IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI

 

DATE: MONDAY 19TH OCTOBER 2026           SUIT NO. NICN/LA/624/2019

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

 

2.  In response to the Claims, Defendant filed its Statement of Defence dated 15th day of February, 2022 with list of Defendant’s witness and Defendant’s witness statement on oath deposed to by Mr. John Ubaji.  The Claimant filed a Reply to the Statement of Defence dated 17th March 2022.  Trial commenced in the suit on 29th day of March, 2023.  The Claimant gave evidence for himself as CW, by adopting his witness statement on oath deposed to on the 24th day of November, 2021 and 17th day of March 2022 respectively. The Claimant was thereafter cross-examined on 8th day of 7th day February, 2024. During the examination in chief, the Claimant tendered in evidence 16 Exhibit as follows:

 

(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

 

3.  The Defendant opened its case on 17th day of April, 2024, through its witness Mr. John Ubaji (DW1) who adopted his statement on oath deposed to on 15th February, 2022 and was thereafter cross examined. During the examination in chief the witness tendered the following documents:

(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:

  • the Vice-Chancellor had no power to set up the Staff Disciplinary Committee that investigated him;
  • the Registrar's office had no authority to issue the suspension and termination letters in the manner done;
  • the Governing Council did not itself issue notice of reasons, afford him hearing, or constitute the Joint Committee of Council and Senate contemplated by section 14(1)(c) of the Act;
  • the process adopted violated section 14 of the National Open University Act and the rules of natural justice.

22.  The Defendant's case is that:

  • the suit is statute-barred by section 2(a) of the Public Officers Protection Act because the cause of action accrued in December 2013 while the suit was filed in December 2019;
  • the Vice-Chancellor validly suspended the Claimant and merely used the Registrar's office to convey the decision;
  • the Staff Disciplinary Committee was a fact-finding body properly set up by the Vice-Chancellor;
  • the Governing Council had authorised the Vice-Chancellor to act on its behalf in terminating the appointment of staff found guilty of misconduct;
  • the Claimant was invited, appeared before the disciplinary committee, and was heard;
  • the termination was therefore lawful.

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:

  • first, that the termination letter only came to his knowledge on 31 December 2013; and
  • second, that the Defendant's officers acted outside the colour of their office and outside their statutory powers, thereby bringing the case within the recognised exceptions to the Public Officers Protection Act.

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:

  • Relief (b) succeeds.
  • Relief (d) succeeds.
  • Reliefs (e) and (f), seeking reinstatement and restoration of rank/status, also succeed.
  • On relief (g) for arrears of salaries and allowances, the Claimant is entitled to be restored to the position he would have been in had the unlawful termination not occurred. However, as I have not nullified the suspension itself, the claim for salaries for the period of suspension from 6 August 2013 to 6 December 2013 cannot be granted automatically in the broad terms sought. The Defendant shall compute and pay all salaries, allowances and entitlements due to the Claimant from the date of the unlawful termination, 6 December 2013, until his reinstatement.
  • Relief (h) also succeeds to the extent that the Defendant shall restore and regularize all statutory contributions and employment-related benefits due to the Claimant consequent upon the nullification of the termination.

33.  THE JUDGMENT OF THIS COURT IS THAT THIS SUIT IS STATUTE BARRED AND IS HEREBY DISMISSED.

Judgment is entered accordingly.

 

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Hon. Justice (Prof) Elizabeth A. Oji