cases of contract of service. However, the Claimant’s complaint is clearly a
complaint against the performance of the official acts of the Defendant through
its officers, alleging that the officers did not follow the provisions of
Section 14 of the NOUN Act, and that a careful reading of the Claimant’s claim
will show that the authority cited does not apply to this case. The Defendant argues that the affidavit
evidence before the Court is that the Claimant was suspended by the Vice
Chancellor’ referring to Paragraph 6.1.9 on page 24 of Exhibit A - the minute
of the Vice Chancellor; and the letter of suspension merely conveyed the
decision. That, it is very clear on the
face of Exhibit C, the letter of suspension, that the Office of the Registrar
did not authorize the Claimant's suspension. The Office of the Registrar only
issued Exhibit C to convey the decision of the Vice Chancellor, and that the
same is applicable to the termination which at Exhibit B clearly states:
"The Vice-Chancellor on behalf of the Governing Council has directed that
your appointment with the University be terminated." Further, that a Claimant
who alleges that a public officer did not act within the scope of his powers, has
the burden to prove lack of authority, bad faith and want of semblance of legal
justification; which the Claimant has failed to do. Referring to Hassan v.
Aliyu (Supra) at p.591. paras B-D the Defendant argues that the Claimant has
not adduced evidence of bad faith or lack of legal semblance of legal
justification as Exhibits B and C are unchallenged and uncontradicted evidence.
14. On the substantive suit, the raised a sole
issue for determination as;
·
Whether
the evidence before the Court showed that the suspension and subsequent
termination of the Claimant's employment by the Defendant was done in
accordance with the relevant section of the National Open University Act Cap
N63 LFN, 2004.
The Defendant argued that
it is not in dispute between the
parties that the Vice-Chancellor has power under Section 14 of the NOUN Act to
suspend the Claimant for misconduct. The Claimant admitted this in paragraph
15(e) of his statement of facts. It is trite law that once a fact is admitted,
it requires no further proof. They relied on the case of Steven Omo Ebueka
vs. Sunmola Amola (1988) 2 NWLR (PT. 75) 128, Okoya vs. Santilli (1994) 4 NWLR
(PT. 338) 256 @ 316. The Claimant admitted that he appeared before the
Staff Disciplinary Committee and denied the allegations. He was heard. That in
the case of Ajewole vs. Adewole
& Anor (2023)
LPELR-60436(CA) (Pp. 44-45 paras. B), the Court held that fair hearing
simply means fair trial, that is, both sides to the dispute must be given equal
opportunity to present their respective cases.
The Vice Chancellor is empowered by the University Establishment Act to
set up the Disciplinary Committee. Section 7(2) of the Act states that the
Vice-Chancellor shall have the general function, in addition to any other functions
conferred on him, of directing the activities of the University and shall be
the Chief Executive and Chief Academic Officer.
The Vice Chancellor's minute at paragraph 6.1.9 of page 24 of Exhibit D4
clearly wrote "suspend him." Neither the Registrar nor the Principal
Assistant Registrar exercised the power of the Vice Chancellor to suspend the
Claimant.
15. The
Defendant referred to Section 14(1) of the National Open University Act which provides:
(1): - 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 technical staff of
the University should be removed from his office or employment on the ground of
misconduct, the Council shall- (a) give notice of those reasons to the person
in question; (b) afford him an opportunity of making representations in person
on the matter to the Council; and, (c) if he or any three members of the
Council so request... make arrangements for a Joint Committee of the Council
and the Senate to investigate the matter."
The Defendant argues that it complied with Section
14(1) as the Claimant was informed on 6th September 2013 vide a letter of the
need for him to appear and defend himself on 9th September 2013. The Claimant
had two clear days to prepare his defence. Exhibit C6 clearly stated:
"Following your suspension from the Service of the National Open
University of Nigeria, management has set up a Disciplinary Committee to
investigate the alleged acts of misconduct levelled against you." Furthermore, the Claimant admitted in
paragraph 16(d) of his statement of fact that he never elected to exercise the
right conferred on him under Section 14(1)(c) of the Act, thus the Joint
Committee of the Council and the Senate had no role to play. Further, that the Claimant during
cross-examination admitted that "as written in Exhibit C7, it was the
Vice-Chancellor on behalf of Council that authorized my termination." It
is settled law that where a person gives evidence against his interest, it is
admissible as evidence against him - Artra Industries Nigeria Ltd v. MBCI (1998)
4 NWLR (PT. 456) 357 @ 408 S.C. Further,
that Exhibit C7 clearly shows that the termination was directed by the
Governing Council and the Office of the Registrar and the Assistant Registrar
only acted in their official capacity to communicate the decision of the
Council. The Claimant confirmed during cross-examination that the Office of the
Registrar is the Office responsible for issuing official communication between
the University, staff and students. The
Defendant's witness evidence that the Office of the Registrar issued the letter
to convey the decision of the Council was not challenged and remains
unchallenged. See Zakariya vs. Mohammed (2022) LPELR-57505 (C.A),
Olorundare SAN v. Minister of FCT & Ors (2022) LPELR-58132 (C.A).
The Defendant submits that by Section 14(4)(c) of the Act, the Claimant is not
entitled to any emoluments, the Council having taken the decision to terminate
his employment after his period of suspension. The Claimant's employment having
been terminated in accordance with law, he is not entitled to any promotion,
salary, allowances, bonuses, remunerations, statutory contributions or any
other benefits. The Defendant submits that the Claimant is not entitled to any
of the claims and urges the Court to dismiss the suit with substantial cost.
16. The Claimant raised two issues for
determination as follows:
1.
Whether
the suspension and eventual termination of the Claimant's employment by the
Defendant was lawful and valid having regard to the facts and evidence and the
mandatory statutory procedure under Section 14 of the National Open University
Act and the Rules of Natural Justice.
2.
Whether
from the state of pleadings and totality of evidence, the Claimant proved his
case to be entitled to the reliefs sought.
17. Issue one - Whether the suspension and eventual termination of
the Claimant's employment by the Defendant was lawful and valid having regard
to the facts and evidence and the mandatory statutory procedure under Section
14 of the National Open University Act and the Rules of Natural Justice. The Claimant argued that the Defendant
attempted to show that Council could delegate power to terminate to the Vice
Chancellor, which would be a violation of the governing statute; but that the
Defendant failed to see that there is no case before the Court on unlawful
employment but on unlawful suspension and termination. On the validity of the Claimant's suspension; the Claimant argues
that the power to suspend a staff is statutorily vested in the
Vice-Chancellor and the Council. The Claimant referred to section 14(2) and (3)
of the NOUN Act provides, which provides that:
(2) The Vice-Chancellor may, in a
case of misconduct by a member of the staff which in the opinion of the
Vice-Chancellor is prejudicial to the interest of the University, suspend such
member and any such suspension shall forthwith be reported to the Council.
(3) For good cause, any member of staff may be
suspended from his duties or his appointment may be terminated by
Council..."
The Claimant argues that Exhibit C5 was authorized
by the office of the Registrar and issued by the Principal Assistant Registrar
(HR/SS) for the Registrar, contrary to the mandatory provisions of the Act. The
Claimant argues that where the words used in a statute are clear, no other
interpretation should be read to it. See Adelaja v Oguntayo & Ors (2000)
LPELR-6908 (CA) @ 29 A - C. That the Act does not contemplate that the
Vice-Chancellor should set up a Disciplinary Committee to investigate a staff
before suspension and the power to suspend cannot be exercised by the
Registrar. There is nothing in Exhibit C5 to show that it was issued by the
appropriate authority named by the Act.
The Claimant submits that the maxim delegatus non potest
delegare applies.
18. On the termination, the Claimant argues that Section 14(1) of the Act sets the procedure. The
Council is first required to give to the Claimant notice of the reasons for believing
that he committed misconduct. The Council then affords him the opportunity to
defend himself before the Council. It is the Council that hears the matter, not
the Vice Chancellor or his "Staff Disciplinary Committee". The
Claimant states that when the DW was asked the question if it was the Council
that served the Claimant the notice, he responded that he did not know. The Claimant argues that the law takes
service seriously where required. See Kisari Inv. Ltd. V. La-Terminal
Co. Ltd. (2001) 16 NWLR (Pt. 739) 381 @ 403 B - C; Hon. Mike Balonwu v.
Peter Obi (2007) 5 NWLR (Pt. 1028) 488 @ 539 -- 540. That Exhibit C6
was issued by the Secretary, "Staff Disciplinary Committee". It
failed to state the reasons for the invitation to allow the Claimant adequate
time to prepare. The Claimant was informed on Friday 6th September 2013 to
appear on Monday 9th September 2013. The
Claimant relied on the case of Board
of Management, FMC. Makurdi v Abakume (2016) 10 NWLR (PART 1521) 536 @ 575 E - F, that non-judicial
bodies are bound to give persons fair hearing before reaching a decision
affecting their rights. That only the
Council is authorized to set up the JCCS to investigate allegations against a
staff, per Section 14(1)(c)(i) of the Act.
19. Issue
two - Whether from the state of pleadings
and totality of evidence, the Claimant proved his case to be entitled to the
reliefs sought. The Claimant submits
that he has established that the suspension and termination did not comply with
statutory provisions and were conducted in violation of natural justice and
constitutional right protected by Section 36(1) CFRN 1999. That, Exhibits C8, C9, C10 and C11 are
letters written by the Claimant appealing for redress and the Defendant did not
respond. The Claimant submits that he
was an Assistant Registrar and ought to have promotions every three years. By
the 'Schemes of Service 2003', he would have attained Senior Assistant Registrar
in 2016 and Principal Assistant Registrar in 2019. That the Defendant promotes
its staff every three years and the Claimant has been promoted twice in 2010
and 2013 having passed his promotion exams before his termination. See EXHIBITS
C15 and C16; therefore, where an employment with statutory flavour is
terminated without compliance with laid-down statutory procedure, the Claimant
would be entitled to reinstatement and payment of backlog of salaries and
allowances.
20. In response to the Claimant’s submissions,
the Defendant replied that on Appointment Validity, the burden is on the Claimant to establish that
there was a delegation of power by the Council. He did not plead and did not tender in
evidence any instrument of delegation. That the Claimant having pleaded that
"management" is unknown to the University Act, he cannot by his final
address argue that the power of the Council to appoint "is expressly
delegated to the University Management", and that a party is not allowed
to approbate and reprobate. On the
issue of suspension, the Vice Chancellor's minute at paragraph 6.1.9 of
page 24 of Exhibit D6 clearly shows that the Vice Chancellor suspended the
Claimant and that address of Counsel cannot substitute for evidence on record.
See Ogunbiyi v. Adigun (2013) 5 NWLR (Pt. 1345) 449; Anita v.
Okemini (2001) 9 NWLR (Pt. 718) 153; Ike v. Ochei (2001) 8 NWLR (Pt.
715) 421; Aderemi v. Ogunleye (1999) 8 NWLR (Pt. 615) 44. On the
issue of fair hearing, the Claimant having admitted that he was heard
and he defended himself, this issue is no longer open to argument. The Defendant submits that the Supreme
Court in Bamgboye v. University of Ilorin
(1999) 10 NWLR (Pt. 622) 290 held that where there is substantial
compliance with disciplinary procedures, such termination will be valid. Also Iderima v. Rivers State Civil Service Commission
(2005) 16 NWLR (Pt. 951) 378. On the issue of the Vice Chancellor's powers,
the Defendant replied that the Vice Chancellor has inherent powers to
set up internal committees for disciplinary and fact-finding purposes. See Uwazuruonye
v. Governing Council of Imo Poly (2013) 3 NWLR (Pt. 1342) 347. On
the issue of the Registrar's Role, the Defendant replied that the
Registrar, as the statutory officer and head of administration, is the proper
officer to communicate the decision of the Council or Vice-Chancellor.
DECISION
21. The Claimant was employed by the Defendant as an
Administrative Officer II by letter dated 19 December 2006 and his appointment
was confirmed on 3 February 2009. He served in various administrative
capacities and was commended twice for diligence and commitment. He was also
promoted in 2010 and 2013. The Claimant's complaint is that he was first orally
invited before a panel concerning incidents at the Makurdi Study Centre,
although he never served there. He was thereafter suspended by letter dated 6
August 2013. Later, he was invited by letter dated 6 September 2013 to appear
before another panel concerning matters tied to the Uyo Study Centre. His
appointment was eventually terminated by letter dated 6 December 2013, which he
says was brought to him on 31 December 2013. The Claimant contends that:
22. The Defendant's case is that:
23. Having considered the pleadings,
evidence and submissions of counsel, I find that the following issues arise for
determination:
1. Whether this suit is statute-barred
by virtue of section 2(a) of the Public Officers Protection Act.
2. If the suit is competent, whether
the suspension and termination of the Claimant's employment were carried out in
accordance with section 14 of the National Open University Act and the rules of
fair hearing.
3. Whether the Claimant is entitled to
the reliefs sought.
24. Issue One - Whether this
suit is statute-barred by virtue of section 2(a) of the Public Officers
Protection Act.
The Defendant's
preliminary objection is that the action is statute-barred because the
Claimant's appointment was terminated on 6 December 2013 while this action was
instituted on 24 December 2019, more than six years later.
The Claimant's answer is twofold:
25. The Claimant also
referred to the case of National Revenue Mobilization Allocation and Fiscal Commission v.
Ajibola Johnson (2019) 2 NWLR
(Pt. 1656) 247, to assert that section 2(a) of the Public Officers
Protection Act does not apply to contracts of service. Taking the date
stated by the Claimant as the day he became aware of his termination; 31st
December 2013, and the date this suit was commenced; 24th December 2019, that
will be almost six years. The argument
of the Claimant is that the Defendant is not protected by Section 2(a) of the
Act because, according to the Claimant, where a public officer acts outside the
scope of his office or outside his statutory or constitutional duty or bounds,
he is not covered by the provisions of Section 2(a) of the Act; citing Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 and Ibrahim
v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1, in support of the proposition
that the protection of the Act is unavailable where a public officer acts
outside statutory authority. I have considered the two cases cited by the
Claimant in this assertion. In Hassan
v. Aliyu, the Supreme Court restated that:
By virtue of section 2(a) of the Public Officers Protection
Act, where any action, prosecution or other proceedings is commenced against
any person for any act done in pursuance of execution or intended execution of
any Act or Law or of any public duty or authority or in respect of any alleged
neglect or default in the execution of any Act, Law, duty or authority, such
action, prosecution, or proceedings shall not lie or be instituted unless it is
commenced within three months next after the act, neglect or default complained
of or in the case of continuance of damage or injury, within three months next
after the ceasing thereof; provided that if the action, prosecution or
proceedings be at the instance of any person for cause arising while such
person was a convict prisoner, it may be commenced within three months after
the discharge of such person from the prison.
At page 621, paras. E- G, the Supreme Court while referring
to Ibrahim v, JSC stated that:
By section 2(a) of the Public Officers Protection Act, it is
well established that the Act gives full protection or cover to all public
officers or persons engaged in the execution of public duties who at all
material times acted within the confines of their public authority and are not
acting outside their statutory or constitutional duty. A public officer can be
sued outside the limitation period of three months if, at all times material to
the commission of the act complained of, he was acting outside the colour or
scope of his office or outside his statutory or constitutional duty. Where he
acted within the colour or scope of his office, he can only lose protection of
the limitation law if he is sued within three months. [Ibrahim v. J.S.C.
Kaduna State (1998) 14 NWLR (Pt. 584) 1 referred to.] (P. 621, paras. E- G).
26.
This is the dictum relied on by the Claimant in alleging that section
2(a) of the POPA does not apply in this case.
It is indeed the place of the Claimant to show how this exemption
applies in this case and not by mere saying so.
The Claimant’s complaint is clearly a complaint against the performance
of the official acts of the Applicant through its officers i.e. the Vice Chancellor, the Deputy Vice
Chancellor, Registrar, Deputy Registrar and the Principal Assistant Registrar.
His allegation is that these officers in performing their official acts did not
follow the provisions of Section 14 of the National Open University of Nigeria
Act 1983 as amended. The Claimant has not alleged that any of the officers was
not performing in the capacity of his office.
His complaint is non-compliance with procedure set down by Section 14 of
the NOUN Act. In the circumstance, I
find that the exception proffered by the Claimant does not apply to this case.
27. Further, and to the reference by the Claimant
to the case of National Revenue
Mobilization Allocation and Fiscal Commission V. Johnson (Supra), on
the 3rd of December, 2025, this Court, in the case of Dosunmo
Akinola George v. Tai Solarin University of Education, Ijagun. Ogun State &
Anor Suit No.: NICN/LA/487/2016 while ruling on the Claimant’s reliance on
the case of NRMAFC v. Johnson
to argue that Statutes of Limitation do not apply to contracts of employment,
noted that:
Counsel was not wrong that the above cited cases had ruled
that the POPA does not apply to employment contracts, but the terrain related
to limitation laws is constantly shifting as dictated by the Supreme Court, the
answer to that question posed has also shifted, the Supreme Court in the case
of Chukwuka Okoronkwo v. INEC (2025) NWLR(Pt. 1991) 131 held that any
action commenced outside the time stipulated by the POPA is statute barred(PP
149- 150) paras F-B, PP 159-157 paras H-E and Pp 159 paras C-G), the Court also
held that the Claimants cause of action accrued as at when he was suspended and
that suspension does not amount to continued injury as that had created an
enforceable right giving rise to a cause of action (Pp 150 paras D-C, 153 para
C).
23. As stated above,
this Court has had to be oscillating as the Supreme Court decides. For instance, in Mr. Durojaiye Nicholas v.
National Drug Law
Enforcement Agency Suit No.
NICN/LA/387/2018 judgment delivered on 24th September 2025, His
Lordship I. G. Nweneka had to declare the Claimant’s suit, statute barred,
following the Supreme Court decision in Anolam v. The Federal
University of Technology, Owerri & Ors [2025] 5 NWLR [Pt 1984] 651 at
673, 675-676, decided on 17th January 2025 that the Public Officers Protection
Act applies to employment contracts.
That was why in Ohabiko Elvis Harcourt (Suing by his Attorney David
Ademola Saula) v. Nigerian Agip Oil Company Limited Suit No.
NICN/LA/607/2017 Judgment of 3rd April 2025 I held on the issue as
follows:
35. I will like to comment on the Claimant’s
counsel’s submission that the law is now settled that statutes of limitation do
not apply to contracts of employment. I
would say that the law is by no means settled.
It is correct that in National
Revenue Mobilisation Allocation and Fiscal Commission & 2 ors v. Ajibola
Johnson & 10 ors
[2019] 2 NWLR (Pt. 1656) 247 SC, the Supreme Court held that statutes of
limitation do not apply to contracts of employment. Subsequent cases such as Abubakar Abdulrahman v. NNPC [2020] LPELR-55519(SC)
decided on 5 June 2020, Michael Idachaba &
ors v. University of Agriculture Makurdi & 4 ors decided on 15 January
2021 [2021] LPELR-53081(SC), and Philip Ikhanoba Aroyame v. The Governor of Edo State &
anor
decided on 8 April 2022 [2022] LPELR-57819(SC), without reference to National Revenue Mobilisation Allocation
and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors, held that it
applies. In Rector Kwara Poly v. Adefila decided on 2 December
2022 but reported in 2024 [2024] 9 NWLR (Pt. 1944) 529 SC. cited by the
Claimant reversed Abdulrahman, Idachaba
and Aroyame (in
other words, it went back to Ajibola Johnson) when it held that the Public
Officers Protection Act does not apply to employment contracts. However, on the
same 2nd December 2022 that Rector Kwara Poly v. Adefila was decided, Aba v. Board of Directors, NIPOST &
Anor [2022]
LPELR-60634(SC) [2022] LPELR-60634(SC) held that the limitation law applies (in
other words going back to Abdulrahman,
Idachaba and Aroyame). The
Court of Appeal on 17 May 2024 in Oluyoye v. Gov. of Ogun State & Ors [2024] LPELR-62397(CA),
relying on older Supreme Court decisions such as Forestry Research Institute of
Nigeria v. Gold [2007] 11 NWLR (Pt. 1044) 1 SC., held that the Public Officers
(Protection) Law applies to the appellant’s contract of employment in
issue. (See “Conflicting Decisions — Knowingly Made: Endangering the Rule of Law and
Economic Growth”, .A paper presented on 27 August 2024 at one of the
Breakfast Sessions the 2024 Annual General Conference of the Nigerian Bar
Association (NBA-AGC), the theme of which is Pressing Forward — A National
Posture for Rebuilding Nigeria, and which held at the Eko Convention Centre,
Eko Hotel & Suites, Victoria Island, Lagos, By Hon. Justice Benedict Bakwaph KANYIP, PhD, FNIALS, FCTI, FCArb,
President, National Industrial Court of
Nigeria (NICN). Learned Counsel will see
that the issue is anything but settled.
After I had put a full stop on this issue, in this judgment, I
discovered that on the 17th day of January, 2025, the
Supreme Court, in the case of Dr.
Moses U. Anolam v. The Federal University of Technology Owerri (FUTO) & Ors
(2025) LPELR-80027(SC)
held that “the Public Officers' Protection Act is applicable to issues of
employment with statutory flavour such as the employment of the appellant in
the instant case."
24. The current position, based on Dr. Moses
U. Anolam v. The Federal University of Technology Owerri (FUTO) & Ors (2025)
LPELR-80027(SC), and Chukwuka Okoronkwo v. INEC, is that the
Public Officers’ Protection Act, continues to apply to contracts of
service. Now in the instant case, the
Claimant was issued a letter of termination on 6th December 2013 and
received on 31st December 2013 (exhibit C7). The law required that the Claimant commenced
this suit not later than three months from the date the notice of termination
was communicated to him; which the Claimant failed to do. The Claimant commenced this suit on 24th
December 2019, several years beyond the three months period stipulated by the
POPA. This suit is statute barred and
liable to be dismissed. This suit is
hereby dismissed for being statute barred.
25.
This should ordinarily be the end of this judgment, however, assuming
this decision is appealed against and I am found to be wrong in dismissing this
suit for being statute barred, I shall proceed to determine the merit of the
case.
26. Issue Two - Whether the
suspension and termination of the Claimant's employment were carried out in
accordance with section 14 of the National Open University Act and the rules of
fair hearing.
There is no
controversy that the Claimant's employment had statutory flavour. His
appointment was in the employment of a federal university created by statute,
and the applicable procedure for discipline and removal is governed by the
National Open University Act. The relevant provision of the NOUA is section
14. It provides that:
14. Removal and discipline of
academic, administrative and technical staff
(1) 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 technical 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-
(a) give notice of those reasons to
the person in question;
(b) afford him an opportunity of
making representations in person on the matter to the Council; and
(c) if he or any three members of
the Council so request within the period of one month, beginning with the date
of the notice, make arrangements-
(i) for a joint committee of the Council and the Senate to investigate the
matter and to report on it to the Council; and
(ii) for the person in question to
be afforded an opportunity of appearing before and being heard by the
investigating committee with respect to the matter, and if the Council, after
considering the report of the investigating committee, is satisfied that the
person in question should be removed as aforesaid, the Council may so remove
him by an instrument in writing signed on the directions of the Council.
(2) The Vice-Chancellor may, in a
case of misconduct by a member of the staff which in the opinion of the
Vice-Chancellor is prejudicial to the interest of the University, suspend such
member and any such suspension shall forthwith be reported to the Council.
(3) For good cause, any member of
staff may be suspended from his duties or his appointment may be terminated by
Council; and for the purposes of this subsection “good cause” means-
(a) conviction for any offence which
the Council considers to be such as to render the person concerned unfit for
the discharge of the functions of his office; or (b) any physical or mental incapacity which
the Council, after obtaining medical advice, considers to be such as to render
the person concerned unfit to continue to hold his office; or (c) conduct of a scandalous or other
disgraceful nature which the Council considers to be such as to render the
person concerned unfit to hold his
office; or (d) conduct which the Council considers to be such as to constitute
failure or inability of the person concerned to discharge the functions of his
office or to comply with the terms and conditions of his service.
(4) Any person suspended pursuant to
subsection (2) or (3) of this section, shall be on half pay and the Council
shall, before the expiration of a period of three months after the date of
suspension, consider the case against that person and come to a decision as to-
(a) whether to continue such
person’s suspension and if so, on what terms (including the proportion of his
emoluments to be paid to him);
(b) whether to reinstate such person, in which case the Council shall restore
his full emoluments to him with effect from the date of suspension;
(c) whether to terminate the appointment of the person concerned, in which case
such a person shall not be entitled to the proportion of his emoluments
with-held during the period of suspension; or
(d) whether to take such lesser disciplinary action against such person
(including the restoration of such proportion of his emoluments that might have
been withheld), as the Council may determine, and in any case where the
Council, pursuant to this section, decides to continue a person’s suspension or
decides to take further disciplinary action against a person, the Council
shall, before the expiration of a period of three months from such decision,
come to a final determination in respect of the case concerning any such
person. (5) It shall be the duty of the
person by whom an instrument of removal is signed in pursuance of subsection
(I) of this section, to use his best endeavours to cause a copy of the
instrument to be served, as soon as reasonably practicable, on the person to
whom it relates.
(6) Nothing in the foregoing
provisions of this section shall-
(a) apply to any directive given by
the Visitor, in consequence of any visitation; or
(b) prevent the Council from making
regulations for the discipline of other category of workers of the University,
as may be prescribed.
27. On the
suspension, the Claimant
argued that the suspension letter, Exhibit C5, was invalid because it emanated
from the Office of the Registrar and was signed by the Principal Assistant
Registrar, whereas only the Vice-Chancellor or Council had power to suspend. Section 14(2) of the National Open
University Act reproduced above, provides that the Vice-Chancellor
may, in a case of misconduct prejudicial to the interest of the University,
suspend a member of staff, and such suspension shall forthwith be reported to
Council.
The evidence
before the Court shows that Exhibit D4, the Disciplinary Committee Report dated
12 June 2013, contains a minute by the Vice-Chancellor directing that the
Claimant be suspended. The letter Exhibit C5 was then issued through the
Registrar's office to communicate that decision. I am unable to accept the Claimant's
argument that the suspension is invalid merely because the communication came
through the Registrar's office. In the ordinary administrative structure of a
university, the Registrar's office is the channel for communicating official
decisions affecting staff. So long as the decision was in truth that of the
Vice-Chancellor, the mere fact that the letter was signed by an officer in the
Registry for the Registrar does not by itself invalidate the suspension. The Claimant’s
letters of employment, confirmation, promotion and commendation were all
written by the office of the Registrar, even though the Registrar had not made
any of the decision in them. The
Claimant admitted this fact during cross examination, when he stated that:
My complaint is for wrongful termination. Exhibit C1 is the
offer of my appointment signed by the Registrar. It is the Council of the
University that authorized the issuance of the offer letter (Reads paragraph 1
of Exhibit C1). I still say it is the Council that gave approval for my
appointment. The Council delegated the power to the Vice Chancellor to appoint
me. By paragraph 3 (d) either party can terminate the appointment but it has to
be Council and not the Registrar. Exhibit C2 was issued by the Office of the
Registrar. It was a valid document when it was given to me. Yes, both Exhibit
C1 & C2 emanated from the Office of the Registrar. On termination of
appointment No, the law is that it is the Council. Exhibit C5 was also issued
from the Office of the Registrar.
On the evidence before me, I find that the suspension
was authorised by the Vice-Chancellor and only communicated through the
appropriate administrative office. The suspension is therefore not shown to be
invalid.
28. The Claimant's more substantial
complaint is that the process leading to his termination did not comply with
section 14(1) of the Act. I have considered the facts leading to the
termination of the Claimant. The Defendant's case is that the
Vice-Chancellor set up a fact-finding committee, and later a further
disciplinary process in which the Claimant was invited and heard. It says the
Claimant had enough notice by the invitation letter dated 6 September 2013 and
that he appeared before the committee. I have gone through Exhibit C8 and C9, the
Claimant’s appeal letter for a review of his termination. There, he recounted that after the
investigative panel which indicted him, which led to his suspension, he was
called on phone on the 6th of September 2013 to appear before a Disciplinary
Panel set up by the Vice Chancellor sitting on 9th September 2013. Exhibit C6 is dated the same 6th September
the Claimant was called on phone. There
is no indication on its face or on any other document, that the Claimant
received it earlier than the 9th of September when he faced the panel. Section 14(1) of the NOUN Act requires more than just any form of hearing
before any panel. What section 14(1) mandates is a process that is anchored in
the Council, because it is the Council that has the statutory power to remove.
29. In L.G.C. Ltd. v. Stanbic IBTC Bank Plc (No.2) (2022) 14 NWLR (Pt. 1851) 551, the Supreme Court stated
that fair hearing requires that trial must be conducted according to all
applicable legal rules with a view to ensuring that justice is done to all
parties before the court. Any proceedings conducted in breach of the right to
fair hearing are a nullity and liable to be set aside. Where the principle of
natural justice is violated, it does not matter whether if the proper thing had
been done, the decision would have been the same. The proceedings would still
be null and void. Also, in the case of J.S.C.,
Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1, the Supreme Court stated:
The interpretation that has been
given to section 36(1) of the Constitution of the Federal Republic of Nigeria,
1999 or the matter of fair hearing is that apart from the courts, other
adjudicating bodies like tribunals, though not expected to act fully like a
court of law, are enjoined in their hearing of matters to act in good faith and
fairly listen to both sides before deciding. In that regard, such bodies even
if administrative must always give the parties before them the opportunity to
controvert, correct or contradict any relevant statement prejudicial to them.
The requirement includes that an affected party or parties must be given his
right to cross-examine any witness before the adjudicating body. It follows
therefore that when an administrative or domestic tribunal is to determine
whether an officer is guilty of misconduct or of a breach of the regulations,
then a “lis inter partes” arises and throws up the necessity for a
hearing before a decision by the tribunal. In such case, the tribunal is acting
judicially, and the principles of fair hearing binding on judicial bodies bind
such administrative or domestic bodies. In this case, the respondent was
accused of forgery and mismanagement of an estate’s fund. But the 1st appellant
which acted quasi-judicially on the allegations against the respondent did not
grant the respondent a right of audience and the opportunity to confront her
accusers. In the circumstance, the appellant denied the respondent her right to
fair hearing. Consequently, the trial court was wrong when it struck out the
respondent’s application for certiorari. The decision of the Court of
Appeal, which quashed the proceedings and decision of the 1st appellant was
correct.
30. The evidence shows that the Claimant in this
case was called on phone and informed of the invitation to appear before the
panel trying him for misconduct. Https://www.Calendar-365.Com/Calendar/2013/September.Html shows that 6th September 2013 was a Friday and 9th
September 2013 was a Monday. It was when
he reported on Monday 9th September 2013 that he was handed over the letter of
invitation (Exhibit C6). In other words, Claimant did not
know the case he was coming to face, before hand. Exhibit D5 (Report of the Disciplinary
Committee Investigating the Claimant) has no record of the issuance of notice
to the Claimant prior to their sitting or confrontation of the allegations
against him.
31. Further, the text of section 14 (1)of the
NOUN Act provides that 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 technical staff of the University, other than the Vice-Chancellor,
should be removed from his office or employment on the ground of misconduct as in this case, the Council or
any person or authority acting on their behalf, is to give notice of those reasons to the
person in question. In this case, I am of the view that serving
the Claimant with a Notice at the venue of the investigative panel, falls short
of any reasonable notice. By section
14(1)(b), the person is to be afforded an opportunity of making representations in person on
the matter to the Council. In this case, no reasonable opportunity of
making representation can occur in the absence of Notice. By paragraph (c); if the Claimant or any three members of the Council so request within the period of one
month, beginning with the date of the notice, arrangement is to be made for a joint committee of the Council and the Senate to investigate the matter and to
report on it to the Council. This paragraph suggests a minimum Notice of
one month given to the staff being investigated. In my view, the Claimant was
not afforded adequate opportunity to defend the allegations against him,
leading to a breach of his right to fair hearing, and a breach of section 14 of
the NOUN Act. In the circumstance, the
procedure leading to the Claimant’s termination is tainted with breach of fair
hearing and unlawfulness. That breach
and unlawfulness render the
termination liable to be set aside. As stated in L.G.C. Ltd. v. Stanbic IBTC Bank Plc (No.2) (2022) 14 NWLR (Pt. 1851) 551, “any proceedings conducted
in breach of the right to fair hearing are a nullity and liable to be set
aside. Where the principle of natural justice is violated, it does not matter
whether if the proper thing had been done, the decision would have been the
same”.
32. Issue Three - Whether the
Claimant is entitled to the reliefs sought. Having found that the Claimant's
employment enjoys statutory flavour and that the termination was not carried
out in accordance with the governing statute, the normal consequence is that
the termination is null, void and of no effect, and the employee is entitled to
reinstatement.
Accordingly:
33. THE JUDGMENT OF
THIS COURT IS THAT THIS SUIT IS STATUTE BARRED AND IS HEREBY DISMISSED.
Judgment is entered accordingly.
--------------------------------------------
Hon. Justice (Prof) Elizabeth
A. Oji