Dr. Emmanuel Sebastian Akpan V. University of Calabar, Calabar (2016)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
The Appellant lodged this appeal against the judgment of the National Industrial Court, sitting at Calabar Division, Coram Hon Justice O. A. Obaseki-Osaghae, J. delivered on June 13, 2014 in Suit No. NICN/CA/76/2013, wherein the reliefs sought by the Appellant, as claimant were dismissed with costs of N20,000.00.
The facts leading to this appeal, as discernible from the Record of Appeal are as follows: The Appellant was a Lecturer and an employee of the Respondent. Before his demotion by the Respondent on March 1, 2013, he was a Senior Lecturer who had applied for promotion to the position of Reader. His application was in response to a Memo was sent by the Registrar of the Respondent to all Deans of Faculties, Provosts, Directors of Institutes and Heads of Departments calling for Academic Staff who were due for promotion to submit their works and articles through their respective Heads of Departments for the purpose of the 2012 Assessment and Promotion. The Appellant submitted the required items through his Head of Department.
?On receiving the applications
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from academic staff who applied for promotion, the Respondent, through its Vice Chancellor, consulted a body called “Confidential Academic Verification Associations” (CAVA) to investigate fake journals submitted to the Appointments and Promotions Committee by the Respondent’s academic staff; including the Appellant. The said CAVA concluded its investigation and submitted its Report to the Respondent’s Vice Chancellor. The Appellant was not invited to appear before CAVA.
The Respondent’s Appointments and Promotions Committee forwarded the CAVA report to the Respondent’s Governing Council, which approved same and referred the matter to the Management of the Respondent for disciplinary actions. At this point, and as recommended by the Respondent’s Governing council, the Respondent’s Vice Chancellor constituted a five-man Investigatory Committee headed by Professor Akanimo Essiet to investigate all the cases of suspected fake journals submitted by some academic staff for the 2012 promotion exercise, and to recommend punishment. The Investigatory Committee concluded its investigation and submitted its report to the Vice Chancellor who in turn submitted the
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said Committee’s Report to the Respondent’s Governing Council. The Appellant was not invited to appear before the said Investigatory Committee.
The Respondent’s Governing Council wrote to the Appellant a letter, inviting him to appear before its Disciplinary Committee, erroneously stating that he had already appeared and testified before the Investigatory Committee. Another letter was thereafter written to the Appellant inviting him to appear before the Respondent’s Council Disciplinary Committee to clarify issues related to some of his journal submissions for promotion.
The Appellant appeared before the Respondent’s Council Disciplinary Committee. At the conclusion of proceedings, the Appellant was found culpable of publishing in fake journals. On recommendation of the Committee, he was removed from his office as a Senior Lecturer and demoted to the rank of Lecturer 1, which demotion was made public by publications in various media. The Appellant was also directed to “refund all monies earned from” his “unmerited promotion to the rank of Senior Lecturer from 1st October, 2009 to the date of the letter.” Aggrieved by this decision, the
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Appellant instituted action in the lower Court for redress, seeking the following reliefs:
1. A DECLARATION that the Claimant’s employment with the Defendant is an employment with statutory flavour.
2. A DECLARATION that the demotion of the Claimant from the rank of Senior Lecturer one (1) on the grounds that he chose to publish his articles in “fake journals”, and without complying with the laid down procedure as contained in the terms and conditions of his employment is malicious, unlawful and misconceived.
3. A DECLARATION that, having regards to the conditions and requirements laid down for the promotion of academic staff of the Defendant, the Claimant is eligible and qualified for appointment and promotion to the rank of a Reader in the 2012 promotion exercise conducted by the Defendant and should be so promoted.
4. AN ORDER cancelling and/or nullifying the recommendations of the 2012 Appointments and promotions Committee in so far as it affects the Claimant.
5. AN ORDER of perpetual injunction restraining the Defendant, its officers, servants, agents, assigns and privies whatsoever and in whatsoever manner from acting on the
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purported demotion, request for the refund of monies and non-eligibility to seek for promotion for a period of six (6) years.
6. AN ORDER OF MANDATORY INJUNCTION directing the Defendant to refund to the Claimant all deductions made from his salaries and entitlements from March, 2013 based on the recommendations of the Appointments and Promotions, Committee and the decision of the Government Council of the Defendant.
7. AN ORDER directing the Defendant to retract its publication and broadcast through the same media channel they made the initial defamatory broadcast.
8. AN ORDER setting aside and/or nullifying all the reports submitted against the Claimant by the various Committees set up by the Defendant.
9. AN ORDER directing the Defendant to return to the Claimant all original copies of the Claimant’s journals and books as listed in the University of Calabar annul Promotion, 2012 staff Personal Data (Academic staff) (Latest appraisal from of the claimant dated 8/10/2012) in its possession.
10. AN ORDER for the Defendant to pay to the Claimant the sum of Twenty Million Naira (N20,000,000.00) only being damages for subjecting the
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Claimant to public ridicule, scorn, odium and for the malicious, misconceived, unlawful demotion of the Claimant from Senior Lecturer to Lecturer one (1).
The Respondent filed its Statement of Defence, to which the Appellant filed a Reply. The Respondent at the lower Court admitted that the Appellant was not heard by the Investigative body and committee before recommendation was made to the Council of the Respondent. But, that the Appellant was formally invited to appear before the Disciplinary Committee of the Respondent to answer questions and make representation on the allegation of fake Journal publications, which he presented for promotion. The Appellant did appear, responded to questions put to him. The Respondent was of the position that the Appellant appeared before the Disciplinary Council and was given fair hearing before the Disciplinary Committee reach its decision.
At the conclusion of hearing, the Learned Trial Judge affirmed this position of the Respondent, and also declined jurisdiction to entertain the part of the Appellant’s claim that bordered on tort of defamation, and intellectual property. The Appellant’s suit was then
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dismissed by the trial Court. Aggrieved by the decision of the learned trial Judge, the Appellant lodged this appeal upon six grounds of appeal.
The parties exchanged Briefs of Argument. The Appellant’s Brief of Argument was filed on 31/12/2014 but deemed properly filed and served on 22/10/2015. It was adopted on 18/4/2016 by Mba E. Ukweni, Esq. for the Appellant. The Respondent’s Brief, in which a Preliminary Objection was raised, was filed on 18/1/2016 but deemed on 19/1/2016. It was also adopted on 18/4/2016 by Emmanuel Sani, Esq. for the Respondent. The Appellant’s Reply Brief filed on 1/2/2016 was also adopted by Mr. Ukweni.
In the preliminary objection, which shall first be considered; Efet v. INEC (2011) LPELR-8109(SC); First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2010) LPELR-1283(SC); the Respondent contended thus:
TAKE NOTICE that the Respondent shall at the hearing of this Appeal raise Preliminary Objection to wit:
The Appeal is incompetent and ought to be struck out.
THE GROUNDS OF PRELIMINARY OBJECTION:
That by virtue of Section 243(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria
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(as amended). The Appellant only has right of Appeal from the decision of the National Industrial Court to the Court of Appeal on question of Fundamental rights as contained in Chapter IV of the 1999 Constitution (F.R.N.) (as amended) as it relates to matters upon which the National Industrial Court has jurisdiction.
It was submitted for the Respondent that by virtue of Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, an appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on question of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters upon which the National Industrial Court has jurisdiction or with leave as maybe prescribed by an Act of the National Assembly. By the clear and unambiguous interpretation of these provisions, a decision of the National Industrial Court is final with respect to matter within its jurisdiction, except on matters that touch fundamental rights. It was contended that the Notice and Grounds of Appeal of the Appellant do not raise any issue of infringement of fundamental rights under
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Chapter IV of the Constitution. But rather, that the Appellant’s complaint raised questions regarding his dismissal. The crux of the complaint in Grounds 3 and 4 was that the Appellant was not invited to make representation before mere investigatory bodies which have no statutory power to punish, and which do not act in judicial capacity. That this cannot amount to a breach of the right to fair hearing. The Appellant admitted that he appeared before the Disciplinary Committee and was heard by the Committee, which had statutory power to punish, and that satisfied the requirement for fair hearing.
Learned Counsel for the Respondent argued that Grounds 1, 2 and 5 of the grounds of appeal border on arguments raised in the Appellant’s Final Address, which was not supported by evidence on record and which was at variance with the pleadings. The Appellant is also challenging the evaluation of evidence against the finding of the trial Court that the issue of bias and other issues raised in the Appellant’s address are not supported by evidence on record. Ground 6 touches the question as to whether the National Industrial Court can determine a cause of action
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based on tort of defamation. It was contended that these grounds do not relate to fundamental rights. Fair hearing does not encompass these grounds. In urging the Court to strike out the Notice and Grounds of Appeal, reliance was placed on Lagos Sheraton Hotels and Towers v. Hotel and Personnel Services Senior Staff Association (2015) ALL FWLR (Pt. 765) 340 at 363; Sabiru Adebayo v. A.G. Ogun State (2008) 33 NSCQR (Vol. 1) 1 at 25-26.
For the Appellant, it was submitted in reply that there were two fundamental questions:
l. Whether this Appeal is predicated on questions of fundamental right as contained in Chapter IV of the Constitution and;
2. Whether the National Industrial Court has jurisdiction over the subject matter of the appeal.
It was argued that all the grounds of appeal raise issues of fundamental rights under Chapter IV of the 1999 Constitution (as amended). The complaint of the Appellant was that the laid down procedure was not followed by the Respondent in the dismissal of the Appellant. That the fact that the Respondent is of the view that the Appellant was accorded fair hearing is an indication that both parties
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agree that the issue in this appeal borders on fair hearing. It was argued that the complaint of denial of fair hearing was not restricted by its breach by the Respondent but also the breach of the fundamental right of fair hearing by the lower Court in the course of hearing the matter. The complaint of the Appellant was also that the lower Court failed to consider and address all the fundamental issues raised by the appellant, which amounted to a denial of fair hearing. Reliance was placed on Tanko v. U.B.A. Plc (2010) 17 NWLR (1221) 80; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. On the contention that Grounds 1, 2 and 5 border on arguments raised in the final address which are not supported by evidence on record and at variance with the pleadings, learned Counsel for the Appellant submitted that this contention was unrelated to the ground of preliminary objection and that the Respondent had not shown to the Court which submission was not supported by evidence or was at variance with the pleadings. The Court was finally urged to dismiss the Preliminary Objection.
Section 254C (1)(d) of the 1999 Constitution, as amended, provides that the National
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Industrial Court has jurisdiction:
Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.
Section 243 (2) and (3) of the 1999 Constitution, as amended, provides:
2. An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
3. An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an act of the National Assembly:
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of National Industrial Court to the Court of Appeal, such appeal shall be with leave of the Court of Appeal.
From the provisions of Section 243 (2) and (3) and of Section 254C (1)(d) of the 1999
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Constitution, as amended, reproduced above, this Court clearly has the necessary vires to entertain a complaint regarding the issue of fair hearing. In my candid opinion, the Preliminary Objection and the Issues as formulated for determination by the Respondent create the impression that learned Counsel for the Respondent is speaking from both sides of his mouth. Learned Counsel unambiguously acknowledged that the main issues arising for determination in this appeal revolve around the issue of fair hearing which falls within the jurisdiction of the lower Court. That being the case, a preliminary objection was superfluous and a needless exercise. I would therefore dismiss this preliminary objection as being without merit.
In the Appellant’s Brief, five issues were distilled for determination as follows:
1. Whether the learned trial Judge’s non consideration of several issues properly raised and argued in the Appellant’s written address does not amount to denial of the Appellant’s right to fair hearing? (Ground 3).
2. Whether the learned trial Judge wars right in holding that the Respondent satisfied the statutory requirement provided in
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Section 16(1) of the University of Calabar Act and that the purported minutes of the Disciplinary committee of the Respondent was a proof that the Appellant was given notice of his alleged misconduct and accorded fair hearing as required by Section 16 (1)(a) of the University of Calabar Act? (Grounds 1 and 2).
3. Whether the learned trial Judge was right in holding that the non invitation of the Appellant by the investigatory bodies constituted and employed by the Respondent did not amount to a denial of natural justice and that the Appellant’s fundamental right to fair hearing was not violated? (Ground 4).
4. Whether the learned trial Judge was right in holding that the National Industrial Court has no jurisdiction to entertain claims for defamation arising out of employer/employee relationship and in striking out claim number 9 of the Appellant which has nothing to do with defamation? (Ground 6).
5. Whether the learned trial Judge adequately appraised and evaluated all the evidence, oral or documentary, adduced before him at the trial? (Ground 5).
For the Respondent, the following issues were distilled for determination:
1.
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Whether the Respondent afforded the Appellant fair hearing before it took disciplinary action against him.
2. Whether the learned trial Judge was duty bound to take cognizance of issues not borne out pleading of the parties, and not supported by evidence of record raised for the first time in the Appellant’s final address.
3. Whether the trial Court is seized with jurisdiction over causes of action founded on tort and intellectual property simpliciter.
I have carefully examined the issues formulated by the parties and their submissions thereon. In my considered view, the central issue to the determination of this appeal, as even the learned Counsel for the Respondent has acknowledged, is whether the Appellant was accorded with fair hearing before his demotion by the Respondent. In order to address the issues at the core of this appeal, the Court has reformulated the issues for determination as follows:
1. Whether in the circumstance of this case the Appellant was accorded fair hearing by the Respondent before disciplinary action was taken against him.
2. Whether the learned trial Judge was right in holding that the National
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Industrial Court has no jurisdiction to entertain claims for defamation arising out of employer/employee relationship
These issues shall now be considered.
Issue No. 1
The right to fair hearing is a fundamental right constitutionally guaranteed by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Basic elements of fair hearing include that: the Court shall hear both sides in all material issues in the case before reaching a decision which may be prejudicial to any party in the case; and having regard to all circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; The Council of Federal Polytechnic, Mubi v. Yusuf (1998) 1-2 S.C. 11. Each party has a right to be heard at every material stage of the proceedings; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170. In Baba v. Nigerian Civil Aviation (1991) 7 SCNJ 1, (1991) 5 NWLR (Pt. 192) 388, the Supreme Court, per Nnaemeka Agu, JSC emphasized the imperative need to observe fair hearing once
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the rights of a person would be affected thus:
“where the body, whether Judicial, quasi-Judicial, administrative or executive in inception, acts Judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of Section 33(1) of the Constitution of 1979. That indeed is the essence of fair hearing as a constitutional right. In such cases the hearing body must be seen to have observed all the implications and attributes of fair hearing.”
In Olatunbosun v. Nigerian Institute of Social and, Economic Research Council (1988) LPELR-2574(SC), the Supreme Court, per Oputa, JSC held:
“The right to fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment deprivation of some right or loss of means of livelihood Appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the Appellant be
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given ample opportunity to defend his conduct.”
The burden is on the party alleging breach of fair hearing in a case to prove the breach; and he must do so in the light of the facts of the case. Only the facts of the case will show non-compliance with the principle of fair hearing; Maikyo v. Itodo (2002) 5 MJSC 60; Bill Construction Ltd. v. Imani Ltd. (2007) 3 MJSC 217.
The evidence adduced before the trial Court was that the Respondent, through its Vice Chancellor, had consulted a body called, ‘Confidential Academic Verification Associates’ (CAVA) to investigate fake journals submitted to the Appointments and Promotions Committee by the Respondent’s academic staff, which included the Appellant. The report of CAVA, which is found at pages 70-80 of the Record of Appeal states that its investigation and assessment was based on the submission of the individual candidates in their appraisal forms duly signed by them and submitted for promotion during the 2012 academic promotion exercise of the University. The findings of CAVA on the Appellant in its Report is found specifically at page 72 of the Record of Appeal.
?CAVA was by no means a
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Judicial or quasi-Judicial panel. It simply investigated and submitted its findings to the Vice Chancellor.
After the said CAVA report was forwarded to the Respondent’s Governing Council, the Respondent’s Vice Chancellor constituted a five-man Investigatory Committee headed by Professor Akanimo Essiet and mandated to verify and evaluate suspected fake submissions by academic staff for the 2012 promotion exercise. Their Terms of Reference were:
i. To determine the genuineness or otherwise of the suspected fake academic journals
ii. To recommend appropriate sanctions to culprits.
See page 616 of the Record of Appeal.
The Professor Akanimo Essiet’s Committee conducted and concluded its investigation without inviting the Appellant to appear before it. The Committee submitted its report to the Respondent’s Governing Council through the Vice Chancellor. The Committee found the offence of the Appellant to fall under the Respondent’s ‘Revised Definition of Offences and Punishments’ within the category of gross misconduct and recommended that he be dismissed from the service of the Respondent. See page 621 of the Record of
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Appeal.
The report and recommendation was now forwarded to the Disciplinary Committee of the Respondent. The initial letter written by the Respondent invited the Appellant to appear before the Disciplinary Committee in respect of “alleged fake journals which you presented for promotion”, page 68 of the Record of Appeal. The said letter also stated that the Appellant had appeared before the Prof. Akanimo Essiet led Committee and testified there at. Upon protest from the Appellant that he did not testify before the Prof. Akanimo Essiet led Committee, another letter was written to him by the Respondent in these terms:
RE: INVITATION TO APPEAR BEFORE THE COUNCIL DISCIPLINARY COMMITTEE
Please refer to our letter of 7th January, 2013 on the above subject matter.
We request you to ignore our comment on your having appeared before the Anti-Corruption & Transparency Monitoring Unit (ACTU). The Chairman of ACTU reviewed a report which called to question some of your journal submissions for promotion. Please note that you did not necessarily have to appear before ACTU because your submission represents you and speaks for you in the same way
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as they speak for you at the promotion “interview” where they are considered without your physical appearance.
Your invitation to appear before the Council Disciplinary Committee still stands as scheduled in the letter under reference. You will attend that meeting to clarify issues related to some of your journal submissions for promotion.
We regret the misinformation on your appearance before ACTU.
See page 69 of the Record of Appeal.
The Appellant appeared before the Council Disciplinary Committee. The minutes of the meeting of the said Disciplinary Committee were reproduced at pages 591-615 of the Record of Appeal. These minutes were admitted in evidence as Exhibit UC1, without any objection, upon being tendered from the Bar, by J. Agi, SAN, who represented the Respondent; page 806 of the Record of Appeal. The minutes regarding the session of the Appellant before the Disciplinary Committee are found at page 598-599 as follows:
Dr. E. S. Akpan (Dept. Of Accounting)
Offence
Dr. E. S. Akpan presented the following fake versions of established journals for the 2012 promotion exercise: ‘Africa Development’,
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‘Neoafricanist Review’. Also in Dr. Akpan’s resume are the two papers in the journal ‘Giants of Academia’. This “journal” purported to be published in Cameroon has no address, no e-mail, no website and all other information that authenticates a journal.
Submission before the Disciplinary committee Meeting Question: “Please tell us why you are here”.
Response: “I am here in response to an invitation letter from the Registrar over alleged publications in fake journals and tendering same for promotion”.
Question: “Why did you have to publish in fake journals?”
Response: “I did not know of the existence of the journals before Dr. Luyen introduced them to me. I paid him an equivalent of $150 about N27,000 each at the time into a bank account that he provided. I did not know his department or his rank. He convinced me that he represented some foreign publishers and so I approached him for a link. I had no fear dealing with him because in the old editions of the journals which he showed me, I saw articles of some renowned scholars including that of my supervisor. I did not know that the journals are fake although they are not reputable
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journals in Finance, I considered them multidisciplinary journals and so I submitted my work to be published in them. I later got a review from the publishers but I did not keep them. It was from the report of my Dean that I was told that the journals are fake”.
Dr, Akpan explained further that he was not disposed to scrutinize his submissions for appraisal having just returned from a medical trip abroad with his wife. He said as a young Lecturer then without computer knowledge and without proper guidance from senior colleagues and Administration, he was nave and easily fell prey to this fraudster.
Findings/Recommendations
Dr. Akpan’s excuse is not acceptable because the University Library and indeed professional associations exists for necessary information on reputable journals. Dr. Akpan, like some of his colleagues involved in the scam, took the fast and easy way. He is therefore culpable and the Committee recommends as follows:
i. Dr. Akpan’s appraisal for promotion should be stopped.
ii. He should be made to refund all monies earned from the unmerited promotion.
iii. He should be demoted to the position of a
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Lecturer 1, the position he occupied before getting promotion with fake journals.
iv.He should not be promoted for the next five years.
I have been deliberately prolix in reproducing the above minutes. The Council Disciplinary Committee was the main body that had the powers to affect the rights of the Appellant in his employment with the Respondent. The Appellant was invited and did appear before the Council Disciplinary Committee. The above minutes reveal that the Appellant knew and understood exactly why he was invited to appear before the said Committee. He was asked questions and he answered intelligently. His answers were admissions of the offence of which he was accused. He did not complain to the Disciplinary Committee that he had no time to make presentations in his defence neither did he request for further time to be heard. He was given opportunity to be heard in his defence and he was indeed heard.
The learned trial Judge, at pages 818-819 of the Record of Appeal found and held as follows:
“There is no dispute between the parties that the claimant’s employment is one with statutory flavour. The terms and conditions of his
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employment are governed by his letters of appointment and the University of Calabar Act CAP U5 Revised LFN 2010. The question which then arises is whether or not the claimant was given a fair hearing and properly dismissed in accordance with the University of Calabar Act. The relevant provision in the circumstances of this case is Section 16(1) of the University of Calabar Act which provides as follows:
(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
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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.
The claimant has complained that he was not invited by the Confidential Academic Verification Associates (CAVA) who were engaged by the defendant to investigate his publications neither was he invited by the Investigatory Committee chaired by Professor Akanimo Essiet; that by his non invitation his right to fair hearing has been breached. From the evidence adduced, I find that CAVA and the Committee chaired by Professor Akanimo Essiet merely investigated the claimant’s publications and his journals articles which he submitted to the Appointments and Promotions Committee (Academic) for evaluation. They thereafter forwarded their findings and recommendations to the
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University Council for necessary action. These two bodies are not statutorily empowered to punish the claimant. Their recommendations have therefore not affected his civil rights and obligations. In the case of Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 the Supreme Court per Adekeye J.S.C. at 145 stated the position as follows(sic).
In the case of University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) pg. 376 at pg. 404 paras. I – G the Supreme Court said that:
“In the observation of the principles of natural justice and the essential requirement of fair hearing there is a distinction between the recommendation of an investigating panel which has no statutory powers and the action on the recommendation by statutory body with requisite statutory powers. Whereas the recommendation of the panel will not affect the civil rights and obligations of the person whose act or omission is being investigated like the appellants in this case, the acting upon such recommendation does. Hence the implementation of the recommendation by a statutory body must comply strictly with rules of natural
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justice”.
I hold that the absence of an invitation to appear before the two Investigatory Panels is not necessarily tantamount to a denial of natural justice. The evidence before the Court is that the claimant was invited to appear before the University Council Disciplinary Committee. This is borne out by his oral evidence and Exhibit UC1 which is the minutes of the Disciplinary Committee.”
I see absolutely no reasons to disturb these findings and conclusions of the learned trial Judge.
There is a difference between a Judicial or quasi-judicial body and a body that exercises powers which are merely advisory or investigative and which neither affect the civil rights and obligations of a party nor have legal effect until confirmed by another body, which is not acting in a judicial or quasi-judicial capacity; Baba v. Nigerian Civil Aviation (supra); Olatunbosun v. Nigerian Institute of Social and Economic Research Council (supra); Military Governor of Oyo State v. Adekunle (2004) LPELR-6157(CA).
In Baba v. Nigerian Civil Aviation (supra), the Supreme Court, per Nnaemeka Agu, JSC enumerated the features of fair hearing to be
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observed by a Judicial or quasi-Judicial body thus:
“In a Judicial or quasi-Judicial body, a hearing, in order to be fair, must include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial the party, save in recognized exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses, if he likes, and make oral submissions either personally or through a counsel of his choice.”
Where the body set up is merely investigatory or advisory, it does not determine the rights or obligations of the person. The obligation is for such body to act in good faith; Military Governor of Oyo State v. Adekunle (supra).
The role played by CAVA
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and the role played by the Committee headed by Prof. Akanimo Essiet were investigatory. Their respective reports and recommendations were advisory or investigatory and could neither affect the civil rights and obligations of a party nor have legal effect until confirmed by another body. Their respective reports were submitted to the Management of the Respondent which set them up. The Council Disciplinary Committee, then set up by the Management of the Respondent, was mandated to act thereon. There was therefore no obligation on the two investigatory bodies to have invited the Appellant to appear before them. The failure to invite the Appellant did not infringe upon his right to fair hearing.
On the other hand, the Council Disciplinary Committee was a quasi-judicial body. It had the powers to affect the civil rights and obligations of the Appellant. There was no dispute, from the evidence adduced before the trial Court, that the Council Disciplinary Committee conducted hearing sessions and that the Appellant was invited to appear before the said Committee. There was also no dispute as to the fact that the Appellant did appear before the said Council
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Disciplinary Committee and was in fact heard. He did not deny the allegations against him but rather gave responses that amounted to an admission. He did not request for more time to present any further defence. When a party is presented with an opportunity to be heard, the requirement for fair hearing has been satisfied.
As already noted above, the minutes of the Council Disciplinary Committee were admitted in evidence as Exhibit UC1, without any objection from the Appellant’s Counsel. Learned Counsel for the Appellant rightly submitted that even when a relevant document is admitted without objection, the weight to be attached thereon is also an important consideration. Admissibility, which is based on relevance is distinct from weight to be attached to the document; Nwabuoku v. Onwordi (2006) 5 S.C. (Pt. 111) 103; Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 SC. The weight to be attached to a piece of evidence is determined at the end of hearing. A trial judge would then be in a proper position to determine at the end of hearing, while writing his judgment, what weight to attach on evidence adduced, whether oral or documentary. At the end of
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hearing, the trial judge would have been fully exposed to the totality of the evidence before him. He would then be in a proper position to attach probative value on any piece of evidence Nwabuoku v. Onwordi (supra). Exhibit UC1, the minutes of the sessions of the Council Disciplinary Committee, is an authentic public document and is entitled to be given credence and weight. The learned trial Judge was therefore right to have relied thereon.
The letter of demotion was issued on the directions of the Respondent, and has not been repudiated or renounced by the Respondent. There is no reason to discountenance the said letter as having been written without the authority or direction of the Respondent.
Where an employee is dismissed or his appointment is terminated or there is a demotion on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee and that he was given an opportunity to be heard in his defence; that is to say that the requirements of fair hearing were met and that the disciplinary panel followed any laid down procedure; University of Calabar v.
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Essien (1996) LPELR-3416(SC), (1996) 10 NWLR (Pt. 477) 225; Olatunbosun v. Nigerian Institute of Social and Economic Research Council (supra); Ntewo v. University of Calabar Teaching Hospital (2013) LPELR-20332(CA).
In the light of the evidence adduced before the trial Court, I agree with the learned trial Judge that the Appellant was given a fair hearing and disciplinary action was taken in line with the provisions of the University of Calabar Act, in particular Section 16(1) thereof. Issue No. 1 is thus resolved in favour of the Respondent, against the Appellant.
Issue No 2
It is well established that a Court is said to have jurisdiction and therefore competent to determine a suit when:
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise
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of jurisdiction.
These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court the jurisdiction to hear and determine the suit Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (Pt. II) 240.
As rightly submitted by learned Counsel for the Respondent, parties cannot by consent confer jurisdiction on a Court, which it does not have by virtue of the statute setting it up. When the statute creating the Court confers it with jurisdiction over a particular subject matter, the claim of the claimant must also be within the purview of the law.
The National Industrial Court is a Court of limited jurisdiction in terms of subject matter, as clearly spelt out in Section 254C of the 1999 Constitution, as amended. Its jurisdiction is limited to matters closely related to labour and employment matters. The National Industrial Court cannot entertain any matter outside its constitutionally prescribed subject matter area. A claim cannot be considered as
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ancillary to the main claim when it is completely removed from the subject matter of the main claim.
See also Amucheazi & Abba,The National Industrial Court of Nigeria Law, Practice and Procedure, pages 71-72.
A careful examination of the provisions of Section 254C of the 1999 Constitution, as amended will not reveal that its powers extend to entertaining a claim in tort, at all. A claim in tort cannot be considered as being ancillary to a claim for wrongful dismissal when brought before a Court which has its jurisdiction limited by statute. Learned Counsel for the Respondent has rightly submitted that claims for defamation are not merely ancillary claims. A claim for defamation stands on its own. The learned trial Judge therefore rightly declined jurisdiction over the Appellant’s claim for defamation. Issue No. 2 is thus resolved against the Appellant and in favour of the Respondent.
The Issues formulated for determination having been resolved against the Appellant, this appeal fails and is hereby dismissed. The judgment of the National Industrial Court, sitting at Calabar Division, Coram Hon. Justice O. A. Obaseki-Osaghae, J.
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delivered on June 13, 2014 in suit No. NICN/CA/76/2013 is hereby affirmed.
Other Citations: (2016)LCN/8590(CA)
