Dr. Tunde Bamgboye V. University Of Ilorin & Anor (1999)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
This appeal which emanates from the Court of Appeal, Kaduna Division (Coram: Aikawa, Ogundere and Okunola, J.J.C.A.) revolves, in the main, around the interpretation of Section 15 of the University of Ilorin Act, 1979 (now Cap. 455, Laws of the Federation of Nigeria, 1900). The plaintiff, now appellant, who was a Reader in the 1st defendant/respondent’s Department of Chemistry, had by a writ of summons on January 27, 1989 commenced an action against both defendants/respondents in the High Court of Kwara State (Coram: Oyeyipo, C.J.), challenging the legality and validity of his dismissal from 1st respondent’s establishment. The appellant sought in the alternative an order for re-instatement.
Pleadings were ordered, delivered and exchanged and the learned Chief Judge, after considering the evidence and appraising the facts, found for the respondents and dismissed the appellant’s case. Being dissatisfied with the said decision the appellant appealed to the Court of Appeal, holden in Kaduna. The Court of Appeal (hereinafter referred to as the court below) after considering all the issues raised in the parties’ Briefs and in the oral arguments before the court, also dismissed the appellant’s appeal by affirming the decision of the trial court. The appellant being further aggrieved with the said decision has now further appealed to this Court upon a Notice of Appeal containing twenty-three grounds dated 20th June, 1991 and from which thirteen prolix issues were proffered as arising for determination.
The facts of the case, as made out on appellant’s behalf are briefly as follows:-
The appellant had entered the employment of the 1st respondent in 1976 as a Lecturer Grade II and his appointment was confirmed with effect from May, 1981. In February, 1987, whilst the appellant was on Sabbatical Leave in the United Kingdom, the 1st Semester examination of the 1st respondent was conducted in his absence. In March, 1987, the appellant whilst enjoying a brief Easter Vacation in Nigeria, was invited to appear before a three-man Departmental Investigation Panel headed by Professor M. Adeniran Mesubi to probe irregularities observed in the 1987 February examination. At the conclusion of its investigation, the Mesubi Panel submitted its Report to the Dean of the Faculty of Science, the latter who proceeded to set up a Faculty Panel to investigate the alleged examination malpractices. This Panel which was headed by Professor D. K. Bamgboye, for its part took evidence from students and Staff alike at a time the appellant was away in the United Kingdom. The Bamgboye Panel was later re-constituted under the Chairmanship of Professor S. O. Oyewole to which the appellant, on invitation, made a written submission. As a result of the Report of the Investigation Panels, by a letter dated June 22, 1988, the appellant was invited by a letter – Exhibit P1 to appear before the Senior Staff Disciplinary and Appeals Committee (referred to shortly as SSD & AC) to defend himself against specific charges of examination malpractices. By another letter of the same date vide Exhibit P2, the appellant was suspended from duty pending the disposal of the charges against him. Although the appellant alleged he was denied the services of a counsel, he nevertheless asserted that he appeared and defended himself before the SSD & AC chaired by the Vice Chancellor Professor Adeoye Adeniyi. Consequent upon the findings of the SSD & AC the 2nd respondent by a letter dated August 17, 1988 (vide Exhibit P3) informed the appellant that he had found not guilty on charges of examination malpractices and accordingly his suspension was revoked and his full emoluments were restored.
Thereafter, on September 5, 1988 the appellant wrote a letter vide Exhibit P4, to the 1st respondent seeking a transfer of his services to Ondo State University, Ado Ekiti where he had been offered the post of Professor in the Department of Chemistry. However, on November 18, 1988 by a letter of the same date, namely Exhibit P6, the 2nd respondent wrote to the appellant asking him to appear before the Governing council of the 1st respondent to defend himself ostensibly over the same charges from which he had been exonerated by the SSD & AC and that this he did on November 21, 1988.
The Governing Council according to the appellant, consisted of:-
- Prof. Adeoye Adeniyi – Vice Chancellor and Chairman of
the SSD & AC.
- Prof. Mesubi – Chairman of the Mesubi Panel
- Prof. Bamgboye – Chairman of Bamgboye Panel
- Prof. Abiri – Member of the SSD & AC
- Alhaji Bukar – Member of the SSD & AC
- Alhaji Kigo – Member of the SSD & AC.
The presence of Prof. Mesubi and Alhaji Bukar was denied by the respondents. So also was the allegation that the appellant made that he was made to face a hostile Governing Council with his appearance lasting between 20 to 25 minutes. The appellant further alleged that he was shouted down when he objected to the presence of Professors Mesubi and Bamgboye at the Governing Council proceedings. A few hours later on November 22, 1988, the appellant alleged that he was dismissed by a letter of the same date i.e. Exhibit P7, from the services of the 1st respondent and signed by the 2nd respondent.
For the respondents, the facts of the case were stated as follows:-
The appellant was a Reader in Chemistry in the Faculty of Science in 1st respondent’s establishment. He had a close friend, one Professor Yoloye, then the Dean of the Faculty prior to his going away on the year sabbatical leave. In 1988, Professor Mesubi who was appointed a new Reader during the appellant’s sabbatical leave was looking for the Chemistry examination scripts of two female students. Miss Maduneme and Miss Kuye and he had to break open the door of the office of the appellant as the key to the office was not found. In the appellant’s office, two Chemistry examination scripts belonging to Miss Maduneme were found, one written under examination conditions and the other written at leisure. While on the first script several markings from low to high marks appeared, on the second script high marks appeared. The script of Miss Kuye was also discovered in appellant’s office with alteration of examination marks from low to high marks. Miss Kuye had in her custody a key to the appellant’s office.
Following the discovery of the said examination scripts from the appellant’s office, charges of examination malpractices herein before alluded to, were laid against the appellant first before the Departmental Investigation Panel and second, before the Faculty Investigating Panel, which issued the Reports tendered as Exhibit D1 and D2 respectively. On receipt of Exhibit D2, a third Panel was instituted to investigate an aspect requiring further investigation, and Exhibit D3 is its Report. The appellant personally appeared before these three Panels and made representations and of all three Panels two exonerated him on two charges, one found him blamable on the third charge. It is worthy of note, however, that these three Investigation Panels did not see the examination scripts Nos. 81/2731 and 84/7595 of the two female candidates mentioned above as they were not produced before them.
Upon receipt of Exhibit D3, the 2nd respondent wrote the appellant Exhibit P1 inviting him to appear before the SSD & AC chaired by the Vice-Chancellor, Professor Adeoye Adeniyi, to defend himself against the three charges of examination malpractices. On the same date, the 2nd respondent wrote another letter (Exhibit P2), suspending the appellant from duty pending the determination or the charges against him. The appellant appeared before the SSD & AC and defended himself, following which the 2nd respondent wrote Exhibit P3 revoking the suspension in Exhibit P2 and re-instating him.
By Exhibit P6 dated 18th November, 1988 the appellant was requested to appear before 1st respondent’s Governing Council to defend himself against the three charges of examination malpractices. He appeared before the Council on 21st November, 1988, made representations and submitted a document in his defence. The Council had a short adjournment and asked the Dean to make the two examination scripts available to the appellant. The two scripts were made available to the appellant and after studying: them he defends himself on them i.e. over the other charges when the Council resumed sitting.
Exhibit D4 represents the minutes of the Council which in its deliberation shortly thereafter found the appellant guilty of examination malpractices. On the directive of the Council, the 2nd respondent wrote Exhibit P7 dismissing the appellant from the services of the 1st respondent. Whereupon, the appellant invoked the purport of Section 15 of the University of Ilorin Act (ibid) to institute the action in the High Court of Kwara State against the 1st and 2nd respondents that has led to the appeal herein. It is pertinent to point out from the onset that the section confers on the University staff a “special status” over and above the normal contractual relationship of master and servant. Consequently, the only way to terminate such a contract of service with ‘statutory flavour’ is to adhere strictly to the procedure laid down in the statute i.e. in the case in hand, the University of Ilorin Act (ibid). See Olaniyan v. University of Lagos. (No,2) (1985) 2 NWLR (Pt. 9) 599; Shitta-Bey v. Federal Public Service Commission (1988) 1 SC. 41 at 56 and Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25.
The trial High Court (per Oyeyipo. C.J.) in a well-considered judgment in which he resolved all six issues formulated on behalf of the appellant against him, dismissed his case. The appellant appealed to the Court of Appeal, Kaduna Division where he also lost.
He has further appealed to this Court where he has filed 23 grounds in all contained in a Notice of Appeal from which emerged thirteen issues attacking the decision of the Court of Appeal. The parties subsequently exchanged Briefs of Argument. The thirteen appellant’s prolix issues to which the Respondents responded by filing two issues incorporating a preliminary objection to all the 23 grounds of appeal, may be considered under the following three compartments, to wit:
“ISSUE NO. 1
Whether the Learned Justices of the Court of Appeal were right in their view that the guilt of the Appellant on charges of Exanimation Malpractices was justifiable in the trial court and going further to affirm that guilt. And further, whether the Learned Justices of the Court of Appeal erred in holding that the issues of Criminal Jurisdiction of the Governing Council did not arise in the High Court or Court of Appeal. (Grounds 1, 2.4,5 & 8).
ISSUE NO.2
Whether the 1st Respondent and its agencies/agents gave the Appellant fair hearing; to what extent did it delegate its powers to those agencies/agents and how binding were the perverse/ultra vires decision against the Appellant arrived at {Grounds 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, & 22),”
The two issues submitted on behalf of the Respondents as arising for our determination are as follows:-
“(i) Whether or not all the 23 grounds of Appeal and the issues (numbered 13 in all) based on them and consequently the appeal should be struck out on the ground of incompetence as the Supreme Court has no jurisdiction to entertain them since the Appellant did not obtain leave from the Court of Appeal nor that of the Supreme Court to appeal to the Supreme Court on grounds of fact or mixed law and fact pursuant to Section 213 (3) of the Constitution of the Federal Republic of Nigeria (Enactment) Act Cap. 62 Laws of the Federation of Nigeria (1990) and Section 27(2) of the Supreme Court Act Cap 424 Laws of the Federation of Nigeria (1990).
(ii) Alternatively to issue (i) above, whether or not the Court of Appeal was correct in dismissing the Appellant’s Appeal by holding that the 2nd Respondent who wrote Exhibit P3 which the lower court held to be premature and invalid was not an agent of the 1st Defendant/Respondent and that SSD & AC, (whether or not a delegate of the 1st Defendant/Respondent) could not bind the Council and that Exhibit P7 written by the 2nd Defendant/Respondent could not bind the Council and that Exhibit P7 written by the 2nd Defendant/Respondent on the directive of the Council was not ultra vires the provisions of the University Act, and the Appellant was given a fair hearing by the Council of the 1st Respondent:’
Before I embark on the consideration of the three issues I have re-formulated and adopted for the argument of the appeal herein which I view as sufficient to dispose of the appeal. It is pertinent that I dwell briefly on the preliminary objection raised by the learned counsel for the respondents in their Brief as follows:-
It is the contention of the respondents that it being a fundamental principle of law that a ground of appeal consisting of facts alone or mixed law and facts will not be entertained in this Court unless with the leave of either the Court of Appeal or this Court under Section 213(3) of the 1979 Constitution of Nigeria. The cases of Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 at 176; Welli v. Okechukwu (1985) 2 NWLR (Pt..5) 63 at 67; Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687 at 695 and Ojemen & 3 ors. v. His Highness Williams Momodu II (The Ogirrua of Irua & 2 ors.); (1983) 1 SCNLR 188; (1983) 3 SC.173 at 189 were called in aid. In making a classification of the 23 grounds of appeal, the respondents contended that whether a ground of appeal is a ground of law, a ground of mixed law and fact or a ground of facts, this Court has in several cases laid down some guidelines to be applied. One should not be influenced, it is argued, by the fact that the ground of appeal is couched as an error in law to discern what it is. The ground of appeal itself, it is admonished, should be thoroughly and properly examined and then construed to find out whether it is in fact a ground of mixed law and fact. The cases of Ogbechie v. Onochie; (1986) 2 NWLR (Pt.23) 484; (1986) 3 SC. 54 at 58; Board of Customs & Excise v. Alhaji Ibrahim Barau (1982) 10 SC. 48 at 139- 142; Welli v. Okechukwu (supra); Ojemen v. Momodu (supra) and Adeogun v. Bakare 1986) 5 NWLR (Pt. 40) 197, 202-203 were cited in support of the proposition. Applying the above stated guidelines to the 23 grounds of appeal, the respondents further argued, these grounds may be classified and categorized as follows:-
Grounds 1, 2, 13, 14, 15, 16, 22 and 23 are grounds of fact: grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 17, 18, 19, 20, and 21 as grounds of mixed law and fact and ground 11 as a ground of law.
The respondents thereafter submitted that with the above classification, 22 out of the 23 grounds of appeal contained in Appellant’s Notice of Appeal conceding ground 11 to be a ground of law- are either grounds of facts or grounds of mixed law and fact, all of which are incompetent and should be struck out. After submitting that in the Notice in respect of the ground of law only (ground 11) is valid, it is the further contention on respondent’s behalf that a Notice and grounds of Appeal containing grounds of law, grounds of fact and grounds of mixed law and fact filed without leave having been obtained, where such leave is required, is irregular and renders invalid the Notice of Appeal in respect or grounds of Appeal that complain of fact only or mixed law and fact. The Notice in respect of the lone ground of law, it is therefore pointed out, is valid vide Lamai v. Orbih (1980) 5-7 SC. 28. We are therefore urged to strike out the 22 grounds which are either grounds of fact or grounds of mixed law and fact which have become invalid and so incompetent. In respect of Ground 11, the respondents submitted that it too, is incompetent by reason of the fact that the Appellant has not formulated any single issue of law based on the lone ground, adding that since the appellant combined that ground (which is of law) with other grounds of appeal that are of fact or mixed law and fact (grounds 3, 9 and 12) the distillation which culminated in issue 3; thus by implication ground 11, is deemed as having been abandoned vide; Egbo v. Laguma ( 1988) 3 NWLR (Pt.80) 109 at 115 G -H; Shell v. Abadi (1974) 1 All NLR (Pt.1) 1 at 11.
The Respondents in addition submitted that grounds 13, 14 and 16 of the grounds of Appeal are wrong in that being grounds of errors in law or misdirection in law and fact, they have not stated the particulars and the nature of the misdirection or errors since they offend against Order 8 Rule 2(2) and (4) of the Supreme Court Rules, 1985. Consequently, they should be struck out. The cases of Welli v. Okechukwu (supra) Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 279: Adeniji v. Disu (1958) SCNLR 408:(1958) 3 FSC 104; Faleye v. Otapo (1987) 4 NWLR (Pt.64) 186 at 193; Dantumbu v. Adene (1987) 4 NWLR (Pt. (5) 314: 321 – 322: Okorie v. Udom (1960) SCNLR 326: (1960) 5 FSC 164 and Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at 741 were cited in support of the proposition.
What may be classified and recognized as errors of law which when addressed to grounds of appeal are categorized as Grounds of Law, may be gleaned from decisions of this Court such as in Comex Limited v. N.A.B. Limited (1997) 3 NWLR (Pt.496) 643 at 656, affirming the dictum of Nnaemeka-Agu, J.S.C. in Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744 – 745. Also the dictum of Eso, J.S.C. in Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491 to the effect that:-
(i) “It is error in law if the adjudicating tribunal took account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more relevant factors ….
(ii) Several issues that can be raised on legal interpretation of deeds and documents, terms of art, words or phrases and inferences drawn therefrom are grounds of law. See Ogbechie v. Onochie No. 491-492. See also Metal Construction W.A. Ltd. v. Migliore (1990) 1 NLWR (Pt. 126) 129-149 at 548 and Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 507 at 531.
(iii) Where a ground deals merely with a matter of inference even if it be an inference of fact, provided it is limited to admitted or proved and accepted facts.
(iv) Where a tribunal states the law on a point wrongly.
(v) Lastly. I should mention one class of grounds of law which has the deceptive appearance of grounds of fact, id est where the complaint is that there was no evidence or admissible evidence upon which a finding or decision was based.
(vi) A misunderstanding of the lower tribunal of the law or a misapplication of the law to facts already proved or admitted.”
Applying the above-mentioned classifications I now propose to take a hard look at and to examine each or the 23 grounds seriatim to see whether they fall within such classifications.
Ground 1 Wrong inference of law.
Ground 2 ” ditto ”
Ground 3 ” ditto ”
Ground 4 Wrong inference of law/misunderstanding of the law.
Ground 5 Wrong inference of law/misunderstanding of the law.
Ground 6 Wrong inference of law/misunderstanding of the law
Ground 7 Wrong inference of law/misunderstanding of the law
Ground 8 Misunderstanding of the law
Ground 9 Interpretation of Statute/Wrong inference of the law.
Ground 10 Interpretation of Statute/Wrong inference of the law
Ground 11 Wrong inference of the law
Ground 12 Misunderstanding of the law.
Ground 13 Fact
Ground 14 Fact
Ground 15 Wrong criteria in reaching a conclusion
Ground 16 Fact
Ground 17 Interpretation of Statute/Wrong inference of the: law
Ground 18 Wrong inference of the law
Ground 19 Misunderstanding of the law
Ground 20 Wrong inference of the law
Ground 21 Misunderstanding of the law
Ground 22 Wrong inference of the law
Ground 21 Fact.
From the foregoing, I am satisfied that all the grounds of appeal save Grounds 13, 14, 16 and 23 are grounds of law. In any event, whether the grounds of Appeal are grounds of law or not is irrelevant because the appellant also has a right of appeal vide Section 213 (2) (c) of the 1979 Constitution which states:-
“(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person … ”
Clearly, the decision appealed against herein is on questions whether or not the appellant was given a fair hearing vide Section 33 in Chapter IV of the Constitution (ibid). To that extent, leave is not required as a precondition for appeal even on grounds of mixed law and fact or fact alone. In that wise, grounds 13, 14 and 16 being grounds of fact do not require particulars. Cf Order 8 Rule 2(2) Supreme Court Rules, enjoining the use of particulars only for misdirections or errors in law. Since as regards Ground 10 it is clear that the particulars therein relate to the substantive complaint, setting out the particulars of the alleged misdirection would not arise. See Chidiak v. Laguda (1964) NMLR 123.
Finally, I hold the view that Ground 11 on its own can sustain Issue 3.
In the result, the preliminary objection is accordingly overruled.
I will now proceed to the argument of the issues.
ISSUE NO. 1:
The gravamen of the appellant’s complaint was that he was not given a fair hearing, and therefore the issue of his guilt or otherwise, was not in issue before the trial High Court presided over by the learned trial Chief Judge. He certainly was not seeking a re-trial in the High Court, nor was he appealing against the decision of the Governing Councilor the 1st respondent. It was therefore not open to the Kwara State High Court to make a finding on his guilt or otherwise. It was also improper, it was further argued, for the Court of Appeal to have affirmed that guilt. It is trite law, it is contended, that the determination of a trial court must be based on the issues joined by the parties in their respective pleadings. After defining WHAT AN ISSUE IS IN THE DICTUM OF Oputa, J.S.C. in Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 183 our attention was adverted to the substance of the Appellant’s complaints as discernible from his pleadings as follows:-
(i) He had been absolved of blame for Examination Malpractices by a Committee of the Governing Council.
(ii) The Governing Council had no power to try or re-try him on the charges as laid.
(iii) The Governing Council did not give him a fair hearing.
(iv) The decision of the Governing Council was ultra vires the University of Ilorin Act. 1979.
It is further maintained that in his judgment at the trial court, the learned Chief Judge recognised the above four issues which were a summary of the six issues formulated in the Appellant’s address at the trial court as the issues in controversy between the parties. In spite of this, however, the judgment of the trial court, it was pointed out, was replete with references to the guilt of the Appellant on charges of Examination Malpractices as exemplified in the following two passages:-
(i) “The evidence adduced by the Defendant and which I accept as nothing but the truth reveals sordid dealings of extreme moral turpitude against the Plaintiff. No attempt was made by Professor Jegede to cross-examine D.W on those aspects of evidence. This on the authority of George Nkwa v. Commissioner of Police (1977) NNLR 18 is tantamount to an admission of D.W.1’s evidence (page 103 of the Record Vol. 1).
(ii) I am in no doubt that the Defendants are justified to have dismissed the Plaintiff from the establishment of the 1st Defendant to prevent further pollution of the 1st Defendant’s channel of academic excellence (page 104 of the Record Vol. 1).”
It was next submitted that from the tenor and content of the above passages the learned trial Judge had formed the impression that the appellant was guilty of the Examination Malpractices and that this singular fact affected his decision. It was contended in addition that where a decision is based on findings of fact on issues not joined by the parties as in the instant case, such decisions must be set aside. Further, it was argued, where a decision is based on an issue not joined by the parties, but rather on an issue highly prejudicial to one party, as in the instant case, such a decision must not be allowed to stand. Hence, rather than set aside this decision, the Court of Appeal, it is submitted, wrongly affirmed the decision of the trial court on this issue of guilt of the Appellant of Examination Malpractices – a matter not shown to be a live issue before that court and which ought not to have been entertained on appeal by the court below. It was further contended that had the respondents wanted to assert that the guilt of the Appellant was an issue in the case, they would have cross-appealed against the finding of the trial court vide Eliochin (Nigeria) Limited v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 at 72. In support of this proposition we were referred to some passages in the judgment of the court below which we were urged, fell into the same error as the learned trial Judge when they pronounced on the guilt of the Appellant. After a careful consideration of the argument proffered by and on behalf of the appellant, I am satisfied firstly, that the learned Justices of the court below did not say that the guilt of the appellant was justiciable in the trial court. The trial court did not itself try the appellant on charges of Examination Malpractices and did not itself find him guilty of such Examination Malpractices. It therefore follows that the court below did not and cannot affirm any guilt of the appellant. Secondly, the guilt or otherwise of the appellant did not arise from the pleadings. What the appellant pleaded in paragraph 29 of the Statement of Claim was to the effect that:-
“29. The 2nd Defenant by a letter Ref. UI/RO/C/C.16 dated 22nd November, 1988 on behalf of the Governing Council surprisingly found the Plaintiff guilty of all charges of examination malpractices and consequently dismissed him from his post as a Reader in the Department of Chemistry with effect from 21st November. 1988 …’
In confirmation of the fact that sequel to what is contained in paragraph 29 of the Statement of Claim the appellant was found guilty, the respondents pleaded in paragraph 20 of the Statement of Defence thus:-
“In reply to paragraph 29 of the Statement of Claim, the defendants aver that Plaintiff was duly heard in respect of the charges of misconduct levelled against him. He was found guilty of the charges and accordingly disciplined in accordance with the provisions of Section 15 of the University of Ilorin Decree No. 81 of 1979.”
It was therefore common ground between the parties that the appellant was found guilty by the Council of the 1st Respondent. Be it noted that this issue was not one of the six issues formulated by the appellant before the trial court and it was not considered as an issue by that court. Albeit, when the trial court was considering one of the issues formulated by the appellant’s counsel before the trial court, to wit: whether or not the misconduct alleged against the appellant amounts to offences of cheating and forgery punishable under the Penal Code, the trial court held the view that the evidence adduced by the respondents revealed “sordid dealings of extreme moral turpitude against the Plaintiff/Appellant” and held further that all the acts of examination malpractices established against the appellant amount to misconduct which is amenable to the domestic jurisdiction of the University of Ilorin Governing Council by virtue of Section 15 of the Act. The court below upheld this finding.
Be it noted too that the trial court neither tried the appellant nor found him guilty of examination malpractices.
In the case of NEPA v, El-Fandi (1986) 3 NWLR (Pt.32) 884 (a Kaduna Division Court of Appeal case) where the plaintiff/respondent therein sued for the unlawful termination of his employment for an alleged misconduct and the issue therein was as to whether the defendant/appellant should prove the serious misconduct before the trial court, Akpata. J.C.A. (as he then was) observed inter alia at page 698 of the Report.
….. all that the employer is to establish to justify the dismissal or termination of the appointment is to show:-
(i) that the allegation was disclosed to the employee.
(ii) that he was given a fair hearing … and
(iii) that the panel believed he committed the offence after hearing witnesses …”
Although the above case is not binding on this court the italicized portion above provides a guide for the respondents’ submissions. The proposition of law is that in order to justify the appellant’s termination of employment the employer (respondents herein) must prove to the trial court satisfaction that the Council believed the appellant committed acts of gross misconduct after hearing the case. This was exactly what the learned trial Chief Judge was saying in the instant case where the Council was said to have believed that the appellant committed the acts of gross misconduct alleged.
The onus was on the appellant to prove that the termination of his appointment was wrongful. See College of Lagos University v. Dr. Adegbite (1973) 5 SC. 149 at 162 and the similar Court of Appeal decision in Abomeli v. N.R.C. (1995) 1 NWLR (Pt. 372) 451.
In the light of the foregoing, I agree with the respondents that the appellant asserted his innocence in paragraphs 22, 23, 25, 27 and 30(i) of the Statement of Claim while the respondents denied paragraphs 23, 25, 27 and 30 in their Statement of Defence. Thus, an issue was joined as to the innocence or otherwise of the appellant on Examination Malpractices. Furthermore, the Respondents, in my opinion, did not re-try the appellants on charges of Examination Malpractices. What that court did which was affirmed by the court below, was to examine the proceedings before the Council to see whether or not the appellant was given a fair hearing and also to determine whether or not the alleged examination malpractices amounted to a criminal offence or not and to see whether or not the Council found appellant guilty and the trial court so found. The trial court on examination of the proceedings before the court and the totality of all the evidence decided that the appellant was given a fair hearing and the alleged examination malpractices amounted to misconduct amenable to the domestic jurisdiction of the Council and they did not amount to criminal offences. This is what the Court below affirmed. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.
Following from the above, I take the firm view that the issue of criminal jurisdiction of the Governing Council of the 1st Respondent did not arise in the pleadings of the parties in the trial High Court. Hence, the court below was correct to have so held. This view is premised on the fact that no where in the Statement of Claim is the criminal jurisdiction of the Council asserted. Issues, it must be emphasized, are joined in the pleadings, not in the evidence. See Ehimare v. Emhoyon (supra); Adeosun v. Adisa (1986)5 NWLR (Pt.40) 225 at 235 and Akintola v. Solano (1986) 2 NWLR (Pt.24) 598 at 623 Sc. Evidence which is at variance with the pleadings goes to no issue and should be rejected and if admitted should be expunged from the record. See Emegokwue v. Okadigbo (1973) 4 SC. 113 at 117; Dike v. Nzeka (1986) 4 NWLR (Pt.34) 144. 156 and Lana v. University of Ibadan (1987) 4 NWLR (Pt.64) 245, 258-259, 262.
Exhibit P1 referred to in the appellant’s Brief is evidence before the court upon which no issue could be joined by it. Indeed, from the foregoing, criminal jurisdiction of the Council did not arise and the mere adoption of 6 issues proposed by counsel as arising for determination did not mean that such adoption is not a finding of fact which requires a cross-appeal before the court below. Such that when a trial court expresses an opinion on an issue not pleaded. Such opinion is Obiter dictum which if it does not occasion any miscarriage of justice, the judgment stands. See Mora v. Nwalusi Ors. (1962) 2 SCNLR 73, (1962) 1 All NLR 681, 687 and Ayoola v. Adebayo & Ors. (1969) 1 All NLR 159 at 164. Thus, any argument by counsel on an issue not joined in the pleadings, it was argued, is irrelevant and incompetent and should be disregarded. Vide Lana v. University of Ibadan (supra). Hence all the arguments proffered by appellant’s counsel on issue 6 are incompetent and they should be disregarded as well. Any issue that does not arise from the pleadings in the court below cannot be raised in any of the grounds of Appeal and argued without leave of the court below as decided in a host of cases in support of that proposition. See Adio v. The State (1986) 2 NWLR (pt.24) 581 at 588; Fadiora v. Gbadebo (1978) 3 SC. 219 at 247; Akpene v. Barclays Bank (1977) 1 SC. 219 at 247 and Ejiofodomi v. Okonkwo (1982) 11 SC. 74, 116 and 117, to mention but a few. I am therefore of the firm view that the court below was right to hold that the issue of criminal jurisdiction of the Governing Council did not arise in the trial court.
ISSUE NO.2:
In considering this issue it is only pertinent to break it into three heads viz: whether the learned Justices of the court below misconstrued the extent of the power of the SSD & AC as to whether power was delegated to them; on whom the onus lay to establish the limits of that power and the effect of delegation. It is contended that it is not in dispute that under the law which created the University of Ilorin ,the University of Ilorin Act. 1979, that power to remove Senior Staff is by the generality of Section 15 given to the Council of the University. This power it is pointed out, is made delegable by the combined provisions of Section 2(1)(a) and 2(1)(b) also hereinafter referred to shortly as the Act). The Council which is a body of persons created by Section 2(1)(b) of the Act not only has powers under Section:2 (1) (a) to appoint committees but also to delegate to such committees any of its functions including the power to remove Senior Staff on grounds of misconduct. It was further submitted that it is not in doubt that it was the SSD & AC of the Governing Council of the University that was being referred to in paragraph 4 of the Statement of Defence as a Committee of that Council. Sequel to this question that arises, it is argued, is whether the power to remove and/or reinstate Senior Staff facing allegations of misconduct was delegated to SSD & AC. The answer to the poser, it is contended, SSD & AC having exercised the power to reinstate the appellant vide Exhibit P.3, has by that act raised an evidential presumption that such power was delegated to them. Section 148 (now 149 of the Evidence Act) was cited in support of the proposition, adding that having regard to human affairs in a public office of this nature, it is not feasible that a committee of the Council would exercise a power not delegated to it.
It was also submitted that this presumption of regularity could only have been rebutted by direct evidence, to wit: the production of the terms of reference of SSD & AC showing limits of their power. The onus was on the respondents vide Section 141 (now Section 142) of the Evidence Act, it is maintained, to produce these terms of reference being a fact within their knowledge but that this they failed to do. The dictum of Lord Denning M. R. in Lever Finance v. Westminster LBC (1971) 1 QB, 222 at 231 was called in aid, adding that the court below should have invoked against the respondents the provisions of Section 148(d) (now 149(d) of the Evidence Act to the effect that if the terms of reference of the SSD & AC had been produced they would have been unfavourable to the respondents. The Justices of the court below, it was submitted, erroneously held that the onus of proof to establish delegation lay on the appellant on the principle that he who asserts must prove. It is therefore the appellant’s contention that once a presumption is raised as in the instant case, the onus shifts to the other party to rebut it by direct evidence, Furthermore, it is argued, the only direct evidence admissible in this regard would have been the written resolution of Council, i.e. the statutory instrument creating SSD & AC. It was further submitted that the mere ipse dixit of the 2nd respondent was patently insufficient to rebut the presumption of regularity raised in the exercise of powers by the SSD & AC. In fact, it is argued, the oral statement of the 2nd respondent was inadmissible. The presumption of delegation not having been rebutted, it is contended, the SSD & AC having exercised the power delegated to them in favour of the appellant for re-instating him effectively disentitled the Council from revoking the exercise of that power. Reliance is placed on Wade, Administrative Law 5th Edition page 326. It is further submitted that it is a trite principle of administrative law that where a power has been delegated the delegating authority will be bound by a decision of its delegate conferring rights on an individual and will therefore be incapable of rescinding that decision. The case of Western Fish Products v. Penwith D. C. (1981) 2 All E.R. 204 at 219 (per Mcgaw, L. J.) was cited in support of the proposition. Consequently, it is argued, SSD & AC having re-instated the appellant effectively ‘tied the hands’ of the 1st respondent which action disentitled the University Council from rescinding that decision.
Undoubtedly, the power of Council under Section 15(1) of the University of Ilorin Act Cap. 455, Laws of the Federation of Nigeria 1990, is a statutory disciplinary power to remove and discipline an erring academic, administrative and professional staff of the University. In this regard, it is trite law that a statutory disciplinary power cannot be delegated. See Vine v. National Dock Labour Board (1956) 3 All E.R. 939, where in the final appeal to the House of Lords it was held that the Plaintiff’s dismissal by a Committee set up by the Local Board under a delegated power to the Committee set up by the Local Board was a nullity because the Local Board had no power to delegate its disciplinary powers.
By virtue of Section 3(2) of the University of Ilorin Act Cap., 455, Laws of the Federation of Nigeria. 1990 (ibid) what the University of Ilorin Council set up under Section 5(1) of the Act is an agent of the University. So also is the Registrar who by his appointment is the Chief Administrative Officer of the University vide Section 5 (1), under the 1st Schedule to the Act. See also Carlen v. UNIJOS (1994) 1 NWLR (Pt.323) 631 where Ogundere, J.S.C. held at page 654 of the Report as follows:-
“It is clear from the above provisions of the Act that the Council, the Vice-Chancellor and the Registrar are creation of the University of Jos Act and each is assigned specific functions as provided for in the Act and in the exercise of such functions.”
See Black’s Law Dictionary which defines ‘agent’ as:-
“A person authorised by another to act for him, one entrusted with another’s business ….. ” “One authorised to transact all business of principal, all of principal business of some particular kind, or all business of some particular place’” etc.
An agent, in my view, means more or less the same thing as a delegate. Similarly, I hold that SSD & AC is a Committee of Council and an agent or delegate of Council of University. The principle of law is that the person to whom an office or duty is delegated cannot lawfully devolve the duty upon another, unless he be expressly authorised so to do, See Huth v. Clarke (1890) 25 QBD J91 and Barnard v. National Dock Labour Board (1983) 1All E.R. 1113.
In the instant case, the power of Council to discipline administrative, academic and professional staff of the University under Section 15(1) of University of llorin Act (ibid) was delegated to it by the University of Ilorin. The Council cannot therefore delegate this power to the SSD & AC which is itself a delegate of the Council.
Under Section 15(1)(c)(i) of the Act, Council in appropriate cases can constitute a joint committee of Council and Senate to investigate the matter and report on it to the Council. Be it noted however that the Committee can only investigate the matter and report it to Council. The Committee has no power to take a final decision; it is the Council that can do so. Beside, there is no proof of any delegation of such power of Council to the SSD & AC while no evidential presumption of such delegation was raised by the unauthorised exercise of the Council’s power by the SSD & AC. Further, the terms of reference of SSD & AC as contained in Section 15(1)(i) of the University of IIorin Act (ibid) are “to investigate the matter and to report on it to the Council” and there can be no delegation of its power by Council to the SSD & AC outside the statutory provisions of the Act. Thus, there was no onus on the respondents to prove delegation. On the principle of he who asserts must prove, by virtue of Section 142 of the Evidence Act (ibid), I am in agreement with the respondents that the onus is on the appellant to prove any delegation of power to SSD & AC by Council and not otherwise. Furthermore, it not having been established as contended by the appellant that the Council had delegated its power under Section 15(1) of the Act to SSD & AC in excess of the provision of Section 15(1)(a)(i) of the Act, the question the appellant raised in paragraphs 7.20 to 7.24 of his Brief as to whether or not the Council is bound by the decision of the delegate, can at best be regarded as hypothetical, academic and theoretical. See Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at page 179, where this Court opined that:-
“it is not part of the function of the Court to entertain and decide hypothetical and academic questions, i.e. questions not arising from the facts of the case:’
See also the cases of National Insurance Corporation v. Power & Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1, 22 and Akeredolu v, Akinremi (1986) 2 NWLR (Pt.25) 710, the latter in which this Court held at page 728 as follows:-
“Courts of law are not established to deal with hypothetical and academic questions. They are established to deal with matters in difference between the parties.”
As to whether the 2nd respondent is not the agent of the 1st respondent and therefore does not bind it (1st respondent). it needs to be stressed that Section 2(2) of the University of Ilorin Act (ibid) in the First Schedule thereto identifies the Registrar (2nd respondent) as one of the principal offices of 1st respondent while Section 5(1) thereof names him as the Chief Administrative Officer of the University responsible to the Vice-Chancellor for the day to day administrative work of the University (1st respondent).
Further, that by virtue of sub-section (2) of Section 5 thereof, he is the Secretary of the Council, the Senate, Congregation and Convocation which are some body of persons established by Section 2(3) of the Act. In arguing this point, it was the appellant’s contention that the 2nd respondent relying on some sections of the University Act (ibid), to wit:
(a) Section 3(1) of the Act, paragraph (j) which empowers the University (1st respondent) to employ and act through agents.
(b) Section 5(1) of Schedule 2 of the same Act which provides as follows:”
There shall be a registrar, who shall be the Chief Administrative Officer of the University and shall be responsible to the Vice-Chancellor for the day to day administrative work of the University…”
(c) Sub-section 2 of section 5 of the same Act which provides:-
“The person holding the office of Registrar shall by virtue of that office be Secretary to the Council, the Senate, Congregation and Convocation,”
Three cases, namely:-
(i) Freeman Lockyer (a firm) v. Buckhurst Park Properties (Mangal) Limited (1964) 2 QB, 480 at 602 defining what constitutes ‘apparent or ostensible’ authority;
(ii) Verrault & Fill Slittee v. A.G. for Quebec (1976) 57 DLR (3d) 403 at 407 to exemplify the bindingness or otherwise on a principal of acts done within such ostensible authority of an agent as well as to statutory or public principals vis a vis private principals, and
(iii) Lever Finance v. Westminster L.B.C. (1971) 1 QB. 223 at 230 where in the words of Denning M.R.:
“If an officer acting within the scope off his ostensible authority makes a representation on which another acts, then the public authority may be bound by it, just as much as a private concern would.”
were cited to demonstrate that the appellant in this case relied on the representation contained in Exhibit P3 – letter of Revocation of Suspension of 17th August. 1988 addressed to the appellant sequel to the latter’s appearance before the SSD & AC – affecting his (appellant’s) re-instatement which the learned Chief Judge rightly found in his judgment and the court below did not disturb it.
From the foregoing, it was further argued, that the court below should have held that the 2nd respondent who must act in accordance with the instructions of the Council. Senate, Congregation and Convocation as the case may be, was a servant or agent of the 1st respondent and so bound by the terms of Exhibit P3 which represented an act within the authority of its agent who the 2nd respondent herein is.
I am in full agreement with the appellant that by reason of the 1st leg of the argument proffered above 2nd respondent is a servant or an agent of the 1st respondent for which see Carlen (Nigeria) Ltd. v. UNIJOS (supra). However, with due respect he (2nd respondent) is not the agent of the Council of the 1st respondent.
Such that whenever the 2nd respondent acts for the Councilor any other body for which he is a Secretary, he must act under the direct control and/or supervision of such body (Council). In which case, if the 2nd respondent purports to issue an instrument removing or re-instating an officer under Section 15(1) of the Act as happened in the instant case, he must do so on the directions of the Council. Consequently, any instrument issued by the Registrar (2nd respondent) under H Section 15(1) of the Act (ibid) without the directions of the Council is invalid and not binding on it.
From the foregoing, I am not taken in by the appellant’s ingenious argument that the court below should have held that the 1st respondent was bound by the terms of Exhibit P3 which represented an act within the authority of its agent personified in the 2nd respondent. This is because, as the learned Chief Judge rightly and justifiably pointed out in his judgment which the court below aptly affirmed:
“….. it is my view that no useful purpose other than fanciful academic peregrination would be served by invoking the aforesaid principle in the instant case. In my judgment the governing Council is not bound to gloss over or rubber stamps a decision taken by one of its subordinate committees or by a staff. I am therefore unable to agree with the submission of Professor Jegede that the 1st defendant is bound to re-instate the Plaintiff in accordance with the terms of Exhibit P3.”
On whether the findings of the learned Justices of the court below as to what transpired at the meeting of the Governing Council were perverse, it is pertinent to stress that the learned trial Chief Judge after reviewing the evidence placed before the Council, evaluated, weighed and ascribed probative values thereto, accepted the case of the respondent and held that the Council undertook a full and thorough investigation of the matter in dispute the outcome of which is that the appellant was given a fair hearing. To this latter point I shall come shortly.
Further, that the Justices of the court below in accepting the findings of that court and in considering this issue whether the trial court evaluated what transpired before the Council, held that the counsel for the appellant failed to proffer any tangible argument to sustain the issue and dismissed it. The court below, in my firm view, took this decision on the basis of the preponderance of evidence before the Council. It is trite law that findings of primary facts are matters peculiarly within the competence of the court of trial – the assessment, evaluation, appraisal of evidence emanating therefrom and the ascription of probative values thereto being primarily and pre-eminently that of the trial court and any interference by an appeal court therewith is by law, confined to narrow and limited dimensions.
See Chief Ebba v. Ogodo (1984) 1 SCNLR 372; (1984) 4 SC. 84 at 88-89 Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267, 282; Thomas v. Thomas (1947) AC 484, 487; Egri v. Uperi (1974) NMLR 22; Fatoyinbo v. Williams (1956) 1 FSC; (1956) SCNLR 274; Akinloye v. Eyiyola (1968) NMLR 92, 95 and Wuluchem v. Gudi (1981) 5 SC. 279 at 236, to mention but a few.
It is also trite law that it is not the function of an appeal court to substitute its own views for those of the trial court where the issue turns on the credibility of witnesses. See Efe v. The State (1976) 11 SC. 75, 81; Sanyaolu v. The State (1976) 5 SC. 37, 44 and Okonofua v. The State (1981) 6-7 SC. 1 at 14.
With the acceptance of the findings of fact of the trial court by the Justices of the court below, there is in existence two concurrent findings of fact of the two lower courts which, in the absence of a substantial error shown, this Court will not make it a policy to disturb them unless there is a substantial error apparent on the record of proceedings or where there is some miscarriage of justice or a violation of some principles of law or procedure or the findings are shown to be perverse. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208. 216. 219; Ibodo v. Enarofia (1980) 5-7 SC. 42, 55: Lokoyi v. Olojo (1983) 2 SCNLR 127; (1983) 8 SC. 61, 68; Ojomo v. Ajao (1983) 2 SCNLR 156; (1983) 8 SC. 22, 53 and Salami v. Oke (1987) 4 NWLR (Pt.63) 1. The answer to this question is that the findings of the court below as to what transpired at the meeting of the Governing Council are not perverse.
As to whether there has been a real likelihood of bias at the meeting of the Governing Council i.e. whether the appellant was given a fair hearing by the Governor Council of the University my answer is as follows:-
I entirely share the respondents’ view that in Nigeria fair hearing is not only a common law right but also a constitutional right. Thus, by virtue of Section 33(1) of the 1979 Constitution (now Cap. 62, Laws of the Federation, 1990) it is provided that in the determination of his civil rights and obligations a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. Section 15(1) of the University of Ilorin Act, Cap., 455 (ibid) makes similar provision for fair hearing before the appointment of an administrative, academic and professional staff is terminated thus giving the exercise of such disciplinary powers, statutory flavour. See the cases of University of Nigeria Teaching Hospital Management board & Anor. v. Nnoli (1994) 8 NWLR (Pt.363) 376 at page 404 paragraphs A-B; 419, paragraphs D-E; Adeniyi v. Governing Council of Yaba Tech. (1993) 6 NWLR (Pt.300) 426; Aiyetan v. NIFOR (1987) 3 NWLR (Pt. 59) 48; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; Imoloame v. WAEC (1992) 9 NWLR (Pt.265) 303; Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25 and Igbe v. Governor of Bendel State (1983) 2 SC. 114.
Be it noted also that the standard of fair hearing requires the observance of the twin pillars of the rules of natural justice, namely:-
(i) Audi alteram partem – hear the other side
(ii) Nemo judex in causa sua – no one should be a judge in his own cause this is the rule against bias. See Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 at 753.
Failure of any tribunal like the Council of the 1st respondent which has a duty to take decisions to observe any of these two rules renders the proceedings and decision a nullity.
By virtue of Section 15(1) of the University or IIorin Act (ibid) all that is necessary is:-
(i) that the complaints must be bought to the notice of the person and
(ii) he must be given an opportunity of making representation in person to Council on the matter.
In the instant case, the learned Chief Judge considered all the evidence before him, considered the allegations of the appellant on the incidents of fair hearing and the relevant laws of fair hearing and came to the inexorable conclusion, rightly in my view, that the appellant was given a fair hearing. The court below in their judgment reviewed the relevant laws of fair hearing and applied these laws to the facts of the case and accepted the learned Chief Judge’s findings that the appellant was indeed given a fair hearing. Cf. the Medical Disciplinary Committee v. Mobolaji Alakija (1959) 4 FSC. 38, (1959) SCNLR 87; Mora v. Nwalusi (1962) 1 All NLR 68, (1962) 2 SCNLR 73 and Yesufu Dele v. Adelalu (1966) NMLR 105.
In this regard Professor Bamgboye, Adeniyi, Abiri and Alhaji Kigo could not be said to have prior knowledge of the facts of the case simply because of the part they played in the investigating panels previously. By virtue of Section 15(1)(i) of the University of Ilorin Act (ibid), some members of Council must necessarily be members of the Committee to investigate the matter. This does not vitiate the proceedings. In fact, Professor Mesubi was only called by Council to produce the two examination scripts in respect of which charges were laid against the appellant and he was neither shown to be a member of the Council nor that he took part in its deliberations. His presence thereat, in my view, did not constitute a real likelihood of bias; nor was any shown. See Ikehi Olue & Ors. v. Obi Ezenwali & Ors. (1976) 2 SC. 23 and Obadara & Ors. v. The President, Ibadan West District Council Grade B. Court (1965) NMLR 336.
It remains to consider the third and final issue i.e. Issue No.3 which enquires whether the consideration and determination of issues 4, 5, 6 and 7 in the appellant’s Brief in the Court below would have determined the appeal in his (appellant’s) flavour.
In arguing these several issues rolled into one, counsel went over a wide range of subjects such as the court below glossing over several issues of law, a denial of fair hearing, necessitating the seeing aside ex debito justitiae of the decision that the court below arrived at and failure on the part of the court below to remit the case to the trial court for e-hearing. Having myself carefully perused the trial court’s record as well as that of the court below, the appellant’s submission that these issues (4, 5, 6 and 7) were not considered by the Justices of the court below, are, in my most respectful view, as will be apparent from my consideration of them as hereunder is misconceived. Now, my treatment of these issues to wit:-
ISSUE 4
“Whether Exhibit P7 is ultra vires the University of Ilorin in Act Cap. 455 Laws of the Federation of Nigeria (1990)”
This issue has nexus with issues 2 and 3 exhaustively considered by the court below on pages 33-41 of the leading judgment of Ogundere, J.C.A. on pages 249 to 257 of the Records. The court below explained the relationship between issues 2, 3, 4, 5, 6, and 7 at pages 33 – 34 of the lead judgment i.e. at pages 245-250 of Volume II of the Records. Before that court (court below) issue 2 was whether the Council is bound by the Act of SSD & AC having delegated its power to it. Issue 3 is whether the Council is bound by the Act of the Registrar (2nd respondent) who wrote Exhibit P3) – the 2nd respondent being an agent of 1st respondent (University of Ilorin).
In considering issues 2 and 3, the Court below came to the conclusion that the Council is neither bound by the decision of SSD & AC nor by the act of the 2nd respondent and so Exhibit P3 is invalid. The Justices of the court below adopted their arguments and findings on issues 2 and 3, came to the conclusion that issue 4, which is founded on issues 2 and 3, had been answered and consequently dismissed issue 4 at page 47 of the judgment of the court i.e. page 263 of Vol. 11 of the Records.
Further, Exhibit P7 was written by the 2nd respondent on the directives of Council vide Section 15(1) of the Act. This letter (Exhibit P7) was written within 5 months from the date of final decision by Council. The date of appellant’s suspension was 23/6/88 vide Exhibit P2 whereas the date of final decision by Council as depicted on Exhibit P7 is 21/11/88.
Under Section 15(4) of the Act where the suspension is continued under Section 15(4 )(a), the Council had 6 months within which to reach a final decision. By a letter dated 22/9/88 ride Exhibit P5. Council informed the appellant that his case had been listed at the next meeting of Council, thus extending his suspension period. As it took less than 5 months for Council to have written to him on 21st November, 1988 Exhibit P7, there could not have been a glaring violation of the mandatory provisions of the Act vide Section 15(4) (ibid). As Council took less than 5 months within which a decision was reached and Exhibit P7 was written to the appellant within that time frame it was therefore not ultra vires the University of Ilorin Act (ibid) in my opinion. ISSUE 7:
“Whether Council is bound by the decision of SSD & AC:”
This issue is connected with issue 2 which has earlier been considered and determined by the court below. The Justices of that court (court below) having answered the issue in the negative, and dismissed it, I too return a negative answer to issue 7.
ISSUE 5:
“Whether the court properly evaluated what transpired before the Council.”
It will be enough here to say that the court below having considered what transpired on pages 7, 8, and 9 of the judgment of the court below (i.e. pages 223, 224 and 225 respectively in Vol. II of the Records) and came to the conclusion that the learned counsel for the appellant failed to proffer any tangible argument to sustain this issue and so dismissed it vide page 47 of the judgment of the court below (i.e. page 263 Vol. II of the Records), the issue of no avail to the appellant here and I so hold.
ISSUE 6
“Whether appellant had fair hearing before Council.”
The Justices of the court below considered this issue on pages 41 to 46 of the judgment of the court below i.e. at pages 257-262 of Vol. 11 of the Records. The learned Justices of the Court of Appeal after considering relevant laws and authorities on the principles of fair hearing and natural justice, applied the principles extracted from the various cases cited and laws to the facts of this case and came to the conclusion that the appellant was given a fair hearing by Council. Consequently, the Justices of the court below adopted their reasoning and conclusions on pages 41-46 of their judgment contained on pages 257-262 of Vol. 11 of the Records and finally dismissed issue 6 at page 47 of the judgment vide page 263 of Vol. 11 of the Records. This is what the court below meant when they said at page 47 of their judgment:-
“Issue 6 must also fall having regard to my opinion herein.”
While therefore I agree entirely with the appellant’s statements of the effect of failure to observe fair hearing in his Brief in paragraphs 12.9 to 12.11, I am of the respectful view that they are not applicable. And irrespective of the fact that the power of this Court under Section 22 of the Supreme Court Act Cap. 424 Laws of the Federation Stated in paragraphs 12.12 to 12.14 of appellant’s Brief has been correctly stated, its exercise thereof does not arise in this case and hold. In the case of Chief James Ntukidem & Ors. v.Chief Asuquo Oko & Ors. (1986) 5 NWLR (Pt.45) 909 at 933 this Court held inter alia that:-
“Fair hearing within the meaning of Section 33(1) of the 1979 Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”
As I had occasion to point out in U.N.T.H.M.B. V. Nnoli (supra) at page 402:’”
Indeed, fair hearing in the con of Section 33(1) (ibid) has been held to encompass “the plenitude of natural justice in the narrow technical sense of the twin pillars of justice, to wit: audi alteram partem and nemo judex in causa sua as in the broad sense of what is not right and fair to all concerned but also seems to be so:” See Mohammed v. Olawunmmi & Ors. (1990) 2 NWLR (Pt. 133) 458 at 485: Nwakoro & Ors. v. Onuma & Anor. (1990) 3 NWLR (Pt. 136) 22.
In concluding whether a consideration and determination of issues 4, 5, 6. 7 and 8 in the appellant’s Brief in the court below would have determined the appeal in appellant’s favour and cognate matters I wish to say as follows:-
Firstly, that Exhibit P7 was issued in compliance with the last part of Section 15(4) and so not ultra vires the University of Ilorin Act. The Sub-section of the Act states:-
“(4) Any person suspended pursuant to subsection (2) or (.1) of this section shall be on half pay and the Council shall, before the expiration of a period of three months after the date of such suspension, consider the case against that person and come to a decision as to –
(a) Whether to continue such person’s suspension and if so on what terms including the proportion of his emoluments to be paid to him:
(b) whether to re-instate 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 will not be entitled to the proportion of his emoluments withheld during the period of suspension: or
(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine.” (Italics is mine for comment).
In effect, the Council must within 3 months come to an interim decision under the four subsections of Section 15(4) (a), (b), (c) and (d) of the Act. Where the Council has taken an interim decision under subsection (a) and (b) of Section 15(4), the Council has an additional period of 3 months within which to come to a final decision. This brings the period to 6 months. Should it be otherwise any delay beyond the interim 3 months is not fatal to the respondent’s case in which the underlined word ‘shall’ should not be read as mandatory but rather as directory. Be that as it may, as the Council took under 5 months within which it came to a final decision and Exhibit P7 was issued in compliance with Section 15(4), the extension is not ultra vires. Besides, my view of the additional period of 3 months, thus making the whole period involved compositely 6 months within which to come to final decision I have also underlined above, would appear to be complete and unassailable if recourse is had to the last portion of subsection 4(d) of Section 15 which states:-
“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.”
All told, in the disciplinary action taken by the issuance of Exhibit P7 by the 2nd respondent at the direction of the Council there has been, in my view, no miscarriage of justice.
In the result, all the issues having been resolved against the appellant, this appeal fails and it is accordingly dismissed. The appellant shall pay the respondents costs assessed at N10,000.00 only.
SC.41/1993
