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REPRESENTATION: Dr E.S.C Obiorah Esq. appeared with Mrs I. Igbokwe for the Claimant. Uchenna Eme Esq. appeared for the 1st and 2nd Defendants. Nwanneka Chukwuba, Assistant Chief State Counsel, Ministry of Justice, Ebonyi State, appeared for the 3rd and 4th Defendants. JUDGMENT On the 3rd of May, 2012 the Claimant filed a Complaint dated same day and endorsed on the said Complaint and in paragraph 33 of the Statement of Claim are the following reliefs he claims jointly and severally against the defendants: 33. WHEREFORE the Claimant claims against the Defendants jointly and severally as follows: (a) A declaration that the letter with reference No. EBSU/R/SSE/77 of 28th February, 2012 purporting to dismiss the Claimant from the service of the 1st Defendant (Ebony State University) with effect from 28th February, 2011 violated the Claimant’s Constitutional and Legal Rights, and is therefore null and void and of no effect whatsoever. (b) A declaration that the letter with Reference No. EBSU/RE/PF:195/120 of 28th February, 2011, adopted by letter reference No. EBSU/R/SSE/77 of 28th February, 2012, purporting to suspend the Claimant from the service of the 1st Defendant (Ebonyi State University) with effect from 12th February, 2011 violated the Claimant’s Constitutional and Legal Rights, and is therefore null and void and of no effect whatsoever. (c) A declaration that the Claimant is still in the service of the 1st Defendant as a Senior Lecturer in the Animal Science Department of Ebonyi State University, Abakaliki. (d) An Order setting aside the said suspension and/or dismissal of the Claimant from Ebonyi State University. (e) An Order directing and/or compelling the Defendants to reinstate the Claimant and restore him to his position as a Senior Lecturer, including restoring to him all his rights, entitlements and other perquisites of that office. (f) An Order directing/compelling the Defendants to pay the Claimant all his salaries, allowances and other entitlements from February 2011 to the day of Judgment and thenceforth 15% interest on the judgment sum until the same is completely paid off. (g) An Order of perpetual injunction restraining the Defendants, their servants, agents, privies whosoever or however called, from preventing the Claimant from performing any of the functions and duties of his office or interfering with his enjoyment of the rights and benefits attached to his office. (h) The sum of N10,000,000.00 (Ten Million Naira) being general and special damages for the unlawful suspension and/or dismissal of the Claimant. In addition to the Statement of Claim, the Complaint is accompanied by a list of witnesses, witness statement on oath, and list and copies of documents to be relied upon at trial. Upon being served with the Originating Processes, the 1st and 2nd Defendants, on 14th June 2012 and with leave of court, entered appearance and filed a Statement of Defence accompanied with list of witnesses, statement on oath of witnesses, list and copies of documents to be relied upon at trial. Thereafter on 6th July, 2012 the 3rd and 4th Defendants also entered appearance and filed their Statement of Defence with all the necessary accompanying processes. It is worthy to note that the 1st and 2nd Defendants later applied for and were granted leave to call additional witness, Emmanuel Uchewa, the DW2. The case proceeded to trial wherein the Claimant gave evidence as CW1 and tendered 26 exhibits. The 1st and 2nd Defendants called two witnesses, DW1 and DW2 and tendered 5 exhibits. The 3rd and 4th Defendants called one witness DW3. After trial parties filed their respective final written addresses which they respectively adopted on the 14th of December, 2015. In his written address, learned 1st and 2nd Defendants’ counsel formulated and argued the following issues: 1. Whether the claimant has proved his case to be entitled to the reliefs sought? 2. Whether the claimant’s right to fair hearing was breached in the circumstances of this case? 3. Whether the court can order re-instatement of a duly dismissed staff? On his own part, the 3rd and 4th defendants’ formulated and argued the following issues for the court’s determination: I. Whether the claimant’s dismissal is wrong, with particular reference to his right to fair hearing? II. Whether the claimant is entitled to the reliefs sought? III. Whether the claimant has any right of claim against the 3rd and 4th defendants? The claimant on his part formulated and argued the following issues for determination: i. Whether, having regard to the fact the Claimant’s employment is protected by statute and considering the provisions of section 21 of the Ebonyi State University Law, 1999 (CAP 81), Article 14.3 of the Regulations Governing the Conditions of Service for Senior Staff of the 1st Defendant, and section 36 of the 1999 Constitution, the Claimant was validly suspended and/or dismissed from his employment as the Senior Staff of the 1st Defendant? ii. Whether the Claimant is entitled to the reliefs sought? Having carefully considered the processes filed, the evidence led by the parties, as well as the arguments and submissions of the parties, the issues that call for the court’s determination are: 1. Whether having regard to the facts and circumstances of this case, the claimant was validly suspended and/or dismissed from his employment? 2. Whether the claimant is entitled to the reliefs sought? Put briefly, the facts of the case are that the Claimant was employed by the 1st Defendant on 14th August, 1998 as a lecturer in its Department of Animal Science and Fisheries. He became a Senior Lecturer in 2004. Sometime in May 2010, a petition was said to have been written by anonymous persons against him and DW2, alleging that there were some irregularities and maltreatment of outgoing 500 level students of 2008/2009 Academic Sessions of the 1st Defendant. The Department set up a committee before which he appeared in relation to the allegation in the said petition following which he was suspended from his employment. See Exhibit A. Thereafter the Claimant was invited to appear before the Senior Staff Disciplinary Committee and had interaction with it and he was subsequently served a letter of dismissal, Exhibit B. The said dismissal was said to have taken effect from 28th February, 2011, the date of the letter of suspension, Exhibit A. He filed this suit claiming that his suspension and termination violated the law and regulations of the 1st Defendant and sought all the reliefs earlier reproduced in this Judgment. All the defendants in their submissions argued that the Claimant’s suspension and subsequent dismissal were validly done in compliance with the law of Ebonyi State University as well as the Regulations governing the Conditions of Service of Senior Staff of the University. In addressing the first issue, it is necessary to point out that both parties are ad idem that the employment of the Claimant was protected by statute, i.e. the Ebonyi State University Law and the Conditions of Service of Senior Staff of the University. An employment is said to be statutorily protected when a statute makes provision that gives the employment some level of statutory flavour. The implication of an employment with statutory protection or flavour is that such an employment can only be governed by those statutory provisions. In particular, such an employment can only be validly terminated or brought to an end or even the employee suspended following due compliance with the statutory provisions or Regulations made pursuant thereto. See Osisanya vs Afribank Nigeria PLC (2007) 6 NWLR (Pt. 1031) 565; (2007) LPELR-2809 (SC) where His Lordship, Oguntade JSC, at pages 17-18, paragraphs E-G, articulated the position as follows: When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations thereunder, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings. The employment of the Claimant in this case therefore enjoys such protection by virtue of the provisions of Section 21 (1), (2), (3), (4), (5) and (6) of the Ebonyi State University Law, 1999 and Article 14.3(6) & (11) of the Ebonyi State University Senior Staff Regulations on Procedure and Conditions of Service 2004. This means that the claimant’s case must be examined having regard to the said provisions. The claimant’s case basically is that, starting from his suspension, the law and regulations were not complied with. In terms of the law, Section 21(2), (3) and(4) were violated and the violation took the form of the failure of the 1st defendant to have the Claimant duly suspended either by the Vice Chancellor or Council and for the stipulated period of three months. The claimant’s case is predicated on Exhibit A. He argued that it was not made by either the Vice Chancellor or Council as mandated by Section 21(2) and (3) of the Law. In reaction to this point, the defendants pointed to the fact that the Management of the University took the decision to suspend the Claimant. Here, the DW1 emphasized this point under cross examination by the learned Claimant’s counsel as follows: To my knowledge, no any other report recommended suspension of the claimant but the procedure of the University provides for suspension to pave way for investigation. The approval for suspension was the decision of the Management following which the matter was referred to the second committee. The Management Committee does not include HODs like myself. Let me also reproduce the said letter of suspension, Exhibit A. Its relevant portion states that: Ref: EBSU/RE/PF-195/120 28th February, 2011 Dr Basil O. Nweze Dept. of Animal Science Ebonyi State University Abakaliki Dear Dr Nweze SUSPENION I am directed to refer to the report of investigation panel on alleged irregularities and maltreatment of outgoing 500 level students of 2008/2009 sessions as submitted by your Head of Department and to inform you that Management has carefully considered the report and approved that you be suspended. Consequently, and in keeping with the said approval you are hereby suspended with effect from 12th February, 2011 and placed on half salary pending the conclusion of further investigation by Senior Staff Disciplinary Committee against you. By the foregoing, you are to handover any University property in your possession to your Head of Department; leave your contact address with your Head of Department and keep away from your work place till further notice. The Bursar and all concerned are requested to take note of the foregoing for further action, please. Signed: Mgbabor P.E HOD, HRM For: Registrar From the contents of this Exhibit A, it is quite clear that the Vice Chancellor or Council was not the body that ordered for the suspension but rather “the Management”. This body called “the Management” is nowhere provided for in the University Law. It must be pointed out that where the law clearly stipulate who should do a particular act, or that a particular procedure must be followed, that act or procedure must be complied with satisfactorily. See Bernard Ojeifor Longe vs First Bank of Nigeria PLC (2010) LPELR-1793, Per Oguntade JSC, at p. 44 Paras. A-F. The argument and submission of the learned counsel for the 1st and 2nd Defendants’ counsel that it is a mere technicality to object to “the Management|” as contended by the Claimant in this case is not convincing. In a democratic society such as ours, constituted authorities, such the 1st Defendant, which has its laws and Regulations must justify its actions clearly and unambiguously with reference to the provisions of the law. Learned claimant’s counsel equally contended that the suspension of the Claimant violated the Regulations of the University in that the suspension was not made by the Vice Chancellor and it was not for the three months stipulated with the power to renew same. Here the defendants have not in my humble view defeated through credible evidence this position of the claimant. The letter of suspension I reproduced earlier shows clearly that it was not the Vice Chancellor that wrote the letter or directed for the letter to be written. There is also no evidence to show that the Claimant’s suspension was for any definite period and neither was it extended properly by Council. It is thus my finding that the suspension of the Claimant did not comply with the Law or Regulations of the 1st Defendant. However, the Claimant has also challenged the dismissal on the ground that it has not complied with the provisions of the Law and Regulations of the University. I have painstakingly gone through the evidence led, the processes filed and arguments and submissions of learned counsel to the parties on the issue of the Claimant’s dismissal. On the whole, the pleading and evidence of the Claimant shows that he was dismissed by the letter which he tendered as Exhibit B. This letter reads as follows: Ref: EBSU/RE/PF-195/120 28th February, 2012 Dr Basil O. Nweze Dept. of Animal Science Ebonyi State University Abakaliki Dear Dr Nweze DISMISSAL I am directed to refer to our letter, vide: EBSU/RE/PF.195/120 of 28th February, 2011 and inform you that the University Council has in its 34th regular meeting held on 16th and 17th February, 2012, considered and confirmed the recommendations of the University Management that you be dismissed from service. Accordingly, you are hereby dismissed from the services of Ebonyi State University with effect from 28th February, 2011 on grounds of gross misconduct. You are to handover your University identification card and any other property of the University in your possession to your Head of Department before leaving. Sincerely yours, Signed B.N. Ede DR (SSE) For: Registrar The Claimant has argued that his dismissal was not in compliance with the law. However, the defendants have argued that it did. The learned counsel for the 1st and 2nd defendants in particular argued that the powers of the defendants to remove and discipline academic staff such as the Claimant provided under Section 21 of the Law could and were duly exercised by them through committees as provided under Section 26 of the University Law. In the present case, the 1st and 2nd Defendants used the Senior Staff Disciplinary Committee to investigate the allegations of misconduct against the claimant and submitted its report, Exhibit D4. It was this report that was submitted to the Council which decided on the allegations and dismissed the Claimant. The minutes of meeting of the Council were also tendered and admitted in evidence and marked Exhibit D3. The learned claimant counsel’s analysis of the decision of the Council of the University focuses on the fact that the Claimant was not given fair hearing, while the defendants maintained that he was given fair hearing. Looking at the totality of the pleadings and evidence led by the parties before the court, most especially Exhibits D1, D2, D3 and D4 it seems to me that the Claimant has been given fair hearing by the defendants. The essence of fair hearing is giving the person concerned the opportunity to know the allegations against him, have an opportunity to be heard before a decision is taken on him. See Bamboye vs Univeristy of Ilorin & Anor (999) LPELR-737 (SC)pp. 43-44, paras. G-E; Eperokun vs University of Lagos (1986) 4 NWLR (Pt. 34) 162 and Agbiti vs The Nigerian Navy (2011) LPELR-2944, pp.44-45 paras. E-F. In this case, I have no doubt that the Claimant knew that he was being investigated for the irregularities concerning the examination in Course ANS 544, which he handled along with DW2 as joint lecturers. His appearance before the Senior Staff Disciplinary Committee was preceded by a notice, Exhibit D2, which clearly told him that he was to appear for the matter in relation to which he was suspended. He was confronted in that Committee with the fact that the allegation against him was that of including the name of a candidate on the score sheet of candidates who allegedly did not sit for the examination. Be that as it may however, the Council in its decision, Exhibit D3, which is at variance with the recommendations of the Senior Staff Disciplinary Committee, indicated that the grade “F”, awarded to the candidate be cancelled. While the Senior Staff Disciplinary Committee recommended for warning and other measures, the Council decided to dismiss for misconduct. Here, in cases of termination or dismissal for misconduct, the defendants have a duty justify the said misconduct. See Angel Shipping & Dyeing Ltd vs Ajah (2000) 13 NWLR (Pt. 685) 551 CA. In the letter of dismissal Exhibit B, the reason was just stated as gross misconduct. The question is can it really be said that the Claimant’s dismissal for misconduct was justified? I do not think so. During the proceedings of the Senior Staff Disciplinary Committee, the report of which is Exhibit D4, the claimant stated that: As far as I know, I don’t know Joyce Defokwu before; I never knew she was scored when she did not sit for the exam. I don’t know how her name got into the result grading sheet. I have no transaction with her. I was only made a escapegoat (sic) by suspending me alone for a course two of us taught and graded. The claimant further in the said Exhibit D4 added that “to the best of my knowledge, she was not in the exam.” However a more critical point is the fact the 2nd Defendant stated in its Minutes, Exhibit D3, that the score awarded the said candidate was an “F”, a failure. With all due respect, I cannot see how what appears to be a clear error on the part of the Claimant could be held up as a misconduct against him. Surely it would have made a lot of difference if any rewarding grade such as a very high pass or even lower pass was awarded instead to raise the necessary or any suspicion of a wrong doing. Otherwise, how else would one see the inclusion of the name of a candidate on a score sheet with a “fail” grade than as a mistake and perhaps punished with a warning? This is exactly what the Senior Staff Disciplinary Committee itself recommended and it is my humble view that it did not amount to a gross misconduct. In the circumstance, it is my finding that the dismissal of the Claimant for gross misconduct has not been justified. Issue 1 therefore is resolved in favour of the Claimant. On the second issue whether the Claimant is entitled to his reliefs, with my holding that the suspension was not done by the right person and body, i.e. the Vice Chancellor in the first place, and that the dismissal is not justified, I hold that he is entitled to his reliefs. I accordingly declare and order that: 1. The letters of the 1st and 2nd Defendants with Reference Numbers EBSU/RSSE/77 of 28th February, 2012 and EBSU/RE/PF: 195/120 of 28th February, 2011 dismissing and suspending the Claimant respectively, are hereby set aside. 2. 2. The suspension and dismissal are both hereby nullified. 3. The Claimant is reinstated back into his work as from the 28th day of February, 2011. All salaries and emoluments from that date shall be paid to him. 4. The defendants shall pay to the Claimant the sum of N40,000.00 as costs. 5. This judgment shall be implemented within 30 days. 6. Any sums of money due to the claimant not paid within 30 days from the date of this judgment shall attract 10% interest until same is fully paid up. Judgment is entered accordingly. Hon Justice A. Ibrahim Presiding Judge