University Of Lagos & Ors. V. Professor Luke Uka Uche (2008)
LawGlobal-Hub Lead Judgment Report
REGINA OBIAGELI NWODO, J.C.A.
This is an appeal against the Ruling of the Federal High Court Lagos Division delivered on 8 of November, by Hon. Justice G, C. Okeke in Suit No. FHC/L/CS/617/01.
The Plaintiff in the Court below herein the Respondent commenced an action by way of Judicial Review against the Defendant in the Federal High Court Lagos Judicial Division now the Appellant. The Respondent sought by way of motion exparte sought and obtained leave to apply for Judicial review in respect of 3 reliefs, consequent upon the grant of leave, which he then applied by way of Motion of Notice dated and filed 24 July, 2001 for the following reliefs:
“1. A declaration that the suspension of the Applicant by the Respondents is unconstitutional, null and void and of no effect.
2. An order of prohibition restraining the Respondents from acting on decisions of Committees of the Respondents recommending that the Applicant be removed as staff of the Respondents.
3. An order of certiorari removing the investigations findings and recommendations of the committees of the Respondents against the Applicant into this Court of the purpose of being quashed”.
The Defendant Appellant filed a counter affidavit in opposition. Both learned counsels for the respective parties addressed the court below extensively on the issue of suspension, prohibition and certiorari. The Learned Trial Judge in her Judgment granted all the reliefs stated on the Motion on Notice (supra).
Dissatisfied with that decision, the Appellant filed its Notice of Appeal on 18 of November, 2004 containing 4 grounds of appeal. In accordance with the rules of this court both parties filed and exchanged briefs of argument. Appellant filed his brief on 13 January, 2005 whilst Respondents/Appellants Cross Brief of Argument was filed on the 11 of March, 2005. The Appellant filed a reply brief to the Respondents Brief and Cross Appeal on 5 of April, 2005.
When the Appeal came up for hearing on the 6th of May, 2008 the Appellants counsel adopted and relied on his brief and urged this court to resolve all the issues in his favour. The Respondent counsel adopted and relied on the Respondents brief of argument and urged this court to resolve the issues in favour of Respondent and dismiss the appeal.
The learned senior counsel for the Appellant, Chief A. Awomolo SAN urged the court to ignore the arguments of the Respondent in paragraph 5 to 6 in particular paragraph 5.07 up to paragraph 5.09 of their brief on the grounds that it did not flow from the 4 grounds of appeal in the Notice of Appeal. It was his contention that the Respondent did not file a Notice of Intention for him to contend on the appeals founded on other grounds. He referred to paragraph 5.07 to 5.10 contending they did not flow from the lone ground of the cross appeal dated 18 January 2005 filed 19 January 2005 by the Respondent
The learned counsel to the Respondent Mr. Quakers responding on that point submitted that the Notice of Preliminary Objection is what is envisaged by this court for the Appellant to file to avoid surprises. However, not conceding to the contention of the learned senior counsel for the Appellant, it is his submission that the issue can be raised as they are related to the grounds of appeal. He cited LPDC v. Gani Fawehinmi (1985) 2 NWLR (Pt. 7) pg. 300 – 305 ratio 6.
I have gone through the main file in this appeal and there is no Notice of Contention filed by the Respondent in accordance with Order 9 rule 1 of the Court of Appeal rules 2007 nor is there any evidence same was filed in the Registry.
From the court’s file there is a Notice of Cross Appeal dated 18 January 2005 exhibited on the Motion of Notice filed on 24 February 2005. This said Motion on Notice sought an order of court extending the time within which the Respondent may cross appeal against the judgment of the federal High Court delivered on 8 December 2004, this court considered the application refused for extension and dismissed the Motion on Notice on 13 February 2006, Also a Motion on Notice seeking similar prayer for extension of time to cross appeal was also filled, later struck out on 19 June 2006. by this court. There is no evidence from the records that this court granted extension of time to the Respondent to cross appeal.
Therefore, there is no valid Notice of Cross Appeal dated 18 of January 2005 filed in this appeal. Having carefully gone through the respective briefs of argument filed by the parties, the reply brief filed by the Appellant and the record of appeal, I will consider solely the issues arising from the grounds raised in the Notice of Appeal and discountenance submission on cross appeal under part 8 of Respondent Brief and the Appellants reply on that section.
Briefly the facts that gave rise to the claim are as follows. The Respondent is a professor in the Department of Mass Communication of the University of Lagos. He was the Head of Department of Mass Communication in August 1999. The Appellants are University of Lagos, Senate and the Governing Council of the University. The governing council at its sitting of 26 January, 2001 received reports on the academic work in the Department of Mass Communication, with particular reference to allegations of misconduct, touching and sexual harassment of students and staff, examination malpractices, misappropriation of funds against the Respondent and the leadership crisis between the Respondent and Professor Akinfeleye in the Department resulting in press reports. The council discussed the report and resolved that the Senate of the University set up a committee to investigate the allegations of misconduct as it relates to the Respondent and Professor Akinfeleye. The Senate investigation committee is to report back to the council.
The council further decided and directed that the two Professors be prohibited from performing the functions of their office pending the conclusion of the investigation but their emoluments and rights be maintained and given to them in full. The resolution of the council was communicated to the Respondent in a letter exhibited by affidavit evidence during hearing in the court below as exhibit 1. Pursuant to the directive of council, the 2nd Appellant (The Senate of the University of Lagos) set up a senate investigation committee and gave notice of the allegation to the Respondent who submitted a comprehensive response to all allegations and was represented by counsel. At the end of the investigation the 2nd Appellant submitted its report recommending that the Respondent be dismissed from office while Prof. Akinfeleye should be advised to resign.
The Senate 2nd Appellant accepted the report of the investigation and forwarded to council. Pending the approval of the recommendations by the 3rd Appellant (The Governing Council of the University of Lagos), the Respondent commenced an action by way of Judicial Review in the Federal High Court seeking for the relief reproduced supra. Consequent on the decision of the court below, the Appellant then proceeded to this court filed a Notice of Appeal of 4 grounds of appeal which reads as follows:
“Grounds of Appeal:
1. The learned trial judge erred in law when he held as follows:
It is my view that the invitation of the police as Exhibit LU1 indicated that there was a criminal offence which ought to be investigated by police. In view of the authority of Garba v. University of Maiduguri, I hold that the criminal office having been referred to the police after due investigation by the Senate Committee that the police should be allowed to take the necessary steps by charging the matter to the court which has the jurisdiction to entertain criminal matters.
2. The learned trial judge erred in law when he granted the declaratory claim of the Respondent to the effect that the suspension of the Respondent by the Governing Council was unconstitutional, null and void and of no effect having found expressly that “the suspension was in order to facilitate investigation” by the Senate in accordance with the University of Lagos Act and the decision of the Supreme Court relief upon thereby occasioned a grave miscarriage of justice.
3. The learned trial judge erred in law when he allowed or granted the claim of the Respondent by an order of prohibition restraining the Appellants from acting on the decision of the Committee of Senate when the allegation of bias and/or infraction of the rules of fair hearing, was/were not found to be proved or established and thereby occasioned a grave injustice against the interest of the Appellants.
4. The learned trial judge erred in law when he granted the reliefs of the Respondent by issuance of the “order of Certiorari removing the investigation, findings and recommendations of the committee of the Senate against the respondent into the court for the purpose of being quashed”. When none of the established grounds for making the order was satisfied, and the order ought reasonably to be refused and thereby occasioned a grave miscarriage of justice.
The Appellant in his brief formulated two issues for determination:
“1. Whether the learned trial judge exercised her discretion judicially, and judiciously in accordance with established principles in granting all the reliefs of the Respondent in the prerogative proceeding.
2. Whether the learned trial judge correctly treated the issue of criminal allegation and the investigation by the police in the matter, having arisen after the filing of the application and when no criminal allegation was made against the Respondent before the Senate committee”.
The learned counsel to the Respondent did not adopt the two issues formulated by the Appellants counsel, he formulated one sole issue for determination: “Whether the Learned Trial Judge was right in granting all the claims of the Respondent”.
This sole issue is similar to issue one formulated by the Appellant except for the phraseology, in my view both can conveniently be considered as one issue. However, issue one formulated by the Appellant is more explicit and related to the grounds of appeal unlike the sole issue of the Respondent which has not been related directly to any ground of appeal. I hold the issues formulated by Appellant are apt and I adopt same in the consideration of this appeal.
Under issue 1, learned counsel for the Appellant referred to the Judgment of the lower court on page 360 lines 3 to 10. It is his submission that the decision of the Learned Trial Judge therein relying on the decision of the Supreme Court cited on page 360 settled all disputes as to the claims of the Respondent on the matter of suspension. He contends the lower court did not and anything contrary and was without justification in law and in fact by granting the Respondent’s first relief. Further that the decision of council to order investigation by the peers of the Respondent, in the Senate accords with the law under S17 of the University of Lagos Act, it is his further submission that the resolution of the council that the two founding professors be suspended temporarily in exercise of its powers under S17 of the University Act was not exercising a Judicial function and was not a legal authority to determine questions affecting the rights of the professors. It is his further contention that the decision of the council was an administrative act intended to ensure good and stable administration in the institution.
On issue of suspension with full pay, rights and emoluments he submitted that it is not a punishment for any offence because Respondent was not on trial before the council as the question of fair hearing did not arise at all in the circumstances of the suspension. It is his contention there was no need to give notice of the allegations required in any trial under S36 of the 1999 Constitution. He referred to Esiaga v University of Calabar (2004) 4 SC (Pt. 1) 1 at 18. It is his further submission that the ratio decidendi in Garba v. University of Maiduguri relied upon by the lower court was not relevant and applicable.
The Appellant counsel further argued that the Learned Trial Judge did not adduce any reason for granting the declaratory relief in the application and therefore it is difficult from the record to find any suggestion for the erroneous conclusion of the court. On whether the members of Governing Counsel were same members of the Senate who selected members of the investigation committee, learned counsel’s submission is that the allegation of dual membership of bodies is untenable because there was no evidence before the court as to whether the named professors were present on 26 January, 2001 at the meeting of the council when the complaints was discussed, and that there is no evidence that any of the named professors nominated or influenced nomination of a particular member of the investigation committee. It is his further submission that without conceding that the claim was right on issue of dual membership of council and senate, it is his contention same was laid to rest as inconsequential in the issue of Dr. Tunde Bamgboye v. University of Ilorin (2001) FWLR (Pt. 32) 12. He referred to S3(1) and S24 (1) & (5) of the University of Lagos Act contending it is impair material with S15(1) of Unilorin Act. It is his further submission that the regulation governing the conduct of the senate meeting is the internal affairs of the senate and that the complaint on the notice of meeting did not attach any vice to the decision of the senate committee or the senate.
Learned Counsel to the Appellants further submitted that when an allegation of infraction of the principle of fair hearing or fair procedure is made against a domestic tribunal in dealing with a domestic issue, the court should not invalidate or nullify the proceedings or conclusion thereby, unless the court is able to come to the conclusion, upon an objective view of the circumstances, that there was likelihood of bias or that miscarriage of justice has been occasioned. In this case no miscarriage of justice was found by the trial court.
It is his further contention that the Learned Trial Judge did not consider the case on merit when he granted the order of certiorari, His submission is that the procedure adopted by the committee availed the Respondent of all rights to fair hearing, that since senate committee is not a court of law they satisfied the requirement of fair hearing and the Respondent having participated in the proceedings waived his right to complain and was bound by the conclusion. His further submission is that all the known and established grounds relevant to warrant an order of a certiorari, do not support the decision of the Learned Trial Judge.
It is his contention that the Learned Trial Judge throughout his Judgment found none of the grounds proved and did not proffer any reason rather he surrendered to emotion and feelings. He cited Fawehinmi v. Akilu & Another (1987) 2 Vol. 18 NSCC 1265 at 1302 and Ogbodo v. Egba (1987) 2 NWLR (Pt. 54) 1 at 17, submitting that sentiments and emotions have no place in our judicial system.
The learned counsel to the Respondent Mr. Osita Okoro in his brief contends that the narrow question for determination is whether the 3 Appellant, who usurped the power of the Vice Chancellor, has any power at all to prohibit the Respondent from office. It is his submission that S17 of the University of Lagos Act falls within 3 limbs; the first limb deals with issuance of notice, the second limb S17(b) & (c) with investigation and hearing of the matter; and the third limb covers the punishment section. He referred to Exhibit 1 which is the letter suspending the Respondent from office signed by the Ag Registrar and Secretary to Council and poised the question whether the 3rd Appellant (the Governing Council) have any power at all to prohibit an academic staff from office.
It is his submission that S17 of the Act vest the power to prohibit a member of the academic staff of the 1st Appellant in the Vice Chancellor not the 3rd Appellant. He submits that the Act does not give the 3rd Appellant the power to prohibit the Respondent who is an academic staff of the University of Lagos. Learned counsel further submission is that the purported prohibition of the Respondent by the 3rd Appellant is not only ultra viras the powers of the 3rd Appellant but also illegal, null and void and of no effect. It is his contention that the 3rd Appellant breached the procedure for the removal of an academic staff. He referred to the cases of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) and on non-compliance for the disciplining of a member by an administrative body, he cited Shitta Bey v. Federal Public Service Commission (1981) NSCC Vol. 12 pg. 19 21 ratios 3. It is learned counsel’s submission referring to Exhibit 1 that from the tone of the letter Exhibit 1, that Respondent had already been presumed guilty before investigation into the allegations was commenced. He contends the latter procedures were geared towards the actualization of the predetermined intention of the Appellants which is to dismiss the Respondent from service. He referred to the minutes of the proceedings of the 3rd Appellant contending it contains prejudicial and decisive prelude to the letter of decision suspending the Respondent from the 3rd Appellant. He referred to the conclusion of the Chairman of the 3rd Appellant wherein the Respondent was said to be irresponsible and submits that the proceedings of the council of 26 January, 2001 and Exhibit 1 shows that 3rd Appellant acted quasi- judicial in the Respondents matter without observing fair hearing. On whether there was a determination of the Respondents obligation he referred to Baba v. NCATC (1991) 5 NWLR (Pt. 192) 388.
Mr. Osita Okoro urged the court to reject the Appellants Counsels contention that in so far as the council of the University of Lagos is an administrative body, it has no duty to observe natural justice. He referred to Cooper v. Wands worth Board of Works (1863) 14 CB (NS) 180 and Ridge v. Baldwin (1964) AC 40.
It is his submission that the 3rd Appellant having deliberated on the Respondent matter and decided to suspend him based on allegations was bound to act fairly. Learned counsel further submits that in so far as the 3rd Appellant sat over weighty allegations made against the Respondent extensively debated on it and came to a decision to take an action against the Respondent, it was bound to observe the dictates of natural justice. It is his contention that the 3rd Appellant was bound to hear the Respondent before making the prejudicial conclusions as shown in its minutes and Exhibit 1. His submission is that the failure to hear the Respondent before the decision to suspend him on the basis of allegations was unfair. It is his further submission that the 3rd Appellant cannot be the accuser, the judge, the prosecutor, the jury, confirming authority and the Appellant body all in one. His contention is that there is no fairness in the procedure. He submits the trial court was right to allow certiorari to lie in the circumstance. He argued that the dismissal of the Respondent was the culmination of the chain of events set in motion by the 3rd Appellant on 26 January, 2001. The position of law is now settled that failure to observe natural justice invalidates proceedings and that once there is no fairness, the action is void and so is anything that follows it. He submits the report in this case is void as a product of a most unfair and illegal procedure. In reply or point of law, learned counsel to the Appellant submits that the 3rd Appellant in receiving and treating the report concerning happenings in the Department of Mass Communication was only obliged to satisfy itself that there appears to it that there are reasons for believing that its employee may be removed for misconduct. It is his contention that the council at that stage was taking preliminary steps in the disciplinary process not a final decision.
The gist of the points canvassed under the first arm of issue one is whether the 3rd Appellant, the Governing Council of University of Lagos (hereinafter referred to as Governing Council) or counsel acting under S17 of the University of Lagos Act can suspend the Respondent without first hearing his own version of the allegation exercised a judicial functions and whether the question of fair hearing arisen.
It is the submission of the Appellants that the 3rd Appellant in suspending the Respondent the council acted within the provisions of S17 of the University of Lagos Act (hereinafter referred to as Act). The Respondent contention is that the prohibition was an infraction of his right to fair hearing. The determination of this issue calls for a careful construction of the provisions of S17(3) of the University of Lagos Act in order to ascertain if the Learned Trial Judge acted judicially and judiciously in declaring that the suspension of the suspension of the Appellant null and void. For purpose of emphasis and elucidation I reproduce relevant subsections of the Act as follows:
“S17 (1) it appears to the counsel that there are reasons for delivering that the deputy vice-chancellor, the provost of a college or any other person employed as a member of the academic or administrative staff of the university or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the function of his office or employment the counsel shall –
(a) Give of those reasons to the person in question;
(b) Make arrangement –
(i) For a joint committee of the counsel and the senate to investee the matter, where it relates to the deputy vice-chancellor, the provost of a college, or the registrar, and to report on it to the council, or
(ii) For a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.
And if the counsel, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so removed him by an instrument in writing signed on the directions of the council.
(2) it shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use to his best endeavours to cause a copy of cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.
(3) If it appears-
(a) In the case of vice-chancellor, to the council;
(b) in the case of the deputy vice-chancellor, the provost of a college or any other person employed as mentioned in section (1) of this section, to the vice-chancellor,
that the person in question should be removed from his office or employment on either of the grounds mentioned in the said subsection (1), the councilor, as the case may be, the vice-chancellor may by a notice signed un the directions of the councilor by the vice-chancellor, prohibit him from exercising the functions of his office or employment with a view to his removal; and on exercising his powers under this subsection the vice-chancellor shall forthwith refer the case to the council, and the council shall give such directions in the matter as it thinks proper.
(4) Nothing in subsection (3) of this section shall be construed as affecting a person’s entitlement to the employments of his office or employment during the period of any prohibition imposed in pursuance of that subsection.
(5) Nothing in the foregoing provisions of this section shall apply to employments of such descriptions as may be designated for the purposes of this subsection by statute or by regulations”. (Underlining mine)
The principles governing the interpretation of constitutional or statutory provisions are well settled. It is the duty of the court whilst construing the statutory provision to have regard to basic principles depending on the words and phrases used in the statute. It is a cardinal principle of the rule of statutory interpretation which is aimed at ascertaining the true intention of the legislature that where the words used in an enactment are clear and unambiguous they should be accorded their ordinary and grammatical meanings without any colouration. The courts function in such circumstance is to interpret the provision by merely declaring the legislative intention of the legislature from the actual words used therein. See Ugwu v. Arurume (2007) 31 WRN 1 at 60 – 61, Adejumo v. Governor of Lagos State (1970) 1 All NLR 183.
Therefore, where the provisions of a statute are clear and unambiguous the court must give those provisions their liberal and ordinary interpretation. See Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 SC.
Equally, it is imperative when interpreting a section of an Act to read the entire subsections together in order to discover the intention of the legislator in enacting the said provisions under that section. See Odutela Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt. 994) SC 321, Agbaje Y. Fashola (2008) 6 NWLR (Pt. 1082) CA 90. In the instance case S17 of the University of Lagos Act has three subsections. When a section has more than one subsection all must be read carefully to ascertain whether it should be interpreted conjunctively or disjunctively in line with the principle of construction of statutes with many subsection. See Mobil Oil (Nig.) Plc v. IAL 36 INC SC 146 ratio 11.
The governing words which calls for critical perusal is the phrase “if it appears”.
This phrase is the opening paragraph of S17 (1) and S17 (3) of the Act. By virtue of S17 (3) of the Act, the council and the Vice Chancellor has the power to determine whether to suspend the Vice Chancellor or an academic or administrative stair of the University.
The words “if it appears” to the councilor Vice Chancellor whether the Deputy Vice Chancellor, Provost or any other person employed as a member of academic or administrative staff of the University is to be removed from his office on ground of misconduct or inability to perform the functions of his office or employment imports same clement of discretion on the part of council with the limitation not to consider extraneous matters which ought not to arise in holding a view. Thus the phrase suggests subjectiveness though in reality requires exercise of some objectiveness, in effect the view taken should be reasonable in the light of facts. The reason is obvious in the assessment by councilor Vice Chancellor for “it to appear”, that there is need to suspend” the view must be based on some reasons. At that stage it does not matter if the reason is credible or not but the reasons must be fair and founded on some obvious practice or rules of the office which is fundamental to the administration of the institution.
Lord Denning in Breen v. Amalgamated Engineering (1971) 2 QB said. If the rules set up Union & Others “Domestic body and give it a discretion, it is to be implied that the discretion must be exercised fairly even though its functions are not judicial or quasi judicial but only administrative still it must act fairly and should it not do so the courts can review its decision”. See also H. K. (An Infant) 1967, QB 617.
Therefore the power to suspend conferred on councilor Vice Chancellor is limited by the phrase “if it appears” the classified office is enjoined being a statutory power to reflect fairness holding the view that “it appears.” See Onuzulike v. C.S.D. Anambra State (1992) 3 NWLR (Pt. 232) CA 791. In Adegbonro v. Akintola (1963) AC 614. The law lords on construing the word “if it appears to him” in S33 (10) of the Western Nigeria (Constitution) Order in Council 1960 S1 1960 No 1652 (Schedule IV) said in the Privy Council:
“There was nothing either in the scheme or provisions of the Constitution of Western Nigeria which legally precluded the Governor from forming his opinion on the basis of anything but votes formally given on the floor of the House. By the use of the words ‘it appears to him’ in section 33(10) the judgment as to the support enjoyed by a Premier was left to the Governor’s own assessment and there was no limitation as to the material on which he was to base his judgment or the contacts to which he might resort for the purpose. Accordingly, both the questions referred to the Federal Supreme Court should be answered in the affirmative”.
It is the submission of the learned counsel to the Appellant that the resolve of the governing council to suspend the Respondent under S17 of the Act was not exercising a judicial function and not a legal authority to determine questions affecting the rights of the Respondent.
The power of the governing council of the University of Lagos under S17 (1) of the Act is a statutory disciplinary power, to remove and discipline an erring academic, administrative and professional staff of the University. It is the governing council that has a final say on the final right of the Respondents as relates to the termination or dismissal from employment. The decision to suspend cannot be a final decision on right of Respondent.
S17 (1) (c) used the word prohibition. Prohibition in the Blacks Law Dictionary means “A law or order that forbids a certain action”. It is normally not a final order it means not less than stop working until further direction. The word suspension as defined in Longe v. FBN Plc (2006) 3 NWLR (pt. 967) 228CA means “a temporary deprivation cessation or stoppage of or from the privilege and rights of a person”.
From this definition the two words are interchangeable and have been so addressed by learned counsels before the trial court and this court. The power to prohibit or suspend all academic or administrative staff of 1st Appellant is regulated by S17 (3) of the Act.
The power is domained on the council or the Vice Chancellor. The con in which the word “may by a notice” as used in the Act also calls for construction. This is necessary because the word “may” be able to be equivalent in certain con to the word “shall”. See Ifezue v. Mbadugha (1984) 1 SCNLR 427. It is imperative therefore to construe the word in the con in which it is used. See Kamba v. Bawa (2005) 4 NWLR (Pt. 914) CA 43.
The word “may” as used in S17(3) is discreatory and not mandatory. It cannot be construed to remove the discreation conferred on the Vice Chancellor or Council to prohibit the officers mentioned therein when necessary it must be construed in the con used. See Afskuld v. M. U. Sealion (2006) 5 NWLR (Pt. 973) CA 286. Furthermore, the use of the phrase “as the case may be” refers to the designated circumstance under 17(3) when the council decides as it relates to Vice Chancellor or when the Vice Chancellor acts as it involves academic or administrative officer.
Learned counsel to the Respondent addressed the court extensively on whether the councilor the Vice Chancellor has the exclusive power to suspend the Respondent. This issue did not arise from the 4 grounds of appeal filed by the Appellant nor is there a Notice of Intention or valid cross appeal filed by the Respondent.
Furthermore, the Respondents case as averred in 32 paragraph affidavit in support of the Motion on Notice filed 24th July, 2001 did not raise a complaint on who issued Exhibit 1 the Notice of Prohibition. I refer in particular to paragraphs 4, 5, 6, 14 and 20. This paragraph captured the crux of the Respondent complaint in the trial court as it relates to suspension. Although in the grounds in support of the relief set out in the statement accompanying the application (See pg, 85 of the record of appeal) under ground 3 the Respondent stated “the Respondents did not follow the procedure of suspension contained in the regulations and law that established the University of Lagos”. He did not set out the procedure in question that was not complied too in his affidavit His complaint is that he was not heard which he set out on ground 2 in the accompanying statements to the Motion on Notice. Grounds for Reliefs cannot be equaled to evidence.
The essence of setting out the Grounds is to put a party on notice the grounds for the relief sought. The party is still enjoined to lead evidence to support the grounds. In the absence of same there is no evidence on that issue. In the instance case, the Respondent did not adduce affidavit evidence to support ground 3. There is no evidence from the records that leave was granted to Respondent neither to the further evidence nor to so argue in the court. Any issue that does not arise from the pleadings of the parties or affidavit evidence in the trial court cannot be raised in any of the grounds of appeal and cannot be argued without leave of the court. See Ado v. State (1986) 2 NWLR (Pt.24) 581, Fadiora v. Gbedebo (1978) 3 SC 219 and Bamgboye v. University of Ilorin (2001) FWLR (Pt. 32) SC 12.
I must not fail to observe that the question of who can prohibit an academic staff under S17 (3) is a fundamental statutory provision and must be specifically raised as a defence by way of cross appeal. In the instance case, the Respondents having not raised that issue in a cross appeal or intention any attempt to delve into same will amount to an academic question which is not the function of this court. See Eperokun v. University of Lagos (1986) NWLR (Pt. 34) 164 at 179 and Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710 at 728.
Consequently the submissions of learned counsel to the Respondent in his brief in paragraph 5.09 – 5.11 is not founded on the issues distilled in this appeal. What then is the nature of the emergency meeting of the council of the 1st Appellant held on 26 January 2001, Did the council exercise a judicial function or mere administrative meeting? A judicial function envisages a body to hear a matter or cause. The word “hearing” presupposes that there will be evidence and oral submissions tendered as well as written presentations. The sitting of council on 26 June, 2001 was described on the title as a “meeting”. Meeting is defined in the Blacks Law Dictionary, 8th Edition by Bryan A. Garner: “The gathering of people to discuss or act on matters in which they have a common interest.”
The deliberation in the meeting of 26 January 2001 cannot be described as a hearing. I refer to page 272 to 276 of the record of appeal. Part of the minutes of the meeting on page 272 I reproduce “these publications tendered to lower the corporate image and estimation of the University in the minds of the right thinking members of the public”. This comment followed reference to some cuttings from newspapers and magazines set out in the minutes. The chairman called for comments after informing members of the council their power under S17 of the Act and after deliberation on the issue the chairman then commented and I quote:
“The administration had handled the mailer properly and that if the professors concerned were level headed, they ought to have accepted the reconciliation mares by the various committees. He drew the attention of the members to the provisions of S 17 of the University of Lagos Act (as amended) and expressed the view that there seemed to be misconduct by scandalizing the University of Lagos”
The use of the word “there seemed” by the chairman is not conclusive that there is misconduct. This statement cannot to a reasonable man mean a finding of guilt. The chairman merely expressed a view it was not a final determination of the issue whether the Respondent was guilty of misconduct. The council in that meeting from the minutes did not adjudge the Respondent guilty for misconduct. The discussion from the minutes reflected fairness, the decision to investigate removes inference of final determination of the issue.
The Learned Trial Judge in his considered judgment referred to Exhibit 1 and held:
From the above it was very obvious that Exhibit 1 was the outcome of the emergency meeting reproduced above. It is a rule of natural justice that no one should be condemned unheard, it seems to me that the Applicant herein has not been heard from before Exhibit 1 was issued. There is no doubt that Exhibit 1 was carried out by the governing council and thus was before the Applicant was ever called to defend himself.’
For full elucidation and emphasis I reproduce Exhibit 1:
“Ref. No.: AD/REF/1932/Vo1.II/
Prof Luke Uche,
Department of Mass Communication,
Faculty of Social Sciences,
University of Lagos,
Akoka.
Dear Prof. Uche,
PROHIBITION FROM EXERCISING THE FUNCTIONS OF YOUR OFFICE
This is to inform you that the Governing Council of the University of Lagos at its meeting of 26th January, 2001, considered the report that academic works in your department have been hindered and the various publications that you have caused to be published in the various mass media in respect of the misunderstanding between your good self and Professor Ralph Akinfeleye. By the publications you have scandalized and embarrassed the University as such publications have adversely affected the corporate image of the University. All these make it appear to the Governing council that there are reasons to believe that you should be removed from your office or employment on the grounds of misconduct.
In view of the foregoing, the council has directed that a Committee of Senate be set up to investigate the matter and to report on it to the Senate and to the Council. The council further directed that with immediate effect, you be prohibited from exercising the functions of your office or employment until further notice.
Please note that the prohibition shall not affect your entitlement to the emoluments of your office or employment during the period of prohibition.
Yours faithfully,
O. O. Okewumi
Ag. Registrar and Secretary to Council”
The Learned Trial Judge relying on Exhibit I found that the Respondent was not heard but she still failed to specifically determine the effect of same. In effect, whether it affected the prohibition of the Respondent or whether the Respondent was entitled to be heard before suspension. This is critical bearing in mind that the court below in the same judgment still held that the suspension was in order to facilitate investigation but at the end of analysis of evidence and submission declared the suspension null and void and of no effect. The finding of the court below that the suspension was in order to facilitate investigation does not complement the final decision of declaring suspension null and void. If there were other reasons it was not stated by the Learned Trial Judge and this court cannot fish around nor speculate on other reasons if any that lead to such a final decision which is not consonant with the finding. The court below found that the Respondent should be heard before Exhibit 1 was issued. What then is the basis, in Exhibit 1, the key phrase I quote:
“By the publications to have scandalized and embarrassed university as such publications have adversely affected the corporate image of the university”.
This statement very inelegantly drafted as reflecting the minutes of the emergency meeting of council still did not reflect Respondent was adjudged guilty of misconduct.
This is because the following statement used the phrase “all these make it appear”. This phrase is not conclusive; it is mere expression of view his own based on copies of publication until contradicted. The publications referred too are documentary in nature and speaks for itself.
I cannot conceive of any element of bias inferable from the decision of council on 26th January 2001 to prohibit. There is no room for suspicion of bias when facts are in a document. It is either they were published or not published. The Respondent in his affidavit did not deny the existence or authenticity of the said publication. See Bamgboye v. University of Ilorin (2001) supra. The council sitting that 26 January solely not on Respondents matter.
S17 (1) has provided for the Vice Chancellor or Governing Council to observe the ordinary rules of natural justice by giving notice of the reason to the person in question and setting an investigation committee to investigation.
The Governing Council in the case involving the Deputy Vice Chancellor Provost, or any other person employed as a member of academic or administrative staff of the university under S17(1)(a) must notice of the reasons for delivering the person should be removed on ground of misconduct or inability to perform the function of his office. This notice will then be followed by the Governing Council making arrangements for a joint committee of council and senate when investigation relates to allegations against Deputy Vice Chancellor, Provost of a College or the Registrar who will report to council. In the case of allegation against other members of staff of the University, the council must make arrangement for a senate committee to investigate the matter and report to senate and council. Whilst under S17 (1) (c) there must be an arrangement for the person in question or his representative to be afforded an opportunity of appearing and being heard by the senate Investigation committee.
Clearly, S17(1) (a) (b) & (c) prescribed the observance of the principle of fair hearing and non-compliance to same will certainly amount to breach of same.
Once the case is referred to the Governing Council, S17 (1) of Act comes into play. In other words, the power of prohibition precedes the power to appoint joint committee or senate investigation committee. The prohibition is not mandatory it is directory.
Two of the issues that arose in the court below were whether the Senate Investigation Committee complied with the principle of fair hearing during their proceedings, and the construction of S17 of the University of Lagos Act, the application was based on grant of prerogative writ. With the specific relief for certiorari and prohibition, the orders of certiorari or prohibition may issue whenever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of that legal authority. See R. v. Electricity Commissioners (1924) 1 k.B 171 204 – 205 per Lord Arkin. In the present case, S17 (1) (b) is the foundation of the authority to constitute a senate investigation committee. It is not a statutory authority for which certiorari nor may prohibition issue. The statutory rule under S17 (1) (c) required that the Respondent be heard. The Governing Council was acting in pursuance of lawful authority when he directed that notice of allegations be given to the Respondent. What then is the scope of the power of the court below in the application commenced by way of Judicial Review? The SC in Military Government Imo State v. Nwauwa supra set out principles to be borne in mind by the court below or by a reviewing court amongst which is 3(g) I reproduce:
“What the court is concerned with is the manner by which the decision being impugned was reached. It is its legality not its wisdom that the court has to look into for the jurisdiction being exercised by the court is not an appellate jurisdiction but rather a supervisory one”.
In the court below the application for judicial review was brought pursuant to order 47 of the Federal High Court Civil Procedure Rules 2000. Order 47 Rule 9(4) of the rules stipulates as follows:
“4. Where the relief sought is an order certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court”.
By the Provision under Order 47 Rule 9(4), the court has to be satisfied that there are grounds for quashing the decision to which the application relates. In fact the trial court may quash the decision and remit same back to the authority or tribunal to reach a decision in accordance with the findings of the court.
I have carefully scrutinized the Judgment of the Learned Trial Judge and I find no reason given by her for the final decision made in granting the reliefs of certior and prohibition in the court below. By Rule 9(4) the court must be satisfied that there are grounds presented. These grounds must be set out and the findings of the court before granting the order, reasoning before in effect the arriving at the decision. It is settled principle of law that an appellate court will not interfere with a discretionary order of a trial court merely because it would have exercised the discretion differently, thus for the appellate court to decide on whether the discretion was wrongly or rightly exercised the consideration of the court must be clear and pronounced. The Learned Trial Judge is bound to follow due process of law in all proceedings. See A. F. Skuld v. MU Sealion (2006) 5 NWLR (Pt. 973) CA 286.
Usually an appellate court will not interfere with the discretionary order of the trial court. It is only when the discretion is wrongly exercised or that due weight was not given to relevant consideration the order may be reversed. See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156. See also A. F. Skuld v. N.V Scalion (2006) 5 NWLR (Pt. 973) CA 286. It is thus a well established principle of law that all judicial discretion must be exercised according to rules of law and justice. See M.V. Lupex v. NOC & S Ltd. (2003) 15 NWLR (Pt. 844) SC 469.
The trial court must have full regard to all the circumstances of the case. The unfetter judicial discretion of the court is only exercised when University Council failed to carry out the statute & tort procedure set out for removal. See Olaniyan v. University of Lagos (1985) 2 NWLR SC 599. I find in favour of Appellant under issue 1.
The Learned Trial Judge in the instance case was in error when she failed to make findings and consider the principles for granting the prohibition and certiorari order detailed in the oral submissions of counsel before she granted reliefs (2) & (3) she therefore failed to exercise her discretion judicially and judiciously. There is nothing ex-facia on the judgment of the court below wherein the Learned Trial Judge made pronouncement or gave reason for granting the order of certiorari.
The detailed submissions of the learned counsels on Bias as relates to the senate investigation committee, I have not considered because it was not considered by the court below not withstanding that the learned counsels for the respective parties addressed the court extensively on the principle of Bias and fair hearing in relation to the report. The decision of the Learned Trial Judge anchored solely on issue of suspension which is one of the reliefs sought which order I have found did not contravene the principles of fair hearing by virtue of the provision under S17(3) of Act. There is no specific statutory provision on fair hearing to follow in prohibition/suspension of the academic staff.
Under issue 2 whether the Learned Trial Judge correctly treated the issue of criminal allegation and the invitation by the police in the matter having arisen after the filling of the application and when no criminal allegation was made against the Respondent before the senate committee. The Learned Trial Judge in his judgment of 8 November, 2004 on page 360 of the records of appeal held:
“I hold that the criminal offence having been referred to the police after due investigation by the senate committee that the police should be allowed to take the necessary steps by charging the matter to the court which has the jurisdiction to entertain criminal matters”.
There is no evidence from the proceedings in the senate investigation committee that there was a criminal offence in effect a charge preferred against the Respondent nor any evidence a criminal offence against the Respondent was referred to the police after senate committee investigation to warrant the Learned Trial Judge decision that the police should be allowed to take the necessary steps by charging the matter to the court which has the jurisdiction to entertain criminal matters. The scope of the courts power under judicial review is to consider the manner by which the decision being impugned was reached and not to direct on what the Appellants should do by referring to the police. See Military Governor of Imo State v. Nwauwa supra. The relief before the trial court was limited and specific. Where a party has not asked for a relief from a trial court the trial court has the power to only make consequential order, this is limited. In the instance case, the ambit of the power under judicial review is limited.
The supervisory Jurisdiction of the trial court is concerned with the legality and not with the merits of the decision. See Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292 where Ogundare JSC said:
“In a judicial review the court must not stray into the realms of appellate Jurisdiction for that would involve the court in a wrongful usurpation of power”
The Learned Trial Judge was in error when she described the allegation before the Senate Investigation Committee as criminal offence. The allegations once founded on the internal administration and functioning of the University as in this case is an internal affair until the Governing Council directs the involvement of an outside institution. See Osagie v. NNB Plc (2005) 3 NWLR (Pt. 913) CA 513.
On the totality of the foregoing, I am of the firm view that this appeal has merit. I therefore uphold the appeal and set aside the Ruling and order of the court below made on 8th November 2004.
Other Citations: (2008)LCN/2920(CA)
