Dr. Ajewumi Bili Raji V. University of Ilorin & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of Hon. justice P. F. Olayiwola of the Federal High Court sitting at Ilorin delivered on 18th March, 2005. The appellant herein was the plaintiff at the High Court and the respondents herein were the defendants.
The appellant joined the service of the 1st respondent in 1991 and as at the year 2000 he was a senior lecturer in English in the Department of Modern European Languages, Faculty of Arts of the University of Ilorin. He was thus a Senior Academic Staff of the University. The appellant sometime in February 2000 was awarded the Alexander Von Humboldt Research Fellowship by Western Germany. The appellant applied for study leave from the authorities of the University. He was supposed to resume in Germany by 29th March. As a result of time constraint, he later sought executive approval from the 4th respondent – the Vice Chancellor. He left the country for the fellowship programmed before and without approval from the 1st respondent or the 4th respondent. The 1st respondent promptly stopped his salary and issued the query exhibit 4. The appellant replied on 8/5/2000 in exhibit 5. The Governing Council asked the appellant to appear before the 2nd respondent in exhibit Bili 7. The appellant wrote back from Germany giving reasons why he could not return back to Nigeria within the time stipulated to appear physically before the 4th respondent. The 2nd respondent instructed the appellant to report back at the University not later than 21/12/2000 or regards his appointment as having been terminated. The appellant was unable to return. The 2nd respondent wrote exhibit 1 terminating the appellant’s appointment.
The appellant filed a suit at the Federal High Court, Ilorin by way of originating summons on 25/9/2001 as follows:-
LET THE DEFENDANTS all of the University of Ilorin, Nigeria in the Ilorin Judicial Division of the Federal High Court within eight days after the service of this summons on them, inclusive of the day of such service cause an appearance to be entered for them to this summons. which is issued upon the application of the above – named plaintiff of the University of Ilorin, Nigeria who claims that his employment has been unlawfully/wrongfully terminated by the defendants from the university, for the determination of the following question:-
Whether the trial of the plaintiff in absentia by the Senior Staff Disciplinary and Appeals Committee (SDAC) for misconduct, the consideration of the report of the trial and the decision thereon taken by the Governing Council of the University of Ilorin conveyed to the plaintiff vide a letter dated 14th December, 2000, leading to the purported voluntary termination of the employment of the plaintiff as a staff of the University of Ilorin is not ultra vires the defendants, unconstitutional, illegal, null and void having regard to the provisions of Section 36(1) of the constitution of the Federal Republic of Nigeria 1999, and the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation of Nigeria. 1990, in particular section 15 of same?
AND THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS:-
- A DECLARATION that the purported consideration of the allegations of misconduct leveled by the defendants against the plaintiff and the report made and submitted to the 2nd defendant in respect thereof by the Senior Staff Disciplinary and Appeals Committee are illegal, unconstitutional, null and void as same violates the light of the plaintiff to fair hearing as guaranteed by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
- A DECLARATION that the consideration of the said Report and the decision taken thereon by the 2nd defendant, directing the plaintiff to return to the University unfailingly and not later than 21st December, 2000 failing which he would be deemed to have voluntarily terminated his appointment is illegal, unconstitutional, null and void as same violate the plaintiff’s right to fair hearing as guaranteed by section 36(1) of the constitution of the Federal Republic of Nigeria, 1999.
- A DECLARATION that the defendants are biased against the plaintiff.
- AN ORDER removing before this Honourable Court for QUASHING the report of the said Staff Disciplinary and Appeals Committee as it relates to the plaintiff and the decision taken thereon by the 2nd defendant communicated to the plaintiff vide a letter dated 14th December, 2000 for violating the principles of natural justice.
- AN ORDER reinstating the plaintiff back to his office in the 1st defendant as a Senior Lecturer in the Department of Foreign Languages, Faculty of Arts with all his rights and privileges attached thereto.
In a considered judgment, the learned trial Judge found that from the affidavit evidence before him, the plaintiff was not denied fair hearing under section 15 of the University of Ilorin Act or under section 36(1) of the 1999 Constitution. He then dismissed the appellant’s claims.
The appellant being dissatisfied filed this appeal. The appellant’s brief dated 25/10/05 was filed on 26/10/05 and deemed field on 1/2/06, reply brief was dated 23/3/06 and filed on the same day. Mr. Dayo Akinlaja urged the court to allow the appeal. The respondents’ brief dated 13/3/06 was filed on 14/3/06. Mr. Eleja respondents’ counsel urged the court to dismiss the appeal.
The appellant’s counsel Mr. Dayo Akinlaja, Esq. settled only one issue for determination in this appeal and it is stated as follows:”
Whether the learned trial Judge was not wrong to have dismissed the case of the plaintiff/appellant regard being had to the circumstances of the case.”
– Grounds 1-9
The respondents’ counsel Yakub Dauda, Esq. also identified one sole issue for determination.
It is stated below:
“Whether the trial court was not right to have dismissed the appellant’s case having regard to the provisions of the University of Ilorin Act, the provisions of the Constitution on fair hearing and the totality of the facts of this case?”
Simply put, the issue on which this appeal turns is whether the trial Judge was light to have held that neither the provisions of the University of Ilorin Act relating to disciplinary procedure nor the provisions of the 1999 Constitution relating to fair hearing were breached by the respondents in terminating the appointment of the appellant.
On this issue, Mr. Akinlaja submitted that in the circumstances of this case, the crux of the responsibility of the lower Court was to determine whether or not the respondents took the appropriate statutory steps in purporting to terminate the appointment of the appellant. He submitted that the respondents did not comply with Section 15 of the University of Ilorin Act, 1990 (it is now section 16 of Cap. 117, Vol. 15, Laws of the Federation, 2004).
He postulated that the 2nd respondent did not give the requisite notice of misconduct to the appellant to provide the legitimate foundation for the subsequent disciplinary proceedings against the appellant. He argued that Section 15(1) provides for a mandatory procedure to be followed by the University. He cited Bamaiyi v. A.-G., Fed (2001) 12 NWLR (Pt.727) pg. 468 at 497. He argued that the learned trial Judge had held that it was the Committee – Staff Disciplinary and Appeals Committee that issued the query thus contravening the provisions of the law stipulating that queries can only be issued by the council. He submitted that the council had no power to delegate its disciplinary powers to any authority of the University. He cited Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) 290; (1999) 6 SCNJ 295 at 327; Iderima v. Rivers State C.S.C. (2005) 16 NWLR (Pt. 951) 378: (2005) 7 SC (Pt. 111) pg.135 at 140-141
He argued that the finding of facts by the trial court that the query exhibit Bili 4 was issued by the S.D.A.C. is erroneous since there was no indication of that on the fact of the query itself nor was it copied to Council. He submitted that even if the council could have rightly delegated its powers, it could not delegate it to the S.D.A.C. as that Committee was unknown to the Act.
Learned respondents’ counsel in his brief submitted on the question of the proper authority issuing the notice or queries that exhibit Bili 4 was issued from the office of the Registrar who is a member of council and the Secretary to Council. He did not complain against the notice but replied with exhibit 5. He cannot now turn around to make any complaint about it. He cited Ogbonna v. A.-G., Imo State (1992) 1 NWLR (pt.220) Pg. 647 at Pg. 676. He argued that adequate notice as required by Section 15 (a) of the University of Ilorin Act was given to the appellant by exhibit Bili 4.
Learned respondents’ counsel distinguished this case from the case of Iderima v. Rivers State C.S.C supra. He argued that the facts herein are different. In Iderima v. Rivers State C.S.C, there was a complete departure from the Rivers State Civil Service Rules which was frown upon by the Supreme Court. He submitted that a party that took part in irregular procedure cannot turn around to complain about it. He cited Noibi v. Fikolati (1987) 1 NWLR (Pt.52) Pg. 619 at 632. Learned respondents’ counsel argued that once the appellant had replied the notice or query and admitted travelling or absconding from his duty without authorization vide exhibit Bili 5 and Bili 8, all the appellant’s counsel’s complaint about lack of fair hearing is mere academic exercise. He cited Jibrin v. N.E.P.A. (2004) 2 NWLR (Pt.856) 210 at 229 – 230.
Section 15 of the University of Ilorin Act states as follows: –
15(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 professional staff of the University, other than the vice-chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall:
(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 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.”
On this aspect of the issue, it is now well established that where the terms of employment are governed by laws, rules and regulations- that is having statutory flavour, the employee’s employment cannot be terminated except in accordance with such rules and regulations – see FCS.C v. Laoye (1989) 2 NWLR (pt. 106) 652 at 714; Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599; Iderima v. Rivers State Civil Service Commission (2005) 18 NWLR (Pt. 951) 378; (2005) 7 SC (Pt.III) 135 at 144. The reply of learned respondents’ counsel that the appellant cannot turn around to complain after consenting to wrong procedure is to my mind in this case is off the mark. It is well settled that statutory provisions cannot be waived. See Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203: (2001) 9 SCNJ 1 at 19.
Section 15 of the Unilorin Act 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. Unilorin Act. This case has been fought purely on affidavit evidence. The onus is on the appellant to prove that the termination of his appointment was unlawful.
On this issue the learned trial Judge had this to say:
“I take judicial notice of the fact that functions of the University are usually performed by the officials of the University, therefore T. A. Adeyemi was competent to sign exhibit Bili 4 on behalf of the defendants; just as Mrs. Ololade was competent to sign exhibit Bili 7. Furthermore, the Governing Council had never denounced the action of T. A. Adeyemi. I also reject the contention of the plaintiff that it was the Appointment & Promotion Committee that masterminded the disciplinary action against the plaintiff. Paragraph 2 of exhibit Bili 4 clearly stated that: information has reached the administration that you have left the country without waiting for the Appointment & Promotions Committee to consider your application.” (Italics mine).
It is common ground that the notice of allegation of misconduct is the query exhibit Bili 4. I agree with the learned trial Judge that the functions of the University are performed by officers of the University and that the Registrar of the University who is also the Secretary to the Council of the University should be able to execute instructions of the Council. The case of Bamgboye v. Unilorin supra is very instructive on this aspect of the issue. The facts and the issues are almost on all fours with this case. The learned justices of the Supreme Court in considering the various sections of the University of Ilorin Act held that the power of Council under section 15(1) of the University of Ilorin Act is a statutory disciplinary power. It is the power to remove and discipline an erring academic, administrative and professional staff of the University. A statutory disciplinary power cannot be delegated. See page 326 of the Bamgboye v. Unilorin. Also in that case, the status of the S.D.A.C. was considered and it was held that even though it was a Committee created by the Act, the Council could not delegate its powers of discipline to it.
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 authorized to do. The power of Council to discipline Senior Administrative, Academic and Professional Staff of the University under section 15(1) of the Unilorin Act was delegated to it by that Section of the Act, the Council cannot delegate it to another i.e. the S.D.AC.
In the light of the above, we must look at the disciplinary procedure adopted in respect of the appellant’s case by the respondents. Exhibit Bili 4 is a query written by the Registrar of the University. The Registrar did not refer or purport to take authority from the S.D.A.C. – the disciplinary Committee. In Bamgboye v. Unilorin, the Supreme Court upheld the finding of the trial court that by virtue of section 3(2) of the Unilorin Act, the University 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.
Exhibit Bili 4 was written by the Registrar – as Chief Administrative officer and Secretary to Council. Exhibit Bili 6 and Bili 7 show clearly that the council delegated its powers to investigate the allegation of misconduct on the S.D.A.C.
Exhibit Bili 9 is the council’s deliberation on the report of the S.D.A.C., it showed that the council deliberated on the report and made its decision. The final disciplinary decision was made by the council and not the delegated body. Thus, the S.D.A.C. merely made recommendations to the Council. There was no delegation of the actual power of discipline which was exercised by the council through the Registrar vide exhibit Bili 10 and exhibit Bili 1.
Thus, I am of the firm view that the initiation of disciplinary proceedings was done by the Registrar through whom the University acted. By exhibit Bili 6 dated 7/9/2000, the Registrar’s office wrote to the appellant, its decision to refer the matter to the S.D.A.C.
It only stands to reason, that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for such purpose. See Edet v. Chief of Air Staff (1994) 2 NWLR (Pt.324) 41 at 59; Saba v. NC.A.T.C. Zaria (1991) 5 NWLR (Pt.192) 388 at 418. See Nnaemeka-Agu, JSC in Saba v. NC.A.TC. Zaria supra.
Exhibit Bili 10 dated 14th December, 2000 States as follows:
“Dear Dr. Raji
Unauthorized Absence from Duty Post
You will recall that your case was considered in absentia by the Staff Disciplinary and Appeals Committee (SDAC) using available evidence in respect of an allegation of misconduct leveled against you.
The Governing Council at its meetings of 14th December, 2000 has carefully considered the report of the staff Disciplinary and Appeal’s Committee and directed that you be advised to return to the University unfailingly, but not later than 21st December, 2000 failing which you will be deemed to have voluntarily terminated your appointment.
Accordingly, you are hereby advised to return to your duty post as directed.”
Exhibit Bili 1 dated 8th Jan. 2001 states as follows:
“Dear Dr. Raji.
Voluntary Termination of appointment
You will recall that by our letter dated 14th December, 2000 Council’s decision that you should return to the University by 21st December, 2000 was communicated to you. It has been observed that as at 21st December, 2000 you have failed to comply with this directive.
Sequel to the above, we have been directed to convey council’s directive to you that having failed to return to your duty post as at 21st December, 2000, you are deemed to have voluntarily terminated your appointment with effect from the date you abandoned your duty post without due approval i.e. 29th March, 2000.
You are required to hand over all University property, including your identity card to the University Authority.”
The wordings of both exhibit Bili 1 and exhibit Bili 10 show that the writer was conveying the disciplinary decision of the council to the appellant. It was not the decision of the S.D.A.C. and the S.D.A.C. did not presume to convey any disciplinary decision to the appellant. I am of the view that the council did not delegate its powers of discipline to any subordinate or other body and it properly exercised its powers over the appellant.
Exhibit Bili 10 did not even implement all the various disciplinary measures recommended by the S.D.A.C. in exhibit Bili 3. It only instructed the appellant to return to his duty post within a certain time. Exhibit Bili 11 written on the 26th of June, 2001 treated him as having voluntarily terminated his employment and stated his consequential entitlements.
In my view, the Governing Council of the University was more than generous. The appellant cannot eat his cake and have it. He cannot be holding down two different positions on two continents without the consent of his employers. The University Council rightly in my opinion terminated his employment in accordance with S. 15(3) (d) of the Unilorin Act. The affidavit evidence show that up till 23 June, 2004 three years after the appellant was supposed to be back at his duty post, affidavits were still being sworn to on his behalf on the understanding that he would be back in the Country “soon” See page 83 – 84 of the Record.
The second point argued by learned appellant’s counsel is that any matter of discipline could only be referred to the joint committee of the council and the senate after the council had given notice of misconduct to the erring staff. The respondent only afforded the appellant an opportunity to make representation to the S.D.A.C. and not the appropriate authority which is the council. Thus he was denied the opportunity of being heard in accordance with section 15(1) (b) and (c) of the Act.
Learned respondents’ counsel replied on this point that the appellant had failed to take the opportunity provided by Section 15(1) (c) of the Unilorin Act to request for a joint Committee of the Senate and Council, therefore he cannot be heard to complain that he was denied the opportunity. He cited Menakaya v. Menakaya (2001) 16 NWLR (Pt.738) 203 at 263
On this the learned trial Judge held:-
“I have looked at Section 15 of the Act, it provides for a joint committee where there was a request for it either from the plaintiff or the Disciplinary Committee. There was not such request in exhibit Bili 5 and in exhibit Bili 8 plaintiff urged the defendants to take his representations in Bili 8 as his position on the matter.”
I am of the view that appellant’s counsel’s argument on this issue is completely misconceived. The appellant had made all representations to the S.D.A.C. who investigated the allegation against him. He had the opportunity to request for a joint Committee of the Council and the Senate to decide his matter. The whole disciplinary process starting with the issuing to him of exhibit Bili 4 the query commenced on 5th May 2000 and ended with exhibit Bili 10 dated 14th December, 2000. He had a period of about 6 months to make the request which he failed and neglected to do. He cannot now complain of lack of opportunity to do so.
Section 15(1) (b) and (c) of the Unilorin Act talk of the appellant’s right to make personal representation to the council and the right to make arrangement for a joint committee of the council and Senate. I think the legal maxim volenti non fit injuria is applicable to restrain the appellant from complaining in the circumstances that he was not given adequate opportunity to present his case by virtue of Section 15(1) (b) and (c).
Learned counsel for the appellant also argued that even though the appellant indicated inability to appear, the failure of the S.D.A.C. to sit on 14/11/2000 and its failure to notify the appellant of the date rescheduled was fatal to the case of the respondents. He cited Osawe v. Osawe (2003) FWLR (Pt.183) 975 at 105.
He further submitted that exhibit Bili 3 showed that the appellant had already been found guilty before he was heard. He argued that exhibit Bili 3 showed clearly that the S.D.A.C. was biased against the appellant before his appointment was terminated thus the statutory procedure laid down was not followed and he was denied fair healing. He cited U.N.T.H.M.B. v. Nnoli (1994) 6 NWLR (Pt. 250) 752; (1994) 10 SCNJ 7 at 88 – 91; Fed. Poly Mubi v. Yusuf (1998) 1 NWLR (Pt. 533) 343; (1998) 1 SCNJ 11 at 17
Learned respondents’ counsel submitted in reply that the appellant was given fair hearing in this case. Fair hearing does not necessary mean oral representation. The appellant had elected that his written representation should be taken in lieu of his physical appearance. He cited Olatunbosun v. N.I.S.E.R. (1986) 3 NWLR (Pt.29) 435 at 437; Baba v. N.C.A.T.C (1991) 5 NWLR (Pt. 192) 388 at 418. He argued that the appellant was given every opportunity to be heard though he chose not to make himself available physically to be heard orally. He cited Danna v. Oceanic Bank Int’l Nig. Ltd. (2005) 4 NWLR (Pt.915) 315 at 408; Annam v. B.S.J.S.C (2006) All FWLR (Pt.296) 843 at 860. He submitted that there was enough evidence on record to Support the decision of the trial Court. He cited Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650 at 667; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 at 647.
A careful perusal of exhibit Bili 3 to my mind does not show any bias. The report of the committee exhibit Bili 3 showed clearly the attempts of the committee to investigate his matter and their conclusions and recommendation to senate. Where is the bias when the appellant failed to utilize three opportunities given to him by the Committee of the University to appear in person more so when the allegation of misconduct was his absence from his duty post which he had admitted in exhibits Bili 5 and Bili 8? To my mind, I am of the view that the appellant was given every opportunity to be heard, See Danna v. Oceanic Bank supra at 408 and Annam v. B.S.J.S.C supra at 860.
Finally, learned appellant’s counsel argued that even though the appellant was given a query for his abandonment of duty exhibit Bili 4, his appointment was eventually terminated according to exhibit Bili 1 because of his failure to return to his duty post by 21st December, 2000 in obedience to the directive of the council. He argued that the respondent ought to have given the appellant a fresh hearing. He ought to have been given the opportunity to make representation on why he could not be back at the University by the scheduled date of 21st December, 2000.
On this the learned trial Judge held as follows:-
“Learned counsel also suggested that the plaintiff has been indicted before being heard. This was also disputed by the other side. I do not agree to (sic) the plaintiff’s counsel on this as exhibit Bili 3 did not terminate his appointment but asked him to return to his duty post latest 30/11/2000 which he did not comply with. By exhibit Billi 10, plaintiff was also asked to return home by 14/12/2000, he did not comply with this too.”
From the affidavit evidence it is clear that the appellant’s appointment was deemed terminated by him on his failure to report back to his duly post. The University Council gave him an opportunity to retrace his steps which he did not avail himself of. There is absolutely no need for the University to issue a query on the appellant for his failure to obey a direct order of the council to return to his duty post. He was plainly made to understand that the consequence of his failure to return to his duty would result in automatic termination of his appointment.
Learned appellant’s counsel in his brief did not seriously canvass any argument with regard to an alleged breach by the respondents of Section 36(1) of the 1999 Constitution. However on a careful reading of the whole proceedings and judgment of the trial court, I am persuaded that there has been no breach of the appellant’s Constitutional right to fair hearing.
For the foregoing reasons, I am of the view that the appellant’s appeal lacks merit and it is hereby dismissed. I award N 10.000 costs to the respondents against the appellant.
Appeal dismissed.
Other Citations: (2006)LCN/2000(CA)
