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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O.Y ANUWE Date: October 07, 2015 Suit No: NICN/OW/67/2014 Between Dr. (Mrs.) Carol C. Obinwanne --------- Applicant AND Federal Polytechnic Nekede, Owerri --------- Respondent Representation: N. H. Nwankwo for the Applicant K. I. Uduma for the Respondent RULING/JUDGMENT This action was commenced on the 5th day of September 2014 by way of motion on notice dated the 4th day of September 2014, wherein Counsel on behalf of the Applicant prayed this Court for an order of certorari to quash the following: 1. The decision of the Respondent made against the applicant on the 26th day of June, 2014 as contained in the letter addressed to the applicant referenced FPN/R/P/SS/983/200 dated 1st day of September, 2014 and served on the 3rd day of September 2014, purporting to demote the applicant by one grade level. 2. The Respondent’s letter of Query for an alleged misconduct addressed to the applicant referenced FPN/R/P/SS/983/199 dated 1st day of September, 2014 and served on the 3rd day of September 2014. 3. An Injunction restraining the respondent, its servants, officers, agents or any other person who may be claiming to act in its stead, pending the hearing and determination of this application. The grounds upon which the application is brought are: 1. That the Respondent in issuing the letter particularly that on demotion acted contrary to the provisions of the statute regulating the applicant’s employment with the Respondent. 2. That the person who purportedly acted on behalf of the Respondent on those letters has no such authority to do so, nor is there an express authority to so delegate such power or authority. 3. That the Respondent is bias. 4. That the query on misconduct issued against the Applicant will give rise to a double jeopardy on the applicant since it emanated from the same set of facts as the letter of demotion. 5. That the letter of query dated 1st September has a predetermined outcome, to dismiss the applicant. In support of the application, the applicant deposed to a supporting affidavit of 45 paragraphs upon which the applicant placed reliance. In the accompanying written address; defendants’ counsel articulated two issues for determination: i. Whether the respondent can lawfully demote the applicant in the circumstance that it has done. ii. Whether the respondent can seek to punish the applicant twice on the same set of facts. On issue one, counsel submitted that the answer is in the negative and went further to state that there was no misconduct on the part of the applicant. There was no dereliction of duty as the applicant dutifully and diligently exercised her duty on the 12th and 13th October 2013 as demanded of her. In the case of P.C. Mike Eze vs. Spring Bank Plc. (2012) All FWLR (Pt. 609) pg. 1076, the Supreme Court defined gross misconduct as: “a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Also, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee”. In the instant case, there are no facts to support the accusation of misconduct or gross misconduct to warrant the purported act of demotion. Secondly the employment of the applicant is governed by statute, the Polytechnic Act Cap F17 Laws of the Federation of Nigeria Vol. 6. There is nothing in the Act or statute that provides for a demotion. The courts have consistently held that where a statute provides for a particular method of doing something or performing a duty, that method and no other must be the one to be adopted. See the case of CCB (Nigeria) Plc vs. A.G Anambra State (1092) 8 NWLR (Pt. 261) pg. 528; also in the case of Atamah vs. Ebosele (2009) All FWLR (Pt. 473) pg. 1385 at 1440 the same principles of the law was applied. This is what has become known as an employment with Statutory Flavour. In the case of Federal Medical Centre Ado-Ekiti & 2 Ors vs. Omidiora Kolawole O. (2012) All FWLR (Pt. 653) pg. 1999, employment with statutory flavour was defined as “one where the procedure for employment and discipline are governed by statute. The conditions of service could determine whether the termination of employer’s employment was done following due process. In the instant case, the respondent’s letter of appointment clearly stated that she was employed under the Public Service Rules (PSR), therefore the respondent appointment had statutory flavour and the trial court was right to have held so.” Counsel submitted that the employment of the applicant is with a statutory flavour and therefore the procedure of discipline must follow that laid down by the statute or the Polytechnic Act. The letter to demote the applicant not being provided for by the Act is unlawful; it ought to be quashed by the Court. Also, the said letter of demotion and the query like in all other correspondence in this case were signed by one Mrs. E.C. Anuna. It is the contention of counsel that the said Mrs. E.C. Anuna is neither the Rector nor the Polytechnic Council who were specifically designed to act in matters of discipline on the category of staff of the applicant. The Rector does not have the power to delegate and therefore cannot delegate that function to a Mrs. Anuna or any other. Assuming, that the act complained of is valid, the correspondence to the applicant cannot be validly authored by said the Anuna not being the Rector. In the case of Onyekwu vs. the State (2002) 12 FWLR (Pt. 681) pg. 256 at 266, it was held that where there is no express clause in a law which enables a person to delegate authority given him by the law, no such delegation can be done or permitted. In Sanusi vs. Ajewole (1992) 11-12 SCJN (Pt. 2) pg. 142 at 154 it was also held that the exercise of a statutory power can only be exercised within the limit of the law. From the foregoing, counsel urged the court to quash the purported letter of demotion dated 1st September 2014, and the letter of query dated 1st Sept 2014 as been illegal, unlawful, null and void and of no effect. The issue number one, we submit, therefore ought to be answered in the negative, no such power of demotion exists. With respect to the second issue which is whether there can be double punishment upon one act or same set of facts, Counsel submitted that the law frowns against double jeopardy. The letter of query purportedly issued when there was another one purportedly punishing the applicant cannot stand. It amounts to punishing the applicant twice, as they both arose from the same set of facts on the same day; and it is in law called double jeopardy. Also, the actions of the respondent to the applicant evince malice. This is so because Dr. Mgberekpe who was the second on call despite all his derelictions was not queried. In conclusion, counsel urged the court to do substantial justice in this matter, to see through the malice, vindictiveness, witch hunt and reckless impunity of those who act for the respondent and quash these two letters of 1st September 2014 and thereby save the job of a competent hardworking applicant. In opposition to the applicant’s application, the respondent filed a16-paragraph counter affidavit deposed to by Amanze Honourine Nneka, (Mrs.) on 12/11/2014. In the accompanying written address, counsel adopted the two issues raised by the applicant for determination in this suit. Counsel submitted that the F.P.A did not itemize misbehaviours by forms but rather classified all official misbehaviours as “gross misconduct”. However, the P.S.M contains a list of form of misbehaviours and classified them in the form of misconduct. See paragraphs 1.3.18, 1.3.9 P.S.M. The particular misconduct for which the applicant is punished, which is absence from or dereliction of duty is vividly contained in the said Rules. See paragraph 1.3.19 P.S.M. It is therefore submitted that the applicant committed an infraction of the rules of her engagement which have been classified by the above mentioned rules as misconduct when she abandoned call duty obligations and closed from work before the closing hour. According to Counsel for the Respondent, from the foregoing, it has been amply shown that the misconducts for which the applicant was punished are provided for in staff rules, so also the punishment. The applicant was therefore wrong to have concluded on this point that the absence from duty was not misconduct under the terms of the applicant contract. It is contended on this ground that the applicant was mistaken and misguided on her argument about the scope of the rules of her employment despite having been furnished with those rules. It is the contention of counsel that the applicant similarly misconstrued the wordings and content of the letter which conveyed her demotion. That said letter was unequivocal in stating that the writer was “directed” to convey the decision of the Governing Counsel demoting the applicant. It did not state that it was the writer that demoted the applicant. It was the same Deputy Registrar (S.S.P) who conveyed the decision of council to demote the applicant which also in like manner conveyed the decision of the Council in which the offer of employment was made to the applicant. If the conveyance in respect of the decision to demote ineffective, it is contended that the conveyance of the decision to “appoint” the applicant which was done through same medium, must also be ineffective, in which case there was no valid employment relationship between the parties ab initio. It is contended by counsel that when Administrative Officers communicate corporate decisions, such act of communication does not make such officials makers of the decision so communicated. This is even more so when they so expressly indicated that they were “directed” to make the said communication thereby repudiating any claim to personal ownership of the decision itself. It is submitted that in such a situation, there is no functionary delegation or sub-delegation of functions because constitutionally, the act or decision of the official is that of that of the functionary and not that of the administrative officer communicating same. This is what is known in Administrative law as the “Carltona Principle” see Carltona Ltd. vs. Works Commissioner (1943) 2 All Authority (1990) 2 NWLR (Pt. 135) 688 at 718 – 719 H – B. Similarly, in another case where the applicant contended based on the same maxim, delegatus non-potest delegare, that because his letter of termination was signed by the Registrar on behalf of the provost instead of the Chairman of the Governing Council of the Institution, the said termination becomes vitiated. The Court of Appeal held, over ruling the contention that “a government functionary may normally act through departmental officials without infringing upon the maxim”. That when function entrusted or delegated to a functionary are performed by an off employed in the Department headed by that government, there is in law no functionary delegation because constitutionally, the act or decision of the official is that of the functionary – See Paul Uhunmwangho Simeon vs. College of Education Ekiadolor, Benin (unreported) suit No. CA/B/103/2006, Court of Appeal, Benin Division delivered on Wednesday 9th July, 2014. See further Law Pavillion 2014, LPELR 23320, CA. Finally, counsel submitted that the function performed by mere “writing” to communicate the decision of Council by the Deputy Registrar of the respondent, is administrative. That it can never be classified as “judicial” or quasi- judicial. That function of communicating the Council’s decision by letter writing is administrative. That the maxim does not apply where the function involved is administrative because it does not involve exercise of discretion. See N. N. vs. Trinity Mills Insurance Broker (2002) LPELR (7142) 1 at 14. In this case therefore it is argued that the maxim does not apply and the status of the communicated the council decision did not invalidate the decision. With respect to the second issue, counsel submitted that this issue relates to the query which the respondent served the applicant which she is yet to reply. The query contextually demanded for explanation why the applicant should not be punished for disobedience of the Department’s instructions that she should not tape the proceedings of the council committee hearing her matter. The applicant initially made the request for such a video coverage and had even made same in one of the reliefs in her discontinued suit. Defiantly, despite the refusal of the committee to grant such a request, she appeared before the committee with a pen containing a hiding electron device that recorded the sitting of the members both visual and audio. It is argued that this alleged misbehavior constitutes a different misconduct from that which she was demoted. Put conversely, that the demotion arose from a different misbehavior from the misbehavior to which this query related. The present query is on disobedience of lawful orders while the misconduct for which she was tried and punished is absence/dereliction of duty. Disobedience to lawful orders and absence/dereliction of duty are contained in this P.S.M as distinct and different misconducts. See paragraph 1.3.19 P.S.M. It is submitted that it is wrong in law to punish the infraction of one based on the evidence received and trial conducted on another. That in law, each should be independently investigated and tried. That the allegation on misbehavior involving disobedience of lawful instructions had not been investigated nor tried and therefore cannot be validly punished along with that on absence/dereliction of duty neither would the punishment for the latter be substituted for the former. The applicant’s argument on this score is therefore misplaced. Also, the issue of bias does not arise in this case. The Chief Medical Director being second on call was not supposed to be physically on duty. He did not also contravene any rule by his physical absence on the said day. Moreover, his physical absence or presence on campus has nothing to do with applicant’s absence and could not have mitigated applicant’s conduct in the circumstance. In the final analysis, the applicant has not established the presence of any ground for certiorari to lie to quash the decision demoting her or querying her. The respondent had in so doing acted within the bounds of law regulating its contract of employment with the applicant, it did not act ultra vires, there is no error shown on the record of its proceedings. Patently, the two letters sought to be quashed contains no error on its face and none was pointed out by the applicant, the respondent gave ample opportunity for hearing to the applicant before it passed its verdict. Counsel urged the court to deny this application because it is baseless. The applicant placed further reliance on a 25 paragraph further affidavit deposed to by the applicant and filed on the 3rd day of February 2015 in urging the court to grant this application. Counsels to both parties formulated the same issues for determination in this application. The two issues formulated by the applicant’s counsel, and which were adopted by the respondent’s counsel, are- i. Whether the respondent can lawfully demote the applicant in the circumstance that it has done? ii. Whether the respondent can seek to punish the applicant twice on the same set of facts? I am of the view however that a lone issue will determine the issues involved in the application. To that end, the issue to be resolved in this case is whether the applicant has made out a case for an order of certiorari to issue to quash the decision of the respondent contained in a letter dated 1st September, 2014 wherein the applicant was demoted by one grade level and also the letter of query to the applicant dated 1st September 2014. The instant application seeks this court to exercise its prerogative power of certiorari to quash the decision of the respondent contained in a letter dated 1st September, 2014 wherein the applicant was demoted by one grade level and also a letter of query to the applicant dated 1st September 2014. The grounds upon which the applicant brought the application have earlier been set out at the beginning of this judgment but for the effect of emphasis at this point of resolving the application, I shall reproduce them again. The grounds are: a. That the respondent in issuing the letter particularly that on demotion acted contrary to the provisions of the statute regulating the applicant’s employment with the respondent. b. That the person who purportedly acted on behalf of the respondent on those letters has no such authority to do so, nor is there an express authority to so delegate such power or authority. c. That the respondent is bias. d. That the query on misconduct issued against the applicant will give rise to a double jeopardy on the applicant since it emanated from the same set of facts as the letter of demotion. e. That the letter of query dated 1st September has a predetermined outcome, to dismiss the applicant. In the affidavit in support of the originating motion, the applicant stated that she is an employee of the respondent as a medical staff in the department of medical and health services, which employment she said is regulated by statute. She narrated the incidence which led to her bringing this application. According to the applicant, on Saturday 12/10/2013, she was off duty and was to resume at the respondent’s clinic at 4pm that day but she was called at about 8am with instruction to report for duty. She reported for duty by 9am and worked till 5pm when she decided to go home to freshen up for her night duty. On her way home, the nurses on duty called her to inform her of an emergency case. The applicant asked that the clinic ambulance should come pick her up where she was stranded by the road but the nurse told the applicant that there is an instruction that doctors on call should no longer use the clinic ambulance. The applicant eventually found her way to the clinic to attend to the patient but when the patient was not getting adequate treatment due to lack of requisite facilities, she decided to take the patient to the Federal Medical Centre Owerri using the clinic ambulance. On getting to the Federal Medical Centre, she discovered the staff was on strike. She then took the patient to Umezurike Hospital but the patient was not attended to because she had no money to pay to the hospital. The applicant, on her own, managed to resuscitate the patient and at about 10pm when the patient had stabilized, she instructed the nurse and the ambulance driver to return the patient to the respondent’s clinic while she went home. The applicant stated that she did call one Dr. Mgberekpe Ethelberth, the director of the medical and health service, who was also her second on call that night, to notify him but he did not wait to listen to her. While other staff were congratulating her on her efforts on the patient on Monday 14/10/2013, the applicant’s feat appeared not to go down well with Dr. Mgberekpe Ethelberth; the Rector, Dr. (Mrs.) Celestina Ugochi Ngoku and one Dr. Desmond Oparaku, the Deputy Director Medical and health services who summoned her to appear before them. The applicant went on to quote portions of the interaction between her and the panel members. Following this, the applicant was invited to appear before a disciplinary committee vide a memo annexed as Exhibit B dated 14th October 2013. On 26/2/2014, she also got Exhibit C dated 25th February 2014 inviting her to appear before a disciplinary committee and another invitation, Exhibit D dated 3rd March 2014 to appear before the disciplinary committee on the same subject matter. The applicant stated further that it was after the Exhibit D invitation that she filed suit No: NICN/OW/21/2014 for the enforcement of her fundamental human right before this court and she got an interim order for status quo to be maintained against the respondents. Later on, some individuals intervened in the dispute and the applicant was advised to withdraw the suit. As a result, the applicant withdrew the suit and it was struck out on 20/3/2014. She was however surprised to receive another invitation letter dated 10th June 2014, that is Exhibit G, inviting her to appear before the Respondent’s Council Disciplinary Committee on 23rd June, 2014. Upon appearing before the committee, she was accused of the same dereliction of duty in respect of the incidence of 12th October 2013. The applicant said she responded to the accusation and gave her own account of the incidence to the Committee. On 3rd September 2014, however, she was surprised to receive two letters from the respondent both dated 1st September 2014. The letters were annexed as Exhibits H & J. The applicant said that Exhibit H is a query for misconduct while Exhibit J demoted her by one grade level for an alleged dereliction/absence from call duty without permission. The applicant stated that both letters result from the same set of facts and the decisions were taken the same date of 26th June 2014. These are the letters the applicant wants this court to quash in this application. According to her, the contents of the said letters show vindictiveness, malice, and hatred towards her and are only a prelude to her dismissal as she has been reliably informed that her letter of dismissal has already been written. The applicant said that unless Exhibits H and J are quashed and the respondent restrained, she will ultimately be dismissed. The respondent filed a counter affidavit which was deposed to by Amanze Honourine Nneka, (Mrs.), an assistant registrar, legal, of the respondent. She admitted that the applicant is an employee of the respondent and that the applicant’s appointment is regulated by the Polytechnic Staff Manual and enabling statute. It is averred that the respondent acted within the provisions of the statute and rules governing its employment contract with the applicant in demoting and issuing the demotion letter to the applicant. The deponent stated that both the demotion and manner it was conveyed to the applicant are proper in law. The person who conveyed the demotion to the applicant was authorized to do so and the conveyance was only an administrative act and not judicial or quasi-judicial. That the query dated 1st September 2014 was in respect of a fresh misconduct which took place during the investigation and trial of the misconduct for which the applicant was punished with demotion. The applicant was in the habit of doing call duty from the comfort of her home against express regulation and this had endangered lives of students and staff. More also, the applicant had insisted that when on call duty, the clinic ambulance must come to her home whenever there is an emergency to take them to the clinic and bring them home after attending to the emergencies. But the respondent had insisted that clinic staff should not depend on the ambulance to transport them to and from work when they are on call duty. About the 1st October, 2013, the respondent instructed its ambulances to remain on stand-by for 24 hours emergencies at the clinic. The applicant continued to report for call duty and leaves anytime she liked. From the clinic roster the applicant was scheduled to be on her normal duty on Saturday 12/10/2013 from 8am to 4pm and call duty from 4pm to 8am of Sunday, 13/10/2013. On the said Saturday, the applicant came to work by 1.30pm and left about 3pm. At about 5.30 pm, an emergency was recorded at the clinic. When the two nurses on duty first called the applicant over the phone about 5.30pm and informed her of the said emergency, she instructed them to bring the patient in the clinic ambulance to meet her at Ezem hospital. The patient was returned to the clinic at 10pm without receiving treatment from any of the 3 hospitals the applicant took the patient to. The applicant went home by 10pm, ending her call duty which ought to end by 8.am of the next day. That on 14/10/2013, the respondent’s Management received report of the patient on hospitalization, report on the applicant’s truancy to call duty, the previous query to her and her reply. The respondent management referred the aforesaid report for investigation to a standing staff disciplinary panel headed by Mr. Desmond Oparaku. The Management Committee duly invited the applicant vide memo dated 14/10/2013 and she duly appeared before it. The Committee also heard all the parties to the events. At the end of its hearing, the committee indicted the applicant for truancy to call duty. The report was presented to management which in turn referred it to the Council because, the applicant being a senior staff, only the council of the respondent can determine case of misconduct against her. Letters dated 25/2/2014 and 3/3/2014 were invitations from the council for hearing of the indictment which the applicant ignored. During the Committee sitting on 3/3/2014, it received a letter from the applicant’s counsel where conditions for the applicant’s appearance before the committee were tabled. The conditions are that she be allowed to have legal representation of her choice at the hearing; she be allowed to video tape the proceedings as it is going on and that all documents relating to allegation and to every step taken by the respondent on it before then be given to her in advance. The applicant insisted that the conditions be met first before she will appear. When the committee considered the demands, the request to video tape the proceeding was rejected and it was noted that the applicant had been given copies of documents containing the allegations against her. The matter was adjourned to 4/3/2014 and the date was communicated to the applicant. On 4/3/2014, the applicant sent words across to the committee that she was sick and could not appear that day. It was that same day the respondent was served an order of interim injunction from the National Industrial Court restraining the respondent from taking further action on the matter pending the hearing of a motion on notice. In obedience to the order, the committee suspended hearing on the matter to 23rd June, 2014 and the applicant was given notice of the hearing date. The applicant appeared before the council committee on 23/6/2014 with her representation already typed out. The applicant indicated that she understood the allegation against her and presented her defence in writing and also made additional oral submissions and stated that she had no witness to call other than what she presented. During the proceedings, the applicant was discovered having with her a hidden pen with both audio and visual recording devices with which she was recording the members and the proceedings despite the committee’s refusal of that request. This act of disobedience of lawful orders by the applicant created a new infraction different from the one under trial. The query dated 1/9/2014 is in respect of the second infraction. The query does not amount to double jeopardy because the allegation of unauthorized recording of the committee proceeding is separate from the indictment for dereliction of duty. The query referred to in paragraph 43 of applicant’s affidavit is not prelude to her dismissal but is intended to give her prior notice of the allegation contained in the query and afford her the opportunity to defend herself by stating her own side of the story. Both parties also filed further affidavits. I shall make reference to relevant facts from the further affidavits when necessary. Certiorari is one of the prerogative orders whose function is to ensure that inferior courts or anybody entrusted with the performance of judicial or quasi-judicial functions keep within the limits of the jurisdiction conferred upon them by the statute which created them. An order of certiorari will lie to remove into the High Court for the purpose of being quashed, any judgment, orders, conviction or other proceedings of such inferior courts or other body made without jurisdiction or in excess of jurisdiction. See AWE vs. G.M., OSUN STATE WATER CORPORATION (2002) FWLR (Pt. 91) 1651 at 1661. Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially or in accordance with a laid down procedure, acted in excess of their legal authority, certiorari will lie to quash the offending act or decision of such body or persons. See EKPO vs. CALABAR LOCAL GOVERNMENT (1993) 3 NWLR (Pt. 281) 324 at 347; UNIVERSITY OF UYO vs. ESSEL (2006) All FWLR (Pt. 315) 80 at 101. Therefore, the court will only interfere by way of order of certiorari where the decision of the inferior court or body is unreasonable; there is lack of or exceeded its jurisdiction; acted contrary to natural justice; or there is error on the face of the record of such inferior Court or body. The respondent in this case is a Federal Institution established by an Act of the National Assembly. By the provisions of the establishing statute, the respondent is conferred with powers and authority on discipline of staff and students of the institution. The disciplinary powers include conducting inquiries, constituting panels to investigate allegations of wrongdoing and imposition of sanctions. See Sections 17 and 18 of the Federal Polytechnics Act, LFN 2004. There is no doubt that the respondent acts in quasi- judicial capacity. Its decisions in that respect are therefore liable to judicial orders in the form of certiorari. From the principles of law I have stated earlier with respect to certiorari, the relief of Certiorari is usually available where any of the following complaints is shown in the decision or act of an inferior Court or tribunal or administrative body complained of. That is: (i) Lack of or excess of jurisdiction (ii) Error on the face of record of an inferior Court or tribunal or body (iii.) Breach of the rule of natural justice regarding fair hearing. The complaint of the applicant in this application is two-fold. The first is based on grounds (a) and (b) of the application where the applicant contended that the respondent acted contrary to the provisions of the statute regulating the applicant’s employment when it demoted the applicant vide Exhibit H and that the person who acted on behalf of the respondent on the letter has no authority to do so nor can the disciplinary power be delegated. The 2nd complaint is in respect of the query where the applicant contended in grounds (d) and (e) of the application that the query, Exhibit J, amounted to double jeopardy as it emanated from the same set of facts as the letter of demotion and the respondent has predetermined the dismissal of the applicant by the query. Clearly, the applicant wants this court to quash the decision of the respondent in the letter demoting her and the query served on her and she also gave the reasons for seeking the order in the grounds of the application. It is the applicant’s evidence that her employment is regulated by statute and in his written address, the applicants counsel submitted that the applicant’s employment is governed by the Federal Polytechnics Act which Act did not provide for punishment by way of demotion. It is counsel’s submission also that the person who signed the demotion letter is neither the Rector nor the Respondent’s Council who are statutorily empowered to act in matters of discipline of staff of the applicant’s category and both of them cannot delegate the power to the writer of the letter. The applicant exhibited and marked the demotion letter Exhibit H to her affidavit. The content of the applicant’s Exhibit H is as follows: RE: A CASE OF GROSS MISCONDUCT I have been directed to convey council decision at its meeting held on 26th June 2014, demoting you by one grade level for dereliction/absence from call duty without permission. This decision was sequel to the hearing by council of a case of unauthorized absence from call duty during an emergency preferred against you. By this directive, you are hereby demoted to the rank of Principal Medical officer on CONTEDISS 13 effective from June 26, 2014. You are hereby informed. Onuaha S.O. (Mrs.) For: Registrar. The sanction imposed by the council of the respondent on the applicant for dereliction/absence from call duty was a demotion by one grade level. The applicant’s counsel has argued that the employment of the applicant is with a statutory flavour; therefore, the procedure laid down in the Federal Polytechnics Act for the discipline of staff of the respondent must be followed. The applicant’s Counsel submitted that the Act did not make any provision for demotion as a punishment for misconduct. As such, the decision in the letter demoting the applicant is unlawful and ought to be quashed. Although the applicant’s counsel did not refer this court to any section of the Act to support his contention, it appears to me he has Section 17 of the Act in mind. I must say it here that the provision in Section 17 of the Federal Polytechnic Act applies to cases of removal or suspension from office of staff of the respondent. A close reading of the section, particularly subsections 1, 2 and 3 thereof reveals that the provision is intended to regulate dismissal, termination or suspension of staff of the respondent. In this instant case, the applicant was not dismissed, terminated or suspended. She was demoted. Clearly, under the Act, punishment by way of demotion is not provided for. As I have said here, Section 17 of the Act regulates only instances of dismissal or termination or suspension. But what of a situation where the council do not have reason to believe a member of staff should be removed from employment? Can the respondent impose a disciplinary sanction of demotion on the staff other than those contemplated in Section 17 of the Act? In order words, is it within the respondent’s power to punish the applicant with demotion? This question must be answered before it can be concluded that there is error of law in the demotion or that the respondent, in demoting the applicant acted outside or exceed its bounds. In paragraph 2 (a) of the respondent’s counter affidavit, it is stated that the respondent acted within the provisions of the statute and rules governing its employment in the demotion of the applicant and in paragraph 15 (j), the respondent averred that the applicant’s appointment is predicated on the Polytechnic Staff Manual and the Act. The respondent annexed the staff manual as Exhibit 2 to the respondent’s further affidavit. The respondent’s counsel did submit that the misconduct of dereliction of duty and punishment by demotion are provided for in the staff manual. I have observed that the applicant did not deny the fact that her employment is also regulated by the staff manual anywhere in her further affidavit. That is to say besides the Act, the staff manual also regulates the applicant’s employment. The content of Exhibit H shows the claimant was demoted “by one grade level” for dereliction/absence from call duty without permission.” Paragraph 1.3.19 of the staff manual spelt out acts which constitute gross misconduct to include “absence without leave”. The disciplinary actions which the respondent may take against any of its staff found guilty of any of the misconducts are set out in paragraph 8.1 of the manual. One of them is “reduction in grade”. The manual proceeded to distinguish which of the punishments is applicable to the category of staff in the senior staff and junior staff category and the punishment which is general to both categories. From the provisions of paragraph 8.2 to 8.16 of the staff manual, I have identified the punishment applicable to each category of staff as follows: i. Senior staff- warning, dismissal, termination, suspension, interdiction, retirement. ii. Junior staff- warning, suspension, dismissal, termination, retirement, downgrade. From the provision, only junior staffs are liable to be downgraded, which term is synonymous with demotion, and the disciplinary power over junior staff is conferred on the Rector. Punishment by demotion or downgrade is not applicable to senior staff. Paragraph 1.3.4 of the staff manual defines a “senior staff” as a staff on grade level 7 and above. Exhibit H shows that the applicant was demoted to level 13. That establishes the fact that she a senior staff as she is above grade level 7. By the provision of the manual, punishment by demotion is not applicable to her level. In the circumstance of this case, it is not permissible for the respondent or its council to choose to demote the applicant. This is because neither the Federal Polytechnic Act nor the staff manual provides for such punishment for staffs in the applicant’s level or category. Therefore, the respondent acted ultra vires when it decided to demote the applicant. Also, this error is clearly shown on Exhibit H which communicated the decision to the applicant. The applicant also contended in one of the grounds of the application that the person who acted on behalf of the respondent in the letters has no authority to do so because the respondent does not have any express authority to delegate its power or authority. In his written address, the applicant’s counsel submitted that the letters were signed by Mrs. Onuoha S.O. who is neither the Rector nor the Polytechnic Council who were specifically designed to act in matters of staff discipline of the applicant’s category. Counsel further argued that both the Rector and the council cannot delegate that power to Mrs. Onuoha. It will appear this issue is no longer relevant for consideration in view of my finding on the demotion itself, but being a ground of the application, I think it deserves a few comments. The act or decision being challenged in this application is the demotion of the applicant. From the applicant’s contention, it appears to me the applicant is saying that the act of demotion was done by the writer and the writer has no powers to demote neither can the power to demote be delegated to the writer. The answer to this ground of the application appears to me quite clearly in the first paragraph of the letter, Exhibit H. It is stated in the paragraph that “I have been directed to convey council decision at its meeting held on 26th June 2014, demoting you by one grade level for dereliction/absence from call duty without permission”. It is obvious from this paragraph that it was the council who took the decision to demote the applicant. The writer of the letter was only directed to convey the decision to the applicant. That is to say that the disciplinary action was taken by the council in person. It was not delegated to Mrs. Onuoha. Merely communicating the decision of the council to the applicant as directed, cannot affect the validity of the decision taken by the council. This ground of the application is not a valid ground on which to quash the demotion. Let me now examine the applicant’s complaint about the query. In ground (d) of the grounds of the application, the applicant alleged that the query on misconduct, Exhibit J, will amount to double jeopardy since it emanated from the same set of facts for which she has been demoted vide Exhibit H. In paragraph 38 of the affidavit in support of the application, the applicant did aver that Exhibits H and J emanated from the same set of facts and arose on same dated of 26th June, 2014. The respondent denied this allegation in its counter affidavit and stated in paragraphs 14 and 15 thereof that the applicant appeared before the respondent’s council’s disciplinary committee on 23/6/2014 in respect of the allegation of dereliction of duty and during the proceeding, the applicant was discovered to have on her a hidden pen with both audio and visual recording devices with which she was recording the members and the proceedings despite the committee’s refusal of that request. This act of disobedience of lawful orders by the applicant created a new infraction different from the one under trial. The query does not amount to double jeopardy because the allegation of unauthorized recording of the committee proceeding is separate from the indictment for dereliction of duty. The applicant did not controvert or deny these facts in her further affidavit. I have also read the query in question, which the applicant annexed to the affidavit as Exhibit J. It reads: “RE: QUERY ON MISCONDUCT The council at its sitting on June 26, 2014, considered the report of its committee on staff discipline that you brought in a wireless device with which you filmed and taped the trial proceedings of the said committee without their consent and in disobedience of express order against such wireless tape recording of the proceeding. This council viewed as a misconduct within the purview of Section 17 of the Federal Polytechnic Act 2004 and paragraph 1.3.19 and 1.3.20 of the polytechnic manual respectively. I am as a consequence directed to demand for explanation from you on why disciplinary action should not be taken against you for such a violation of the said order. Your reply should reach the undersigned within 48 hours of your receipt of this letter. Onuoha S. O. (Mrs.) For: Registrar It is clear from the content of the first paragraph of the query and the facts deposed in the respondent’s counter affidavit that the query was in respect the allegation that the applicant was found recording the proceeding of the Committee investigating the initial allegation of dereliction of duty. The query was given in respect of a separate misconduct from the misconduct of dereliction of duty which she was already being tried. In that case, I do not see the query amounting to double jeopardy. Furthermore, by its nature, a query is used to give prior notice of an allegation and requiring the person to explain his or her side of the allegation, as has been done in exhibit J. Usually, when the body issuing the query is satisfied with the explanation, the matter ends there. But if the explanation is not satisfactory, a further proceeding to investigate the allegation ensues. Therefore, this court cannot subscribe to the applicant’s view that the query has a predetermined outcome which is to dismiss her. From the facts, I do not find anything wrong with the query on which to grant the prayers of the applicant to quash same. In the final result, I find that the applicant has made out a case for an order of certiorari to issue to quash the respondent’s decision in the letter dated 1st September 2014 demoting the applicant by one grade level. The respondent actually acted outside the legal limits of the law and the rules regulating its contract of employment with the applicant in demoting the applicant. The decision of the respondent to demote the applicant and the letter of demotion dated 1st September 2014 are hereby quashed. I however find no basis in this application to quash the letter of query. The respondent is hereby ordered to place the applicant in the grade level she ought to be as at today had the offending decision demoting her not been made. Furthermore, it is ordered that the applicant’s complete and correct salaries and entitlements due to her since the period of the demotion be paid to her forthwith. No order as to cost. Ruling is delivered accordingly. Hon. Justice O. Y. Anuwe Judge