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<p class="MsoNoSpacing"><b><u><span style="font-family:"Comic Sans MS"">Representation</span></u></b><span style="font-size:12.0pt;font-family:"Comic Sans MS"">:<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt; font-family:"Comic Sans MS"">P. E. Chima with S. N. C. Nnadi for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt; font-family:"Comic Sans MS"">Chief M. I. Ahamba SAN with E. N. Ichie and K. O. Ahamba for the Defendants<o:p></o:p></span></p> <p class="MsoNoSpacing" align="center" style="text-align:center;tab-stops:0in"><b><u><span style="font-size:8.0pt;font-family: "Comic Sans MS""> </span></u></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center;tab-stops:0in"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS"">JUDGMENT</span></u></b><span style="font-size: 12.0pt;font-family:"Comic Sans MS""><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The Claimant commenced this action by way of complaint filed on the 18<sup>th</sup> day of March 2014 wherein he claimed against the Defendants the following reliefs: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">A Declaration that the dismissal of the Claimant which is complained of in this suit is unlawful and void.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">An Order setting aside that dismissal.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">An Order restoring the Claimant to his employment as Professor in the University of Port-Harcourt.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">A Declaration that the Claimant is entitled to be paid his salaries and allowances as if he was never suspended or dismissed.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The complaint was filed along with an affidavit in verification of the Complaint, the Statement of Claim, Claimant’s List of Witnesses, Claimant’s witness statement on oath, Claimant’s List of Documents and Copies of Documents to be relied on. These originating processes were served on the Defendants. The Defendants entered appearance and subsequently filed a Joint Statement of Defence and Counter-Claim, along with other accompanying processes which were duly regularized. Hearing commenced on 27<sup>th</sup> November 2014. Parties called one witness each. The Claimant testified for himself as CW1, while Mr. Roland Wabali, a Council Officer of the 1<sup>st</sup> Defendant testified for the Defendants as DW1. Hearing ended on 24<sup>th</sup> May 2016. Both parties were ordered to file their final written addresses in accordance with the Rules of Court. The Defendants’ Final Address was filed on the 1<sup>st</sup> day of June 2016. The Claimant’s Address was filed on 14<sup>th</sup> July 2016. The Defendants filed a Reply on Points of Law on 24<sup>th</sup> August 2016. These were duly regularized on 4<sup>th</sup> October 2016, and parties adopted their respective Final Written Addresses on 11<sup>th</sup> October 2016. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the Defendants’ Final Address, counsel identified 3 issues for determination, to wit:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l7 level1 lfo6"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">1.<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Whether within the procedure adopted leading to the dismissal of the Claimant, the Claimant was afforded an opportunity to defend himself. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l7 level1 lfo6"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">2.<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Whether the dismissal of the Claimant was unlawful?<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l7 level1 lfo6"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Whether the Claimant proved any claim to a relief against the Defendants</span></i></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE;mso-bidi-font-style:italic">.<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Counsel argued the first two issues together. In this regard, counsel submitted that Section 16(1) of the University of Port Harcourt Act 2004 (the Act establishing the 1<sup>st</sup> Defendant) requires the Council of the 1<sup>st</sup> Defendant to observe the rules of natural justice before a disciplinary measure is taken against any of its staff. In this regard, counsel submitted that while the Claimant averred in his claim that he was not afforded an opportunity to defend himself before he was dismissed, those averments were denied in the joint statement of defence. More so, counsel submitted further that it is common ground between the parties in this case, that it was the petition of Professor B. S. Okeke (Exhibit D2) that propelled the investigation of two separate committees which investigated the petition against the Claimant. It is counsel’s opinion that the all that the Claimant needed to defend himself were present in Exhibit D2, and that the each of the committees set up invited the Claimant and he defended himself before them by filing two written defences Exhibit C18 and Exhibit D1. Similarly, counsel contended that the Claimant on 18/10/2012 had an opportunity to confront his accuser who was present in the proceedings of the Committees investigating the petition against the Claimant. Counsel cited the case of <b>O.S.I.E.C. vs. A.C (2010) 19 NWLR (Pt. 1226) 273 at 339</b>, where the court held:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Fair hearing revolves around opportunity to be heard being offered to a person aggrieved or to be adversely affected by the decision of a court, body or tribunal. Once that opportunity exists, it is left for the person to use the same to protect his rights or to ventilate his grievances. Where the person fails or neglects to do so he cannot later complain of denial of the right to fair hearing.” <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">See also <b>ADEYEMI vs. STATE (2011) 5 NWLR (Pt. 1239) 1040</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Furthermore, counsel contended that representation in writing, or that made orally is sufficient to satisfy the fair hearing requirement. See <b>OLORUNTOBA-OJU vs. ABDULRAHEEM (2009) 18 NWLR (Pt. 1173) 284 at 463</b>. Counsel contended further that contrary to the Claimant’s admission on 23/2/2016 under cross-examination that he was not allowed to have the particulars of the offence against him; Page 6 of Exhibit D3 expressed the Claimant’s thanks to the committee for the opportunity of being heard. Thus, the Claimant cannot recant and accuse the Defendants of denying him an opportunity; he had thanked them for to defend himself. Again, counsel submitted that the Claimant was present on the day his accuser presented his case and failed to contradict him. Similarly, it is counsel’s contention that prior to the committee’s proceedings; the Claimant had submitted a written reply to the petition against him which appeared as a counter-indictment rather than a denial of plagiarism. At this juncture, counsel argued that the Defendants followed due process, gave all parties opportunity to be heard and dismissed the Claimant in conformity to the legal conditions for procedural competence.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Also, counsel submitted that the 1<sup>st</sup> Defendant is a creation of statute, Section 16 of the University of Port Harcourt Act provides for discipline of staff of the institution found to have engaged in misconduct. Counsel submitted further that plagiarism is an act that amounts to gross misconduct. It is counsel’s further submission that the law is that in a master-servant relationship, misconduct or gross misconduct is what the employer terms misconduct. See <b>OYEDILE vs. LYTH (1980) 6 NWLR (Pt. 155) 194 at 199</b>. Thus, in the instance the Defendants complied with the procedure for staff dismissal, such dismissal is valid and may not be set aside. Counsel urged the court to resolve issue 1 in the affirmative, and issue 2 in the negative both against the Claimant and dismiss this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">On issue 3, counsel contended that in the averments of the Claimant in his 20 paragraph statement of claim, he did not deny the specifically allegation of plagiarism. Counsel contended further that the Defendants tendered documents in evidence and gave oral testimony disproving the claims of the Claimant. It is the opinion of counsel that in civil proceedings, the determination of issues is based on the weighing on the principle of the imaginary scale of justice, elucidated in <b>ATUYEYE vs. ASHAMU (1987) 1 NWLR (Pt. 49) 267 at 28</b>, as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-top:0in;margin-right:28.35pt;margin-bottom: 0in;margin-left:.5in;margin-bottom:.0001pt;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">“A civil case is decided on the balance of probability. The judge has to weigh the evidence on the one side against the evidence on the other side and look at his imaginary scale and find out which evidence outweighs the other.”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-right:28.35pt;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">In similar vein, counsel submitted that the Claimant’s burden of proving that his dismissal was unlawful can only be discharged by proving the principles outlined in </span><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">OLORUNTOBA-OJU vs. ABDULRAHEEM (supra)</span></b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE"> as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-top:0in;margin-right:28.35pt;margin-bottom: 0in;margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo7"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">a.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-style:italic">That he is an employee of the Defendant<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-top:0in;margin-right:28.35pt;margin-bottom: 0in;margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo7"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">b.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-style:italic">The terms and conditions of his employment, by placing before the court the terms of contract<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-top:0in;margin-right:28.35pt;margin-bottom: 0in;margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo7"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">c.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-style:italic">Who can appoint, and who can remove him<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-top:0in;margin-right:28.35pt;margin-bottom: 0in;margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo7"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">d.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-style:italic">In what circumstances the employment may be determined by the employer.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-right:28.35pt;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">Counsel submitted further that the above-stated principles were not pleaded or proved by the Claimant and consequently, this omission renders this suit unmeritorious. Counsel urged the court to dismiss this action on this basis alone. It is counsel’s submission that the documentary evidence tendered by the Defendants dismissed the Claimant’s claim, his cause of action that the Defendants did not avail him fair hearing and due process was not followed in his dismissal from service. Again, counsel contended that the Claimant failed to confront DW1 with his alleged denial of fair hearing at the disciplinary committees, a failure that implies that the claimant accepted the evidence of DW1. See <b>OLUDAMILOLA vs. THE STATE (2010) 8 NWLR (Pt. 1197) 564</b>. Again, Learned Counsel for the defendants argued that from a combined consideration of the documentary evidence tendered by both parties, coupled with evidence; the Claimant has failed to prove that he was denied fair hearing by the Defendants’ disciplinary committees and that his dismissal is unlawful. It is the further argument of counsel that the Claimant failed to discharge the burden of proof provided for by section 136(1), (2) of the Evidence Act. Counsel urged the court to hold that the claimant has failed to prove his case, resolve issue 3 in the negative and dismiss this suit<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Learned Counsel for the Claimant in his final written address, formulated two issues for determination by court to wit: <b><o:p></o:p></b></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo8"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style: italic">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">The DW1 having admitted that the dismissal of the Claimant is based on the proceedings, findings and recommendations of the</span><span style="font-family:"Comic Sans MS""> </span><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Senior Staff Disciplinary Committee (SSDC) of the 1<sup>st</sup> Defendant in Exhibit D3, was the Claimant afforded a fair hearing as required by Section 16 of the University of Port Harcourt Act? And if not, then<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo8"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style: italic">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Whether the Claimant is entitled to his claims/reliefs in this suit?<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">As his introduction, counsel set out to reproduce the said Section 16 of the University of Port Harcourt Act, which provides thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">“(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University other than the Vice- Chancellor, should be removed from his office or employment on the grounds of misconduct or of inability to perform the functions of his office or employment, the Council shall:<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(a) Give notice of those reasons to the person in question;<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(b) Afford him an opportunity of making representations in person <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> on the matter to the Council;<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(c) If he or any three members of the Council so request within the <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> period of one month beginning with the date of the notice, make <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> arrangements:<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:2.25in;text-align:justify;text-indent: -.75in;mso-list:l4 level1 lfo12"><!--[if !supportLists]--><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">(i)<span style="font-style: normal; font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i><!--[endif]--><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE">for a joint committee of the Council and the Senate to <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: .5in"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE">investigate the matter and report it to the Council; or<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:2.25in;text-align:justify;text-indent: -.75in;mso-list:l4 level1 lfo12"><!--[if !supportLists]--><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">(ii)<span style="font-style: normal; font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i><!--[endif]--><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE">for the person in question to be afforded an <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">opportunity of appearing before and being heard by the investigating committee with respect to the matter.<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">And if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed aforesaid; the Council may so remove him by an instrument signed on the directions of the Council.”</span></i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is the opinion of Learned Counsel that this statute overrides every conditions of service or subsidiary laws of the 1<sup>st</sup> Defendant. Following this assertion, counsel argued that the Defendants did not comply with the above-cited statutory procedure in dismissing the Claimant, which in turn makes the dismissal void.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Regarding issue one, counsel relied on the admission of DW1 that the dismissal of the Claimant was based on the findings and recommendations of the SSDC and went further to state that the Claimant adduced evidence in proof of the facts contained in his pleadings. Also, counsel submitted that paragraphs 2-7 of the Statement of Claim was not denied by the Defendants, and in particular that the Claimant in paragraph 9(b) of the statement of claim averred that the petitioner was not brought “face to face” with him during any of the committees’ proceedings. This fact was denied by the Defendants in paragraph 16 of their defence and Exhibit D3 confirmed this fact. Counsel went further to state that the facts averred in paragraphs 9(d) and 10 of the Statement of Claim, which were admitted in paragraph 18 of the Statement of Defence are facts that need no proof. See <b>NITEL vs. TUGBIYELE (2005) 3 NWLR (Pt. 912) 334 at 353</b>. Further, counsel submitted that the effect of the Defendants’ averments in paragraph 19 of the Statement of Defence (that the Claimant was served with Professor Benjamin Okeke’s petition without the signature page), in denial to the Claimant’s averment in paragraph 11 (a, b) of the statement of claim that he was not served with Exhibit D2; is that the Claimant was served with an unsigned petition which is worthless in law. See <b>DANTIYE vs. KANYE (2009) 4 NWLR (Pt. 1130) 13 at 39</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Similarly, counsel contended that paragraph 13 of the Statement of Claim was admitted in Paragraphs 21 and 22 of the Statement of Defence; the effect of which in Counsel’s opinion creates doubt as to how the petitioner who assessed the Claimant for promotion to the rank of Reader and subsequently Professor on the basis of the same books and materials, he claims to be plagiarized. Also, counsel submitted that while DW1 admitted that the case for which the Claimant was dismissed was anchored on Exhibit D2, Paragraph 26 of the Statement of Defence indicates that the allegations for which the Claimant was dismissed also involved the plagiarism from students’ term papers and presentations. On this point, counsel further submitted that the Claimant was dismissed on the basis of a limitless case contrary to Section 16 of the University of Port Harcourt Act. Counsel argued that in this case, fair hearing must involve strict compliance with the procedure laid down in Section 16 of the University of Port Harcourt Act; a statute which in counsel’s opinion, this court is required to take judicial notice of, in line with Section 77(1)(a) of the Evidence Act.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is Counsel’s submission that in Exhibit D3, the Chairman demonstrated his awareness of the requirement of fair hearing set out in Section 16 of the University of Port Harcourt Act, which if breached renders the entire proceedings void. See the following cases of: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l11 level1 lfo9"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">1.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">OKAFOR vs. AG ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l11 level1 lfo9"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">2.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">ARIORI vs. ELEMO (1983) 1 SC 13<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l11 level1 lfo9"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">IKPEAZU vs. OTTIH (2016) 8 NWLR (Pt. 1513) 38 at 39<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">In the same vein, counsel argued that the investigations the departmental committees carried out merely constituted “reasons” for believing that the Claimant should be removed from his employment. The 4<sup>th</sup> Defendant was required to at that point to give the Claimant notice as required by Section 16 of the University of Port Harcourt Act. However, counsel argued further that from the Defendants’ pleadings, it is uncertain whether Exhibit D2 was served on the Claimant. Therefore, counsel contended that so long as no signed copy of Exhibit D2 was served on the Claimant no valid document was served. Counsel referred the Court to the case of <b>AG ABIA STATE vs. AGHARANYA (1999) 6 NWLR (Pt. 607) 362 at 371</b>, where it was held that an unsigned document is worthless and void. Similarly, counsel cited the case of <b>OJO vs. ADEJOBI (1978) NSCC vol. 11,161 at 165</b>, where it was held inter alia that the court cannot ignore a situation in which the foundation of a claim is based on a worthless, unsigned and inadmissible document, whether objection was taken to it or not. See also <b>OKARIKA vs. SAMUEL (2013) 7 NWLR (Pt. 1352) 19 at 37</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Further, counsel contended that the evidence in Exhibit D3 is that neither Exhibit D6 nor any other reports of proceedings were served on the Claimant. More so, counsel contended further that while the Defendants pleaded that the Claimant was dismissed for other previous alleged plagiarism, no evidence was tendered to prove the alleged plagiarism. Counsel in stressing the duty of the Defendants in the extant case to comply with Section 16 of the University of Port Harcourt Act, referred to the case of <b>OLANIYAN vs. UNILAG (1985) 2 NWLR (Pt. 9) 599 at 605</b> where it was held inter alia, as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">“To remove a public servant in flagrant contravention of the Rules governing him…under provisions of a statute or Regulations made thereunder, is to act capriciously and to destabilize the security of tenure of public servant, frustrate his hopes and aspirations, and thereby act in a manner inimical to order, good government and well-being of society”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">See also <b>PHCN vs. OFOELO (2013) 4 NWLR (Pt. 1344) 380</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is the contention of counsel that from the pleadings and record in this case, the SSDC proceeded on the basis of Exhibit D6, to find against the Claimant; without first ensuring its service on the Claimant. Counsel contended further that the Defendants cannot take the failure of the Claimant to cross-examine the Dean of the Faculty as an admission of guilt because the Dean was absent in the proceedings of Exhibit D6. He was not competent to be cross-examined by the Claimant. Again, counsel argued that by not producing the accuser to be confronted by the Claimant, the Defendants adopted a different procedure for the Claimant, a clear breach of fair hearing. Counsel urged the court to resolve this issue 1 against the Defendant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">In the same vein, counsel submitted that the proceedings in Exhibit D3 is quasi-judicial, and must satisfy the requirements of fair hearing. Counsel drew the court’s attention to the case of <b>AGHA vs. IGP (1997) 10 NWLR (Pt. 524) 317 at 332</b>, where it was held thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">“In a judicial or quasi- judicial body, a hearing in order to be fair must include the right of the person to be affected:<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">(a)<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To be present all through the proceedings and hear all the evidence against him<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">(b)<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To cross-examine or otherwise contradict all the witnesses that testify against him<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">(c)<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To have read before him all documents tendered in evidence against him<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">(d)<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To have disclosed to him the nature of all relevant material evidence including documentary and real evidence prejudicial to the party, save in recognized exceptions<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"; mso-bidi-language:HE">(e)<span style="font-style: normal; font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></i></b><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo10"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style: italic">(f)<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">To give evidence by himself, call witnesses if he likes and make oral submissions either verbally or through counsel of his choice.”</span></i></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">With respect to issue two, counsel urged the court to resolve this issue in favour of the Claimant on the principle of “<i>ubi jus, ibi remedium</i>”, especially as Paragraph 21 of the Statement of Claim was not denied by the Defendants. Also, counsel contended that in an employment with statutory flavour, a successful litigant is entitled to reinstatement and to payment of his unpaid salaries. See <b>UCHMB vs. MORAKINYO (2014) 16 NWLR (Pt. 1434) 589 at 617</b>. Again, counsel contended further that when the provisions of a statute adversely affect the vested rights of a citizen, the person affected has the right to insist on strict compliance with the provisions of statute. See <b>PROVOST L.A.C.O.E.D vs. EDUN (2004) 6 NWLR (Pt. 87) 476 at 506</b> and <b>UDE vs. NWARA (1993) 2 NWLR (Pt. 278) 638</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Responding to the Defendants’ counter-claim, counsel contended that a Counter-Claimant is in the same stead of a Claimant, who must fail or succeed on the strength of his own case. Counsel referred the court of <b>OBASI BROS COY LTD vs. M.B.A.S. LTD. (2005) 9 NWLR (Pt. 929) 117 at 143</b> where it was held that a counter-claim is an independent and separate action. It has to be proved, if not admitted, like all other civil actions on the balance of probabilities. See also the following cases of:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l12 level1 lfo11"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">1.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">NSEFIK vs. MUNA (2014) 2 NWLR (Pt. 1390) 151 at 184<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l12 level1 lfo11"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">2.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">UNOKAN ENT. LTD vs. OMUVWIE (Pt. 907) 298 at 316<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l12 level1 lfo11"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">MAOBISON INTERLINK LTD vs. UTC NIG PLC (2013) 9 NWLR (Pt. 1359) 197 at 209</span></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is the further submission of counsel that the counter-claim was denied by the Claimant in his pleadings and evidence, while the Defendants have not tendered any evidence of alleged wrongful payment to the Claimant. Counsel urged the court on the authority of <b>ETA vs. DAZIE (2013) 9 NWLR (Pt. 1359) 248 at 262</b>, to presume that if the evidence was tendered; it will “speak against” the Defendant. Counsel submitted that owing to the fact that the Defendants’ counsel did not argue in favour of the counter-claim, it is deemed abandoned.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; mso-bidi-font-size:8.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE; mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">In the Defendants’ Counsel Reply on points of law, it was the contention of counsel that the Claimant’s preliminary argument that the defence must plead and prove facts that they complied with the Statute regulating his employment before his dismissal is misconceived. On this point, counsel adopted paragraph 2.03E of his argument in his final address and referred the court to the case of <b>ZIIDECH vs. R.S.C.S.C. (2007) 3 NWLR (Pt. 1022) 554 at 570</b> where it was held that it is not the duty of the employer as a Defendant in an action brought by the employee to prove any facts. Rather, the burden of proving wrongful termination is on the employee, who is required to place before the court the terms of his contract and prove in what manner the terms were breached by the employer. Counsel contended further that in the instant case, the Claimant has failed to discharge the duty of proving non-compliance by pleading insufficient facts. The court’s attention was drawn to the case of <b>AMODU vs. AMODE (1990) 5 NWLR (Pt. 150) 356 at 371</b>, where the Supreme Court posited thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">“In civil matters the vehicle to a decision is the pleadings of the parties. Once a pleading is deficient in the case that it does not aver certain material facts, these facts cannot be relied upon as they are inadmissible in evidence. Decisions must be based on legally admissible evidence and no more; and where facts not pleaded are inadvertently received they go to no issue…” <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Similarly, counsel argued that the facts that the Claimant was no given notice by the 4<sup>th</sup> Defendant before his employment was terminated, was not raised at the trial but in the Claimant counsel’s final address for the first time. It is counsel’s further argument that parties are bound by their pleadings, and evidence at variance with the pleadings goes to no issue. The Claimant having not pleaded and tendered to have been breached, that aspect of his argument must be discountenanced and rejected. See <b>ZIDECH vs. RSCSC (supra)</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is the submission of counsel that in the event that the court holds that the Claimant has discharged this burden; the Defendant has complied with every provision of the University of Port Harcourt Act before the dismissal of the Claimant. Counsel submitted that at Paragraph 17(c) of the Statement of Claim, the Claimant pleaded that the SSDC gave him invitation notice dated 4/9/13. It is counsel’s argument that this notice was in fulfillment of the law requiring the Council to give notice to the Claimant, and subsequent opportunity to make representation before the council. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">It is counsel’s contention that the Claimant knew that the invitation notice, if presented to the court will be in favour of the Defendants, as it complied with Section 16 of the University of Port Harcourt Act. See 167(1)(d) of the Evidence Act. Counsel submitted that the Defendants complied with the requirement of law for Council to give notice of reasons to an affected party (Claimant) and subsequent opportunity to make representation in person. Also, counsel submitted further that the notice given to the Claimant dated 4/9/13 was ex-gratia, as he was dismissed from service by the 4<sup>th</sup> Defendant for gross misconduct for plagiarism. See <b>ZIDECH vs. RSCSC (supra) at 1 -578, paras E-F</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Furthermore, counsel argued that dismissal is punitive as against termination of employment; dismissal carries a loss of terminal benefits. <b>EZE vs. SPRING BANK PLC (2011) 18 NWLR (Pt. 1278) 113 at 131-2.</b> Again, counsel argued further that plagiarism is gross misconduct in the academic world which was duly proved by direct evidence. More so, counsel contended that in a case of dismissal of employee, what is paramount is the observance of fair hearing before the dismissal and not notice. Counsel reiterated his initial argument that the Claimant was afforded fair hearing; he was also given notice before he appeared before the SSDC. The Claimant cannot be allowed to reprobate and approbate on this issue. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">In response to the Claimant counsel’s issue one, counsel argued that pages 12 to 16 of the Claimant’s final address; where it was canvassed that paragraphs 8(b), 10, 11 (a)(b) and 21 of the statement of claim were admitted by the Defendants is false and misleading. Counsel contended that all these above mentioned paragraphs and other relevant ones were denied and well traversed in the statement of defence. On the traverse of paragraph 21 of the statement of claim, it is counsel’s opinion that in an action, a claim for damages is always deemed to be in issue. Thus, counsel posited that any allegation in a pleading that a Claimant has suffered damages is deemed traversed unless specifically admitted. On this point, counsel submitted that in the instant case, there being a deemed traverse by the Defendants in respect of the purported basic salary of the Claimant which is not before the court; the Claimant has failed to discharge the burden of proof placed on him. See <b>IWEKE vs. IBC (2005) 17 NWLR (Pt. 955) 447 at 474</b>. It is counsel’s opinion that this principle applies particularly in the extant case, where the Claimant was dismissed for misconduct and in law not entitled to receive any wages. See <b>JOMBA vs. P.E.E.M.B (2005) 14 NWLR (Pt. 945) 445 at 467</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Again, counsel argued that the Claimant’s right to fair hearing was not denied because prior to the proceedings of the joint committee of the Council and Senate on 12/9/2013, the Claimant was served with the necessary documents including an invitation notice dated 4/9/2013 (as required by Section 16(1)(a) of the University of Port Harcourt Act), which was pleaded in Paragraph 17(c) of the Statement of Claim; in response to which the Claimant submitted a written response in which the subject matter of the query was mentioned to the SSDC before the sitting of 12/9/2013. And on the day of the sitting the Claimant applied to the committee to amend his earlier submitted Defence by substituting pages 4, 7, and 8 before the Joint Committee of the Council and Senate. See Page 3 of Exhibit D3. Similarly, counsel contended that the Claimant was allowed to know the allegation against him and was served with the report because he prepared a written defence and submitted same to the Committee. Counsel urged the court to discountenance the Claimant’s submission that he was not served with the report or made to know the allegations against him. Particularly, as the law is that the representation to the Council does not need to be oral but may be written and attested by the affected person. See <b>HART vs. MILITARY GOVERNOR RIVERS STATE (1976) 11 SC 183.</b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Similarly, counsel submitted that in the case of <b>AGHA vs. IGP (supra)</b> cited by the Claimant’s counsel, the observance of fair hearing in relation to a proceeding of a Joint Committee of the Council and Senate of an institution was not in issue. Therefore, it is counsel’s argument that AGHA’s case cannot be good case law in light of the most recent cases on the subject matter such as <b>OLORUNTOBA-OJU vs. ABDULRAHEEM (supra)</b> and <b>OLUFEAGBA vs. ABDULRAHEEM (supra)</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Regarding issue two of the Claimant’s final address, counsel repeated his argument that the Claimant is duty bound to prove any monetary claim or damages. Counsel argued further that the Claimant having being dismissed for proven gross misconduct, he is not entitled to any claim. See the cases of <b>I.B.C. vs. IWEKE (supra), EZE vs. SPRING BANK PLC (supra) and ZIIDECH vs. RSCSC (supra)</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">Counsel urged the Court to refuse the Claimant’s reliefs, dismiss this suit and grant the counter-claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">COURT’s DECISION<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Having heard the arguments of the learned senior counsels to the parties in their final written addresses, I will now determine the case. But first, let me set out the facts of the case.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The case of the Claimant, in his pleading and as stated by him in his evidence, is that he was appointed by the 1<sup>st</sup> Defendant as Lecturer II in Education Management and Planning in a letter dated 5<sup>th</sup> November 1984 and he accepted the appointment. His appointment with the 1<sup>st</sup> Defendant, which was confirmed in a letter dated 8<sup>th</sup> July 1987, is pensionable and governed by statute. During his appointment, he was went through several promotions to Lecturer I; Senior Lecturer; Reader, Education Management; Professor of Education Management; Acting Head of Department of Education Management; and Dean, Faculty of Education. During his service, he was also appointed to several offices and responsibilities in the 1<sup>st</sup> Defendant and in other universities. For his meritorious services, he received a letter of appreciation from the 2<sup>nd</sup> Defendant and numerous awards and certificates of excellence from educational institutions and associations. A petition was written against him by one Professor S. B. Okeke who alleged that the Claimant plagiarized his books. In his petition, Professor Okeke never made reference to any of his books, but made reference to unpublished materials of other persons who were never brought forward to confront the Claimant. The 2<sup>nd</sup> Defendant referred the petition of Professor Okeke to the Professional Ethics Committtee of the 1<sup>st</sup> Defendant for investigation. The committee in turn requested the Dean, Faculty of Education to investigate the petition and give the opinion of the faculty on the petition. The Dean of the Faculty of Education set up an ad-hoc committee to review the materials sent to the faculty. The committee never confronted the Claimant with the allegation against him or give him notice of the allegation which they investigated to enable him respond but went ahead to produce a report dated 28<sup>th</sup> August 2012. The Professional Ethics Committee purported to have carried out an investigation and concluded that the allegation of plagiarism against the Claimant had merit and recommended that the petition be referred to the Senior Staff Disciplinary Committee (hereinafter referred to as SSDC) for further investigation. The Claimant said he was not given the materials on which the professional ethics committee based its investigation and report. The Claimant was subsequently referred to the SSDC where he was suspended on half pay with effect from 31/5/2013. The Claimant also said he was not given any particulars of the allegations being investigated at any of the Committees or stages. He was not given opportunity to confront Professor Okeke or challenge him on the allegations in the petition. In all the committees, he was not given opportunity to prepare and present defence to the allegations against him. The SSDC proceeded to produce a report dated 3<sup>rd</sup> December 2013 wherein they set out the procedure adopted in their assignment and the allegation being investigated. The SSDC indicted the Claimant in the report and recommended his dismissal from service. The SSDC did not give the Claimant opportunity to confront his accuser in the proceedings of the committee and he was not given fair hearing. The Claimant said he was not given or confronted with materials and facts which gave rise to the reports/findings and conclusion of the SSDC against him. The Chairman of the Professional Ethics Committee (Hereinafter referred to as PEC), in a memo dated 26/7/2012, forwarded Professor Okeke’s 11-page petition to the Claimant. There was no annexure to the petition. The petition never identified any book or work of Professor Okeke allegedly plagiarized but it made reference to several unpublished materials which were never shown to the Claimant. The Claimant further stated that he was assessed by Professor Okeke for his promotion on the same books and materials which formed the basis of the petition and Prof. Okeke recommended the Claimant for promotion.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant also averred that he was not invited or confronted with the report of the Faculty of Education on the matter; the committee did not receive any response from the Department of Education Management or the Claimant or Professor Okeke, the committee excused the Claimant’s appearance because of the pending Suit No. PHC/2295/2012. The committee nonetheless proceeded and indicted the Claimant without affording him opportunity to defend himself. Prof. Okeke interacted with the committee on a second invitation for more than one and a half hour but the Claimant was not given report of that interaction. The Claimant contended that he never plagiarized any book of Prof. Okeke nor does Prof. Okeke have any published and registered book or work which he was alleged to have plagiarized. To prove the allegation of plagiarism against him, the investigation and report must disclose the books of Professor Okeke allegedly plagiarized, confront him with the allegation, demand for his response, invite him and Professor Okeke to Council or Committee of Council to hear from them, serve him a copy of the proceedings of council or its committee. The Defendants did not comply with this procedure before he was dismissed. His dismissal violated his right of fair hearing. His employment with the 1<sup>st</sup> Defendant is regulated by the University of Port Harcourt Act which prescribed specific procedure for dismissal of Senior Staff of the 1<sup>st</sup> Defendant. The provisions of the act were not complied with in his dismissal vide letter dated 8<sup>th</sup> January 2014. At the time of his dismissal, his annual basic salary was <s>N</s>6,132,000.00.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">When the Claimant was cross examined by the Defendants counsel, he further told the court as follows: Before his dismissal, he was given a query and he answered the query. He also appeared before the SSDC and the PEC. The reports of the SSDC and PEC where never shown to him. During the proceedings of the SSDC, questions were put to him and he answered some but did not answer some. He didn’t appear before the PEC the first time he was invited because the case was in the High Court. He appeared on 2<sup>nd</sup> invitation but there was no interaction. He only submitted his written response of his position on the case. The petitioner was not invited to face him. His written submission was a response to Prof. Okeke’s petition which petition was given to him through the V.C. but it did not contain the annexure, and one page of the petition was missing. The allegation of plagiarism was based on 5 articles of his students. It was alleged that he did not acknowledge them. The 5 articles were investigated by the PEC and he was dismissed by Council after the PEC and SSDC submitted their report. The PEC report went to SSDC who reported to Council before Council dismissed him with effect from 31<sup>st</sup> January 2014. He was suspended on 31<sup>st</sup> May 2013 and placed on half salary. He was on half salary till the time of his dismissal. His main complaint is that he was not given fair hearing as the particulars of the offence he was alleged to have committed was not given to him. He responded to Exhibit C15 in Exhibit C18 but he did not deny the allegation or respond to the allegations relating to his books because he was expecting further particulars. He was suspended on half pay and after his dismissal; he did not collect any further pay. His last pay slip was in April 2013.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Defendants’ sole witness, Roland Wabali, testified in line with facts pleaded in the statement of defence and stated that although the Claimant is a Professor of Education, he earned the rank in a fraudulent manner. It was his fraudulent activities that led to his eventual dismissal from the employment of the 1<sup>st</sup> Defendant. While in the employment, the Claimant engaged in acts of plagiarism with which he got promotions. The Claimant was served with the full particulars of the allegations of plagiarism in writing and he responded in writing. In his response, the Claimant failed to defend the allegation against him. Instead, he made counter allegation of malice against Professor Okeke. The Claimant was availed every opportunity to be heard and he presented a defence to the allegation. He submitted a written response to the petition and he was invited to all the proceedings. The Claimant appeared before the SSDC on 12/9/2013 where he said he had nothing to add to his written submission. The Claimant was also given a query dated 3/9/2013 to which he submitted a response. In the response, the Claimant failed to respond to the specific allegation of plagiarism leveled against him. In all, the Claimant made two written representations to the allegation against him. On receiving the petition against the Claimant, the 2<sup>nd</sup> Defendant referred it to the Professional Ethics Committee (P.E.C) for investigation. The P.E.C carried out investigation, considered the Claimant’s written submission, invited the Claimant to appear and issued a report dated 22/9/2013 where the Claimant was found culpable. The Claimant also appeared before the Committee. On the recommendation of the P.E.C, the matter was referred to SSDC. The Claimant submitted a written response and appeared before the Committee. The SSDC found against the Claimant and referred the matter to the 4<sup>th</sup> Defendant. The Claimant was then dismissed. This sequence of investigation was in accordance with University Statute, Rules and Regulations, and the conclusions were arrived at after due process of fair hearing. The petition against the Claimant was not based on Professor Okeke’s books alone. There were other instances in the past where the Claimant was accused of plagiarism. The committees found clear evidence of plagiarism as alleged in the petition. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The 1<sup>st</sup> Defendant counter claimed for <s>N</s>1,621,210.99. In his evidence, DW1 stated that the Claimant was dismissed from the employment of the 1<sup>st</sup> Defendant with effect from 31/5/2013 and his salary ought to have terminated on that date. However, through inadvertence, payment of his half salary continued till December 2013. The Claimant’s half salary, after deductions of tax, pension, ASUU deductions and SSC, was the sum of <s>N</s>231,601.57. The amount overpaid to the claimant from May 2013 to December 2013 (7 months) was the sum of <s>N</s>1,621,210.99.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Under cross examination by the Claimant’s counsel, DW1 told the court that he was the secretary of the SSDC as at the time the proceedings against the Claimant was conducted. It was on the basis of the report of the committee that the Claimant was dismissed. The Claimant and Professor Okeke did not meet to face each other before the committee.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Having carefully considered the facts pleaded by the parties, the evidence adduced by them and the submissions of the respective counsels in the final written addresses, two issues are to be determined in this matter. The issues are:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">1. Whether the Claimant has shown that his dismissal from the employment of the 1<sup>st</sup> Defendant was unlawful to entitle him to the reliefs he sought in this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">2. Whether the 1<sup>st</sup> Defendant has proved its Counter Claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size: 12pt; font-family: "Comic Sans MS";">ISSUE ONE</span></u></b><b><span style="font-size: 12pt; font-family: "Comic Sans MS";">.<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">From the facts adduced by the parties, the Claimant was an academic staff in the 1<sup>st</sup> Defendant’s employment until January 2014 when he was dismissed from the employment effective from 31<sup>st</sup> May 2013. The cause of the instant action is the dismissal of the Claimant from the employment of the 1<sup>st</sup> Defendant vide the letter dated 8<sup>th</sup> January 2014 which is in evidence as Exhibit C19. The Claimant’s complaint in this action is that his dismissal is unlawful as it was not in accordance with the statute governing his employment and the principle of fair hearing. On the other hand, the Defendants contend that the Claimant was validly dismissed from the employment of the 1<sup>st</sup> Defendant. As have rightly been submitted by the Defendants’ counsel, it is the law that a Claimant who alleges unlawful dismissal from employment must plead and prove the following facts to succeed in his claim:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l3 level1 lfo13"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">i.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">That he or she is an employee of the Defendant,<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l3 level1 lfo13"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">ii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">Place before the court the terms of his or her employment and the <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: .25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">terms and conditions of the employment, <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l3 level1 lfo13"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">iii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">State who can appoint and who can remove him,<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l3 level1 lfo13"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">iv.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">In what circumstances his or her employment can be determined, and<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l3 level1 lfo13"><!--[if !supportLists]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">v.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size: 12pt; font-family: "Comic Sans MS";">In what manner the said terms of the employment were breached by <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: .25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">the Defendant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">See <b>OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt.572) 1791 at 1809.</b> The Claimant has sought from this court, among others, a declaration that his dismissal from the employment of the 1<sup>st</sup> Defendant is null and void, and orders setting aside the dismissal and reinstating him to his employment. The Claimant has to satisfy the court, upon the facts alleged by him, that he is entitled to these reliefs.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The fact that the Claimant was an employee of the 1<sup>st</sup> Defendant is not in issue in this case. In Paragraphs 2 and 19 of his Statement of Facts, the Claimant pleaded that his employment with the 1<sup>st</sup> Defendant is regulated by the University of Port Harcourt Act which enacted the procedure for dismissal of academic staff of the 1<sup>st</sup> Defendant. The Claimant has also pleaded in Paragraph 7 that his employer, the 1<sup>st</sup> Defendant, is a creation of statute. From the reliefs sought by the Claimant and the facts of his case, it appears to me that the Claimant found his case on statutory employment. The principle of law is that the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. See <b>RAJI vs. UNIVERISTY OF ILORIN (2008) All FWLR (Pt. 435) 1832</b>. In this case, the Claimant has referred to the University of Port Harcourt Act as giving his employment a statutory coloration. I have examined the provisions of the Act. The 1<sup>st</sup> Defendant is established in Section 1 of the Act and in Section 16 thereof, the procedure for removing </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">academic or administrative staff f</span><span style="font-size: 12pt; font-family: "Comic Sans MS";">rom service is provided. The said Section 16 of the Act provides:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">“(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall- <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";"> (a) give notice of those reasons to the person in question; <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(b) afford him an opportunity of making representations in person on the matter to the Council; and <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(c) if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements- <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(i) for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; or <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: -32.25pt"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(2) The Vice-Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interests of the University, suspend such member and any such suspension shall forthwith be reported to the Council. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by the Council; and for the purposes of this subsection "good cause" means- <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on half pay and the Council shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to- <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(a) whether to continue such person's suspension and if so, on what terms (including the proportion of his emoluments to be paid to him); <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(b) whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension; <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(c) whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.5in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine, <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">and in any case where the Council, pursuant to this section, decides to continue a person's suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) above to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:1.0in;text-align:justify;text-indent: -.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">(6) Nothing in the foregoing provisions of this section shall prevent the Council from making regulations for the discipline of other categories of staff and workers of the University as may be prescribed.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">This procedure provided in the Act relates to disciplinary action against staff of the 1<sup>st</sup> Defendant before the staff can be removed from service. The procedure has become a condition of service in the employment of </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">academic or administrative or professional staff </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">of the 1<sup>st</sup> Defendant. It is settled principle of law that where the terms and conditions of a contract of employment are specifically provided for by statute or regulations made there under, it is said to be an employment with statutory flavour or contract protected by statute. See<b> OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; BAMGBOYE vs. UNIVERSITY OF ILORIN (2001) FWLR (Pt. 32) 12; OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42.</b> In view of the provisions of the Act, it is obvious that the Claimant’s employment is protected by statute. In such an employment, the staff cannot be validly removed from the employment unless the provisions provided in the statute for removing the staff is followed strictly. See<b> ADENIYI vs. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (Pt. 300) 426; OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 42.</b> Therefore, for the dismissal of the Claimant to be valid, the provision of the Act must be seen to have been strictly complied with. In order words, for the Claimant to succeed in his claim, he must prove that the Defendants did not comply with the procedure stipulated by law for his removal.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Before I evaluate the evidence adduced by the Claimant in support of his case, let me summarize the applicable procedure in the Act for dismissal of staff of the 1<sup>st</sup> Defendant. By the provision of Section 16 (1) of the Act, before an academic or administrative or professional staff of the 1<sup>st</sup> Defendant can be validly dismissed from service, the following statutory process must be observed: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">i. The power to remove academic or administrative or professional staff of the 1<sup>st</sup> Defendant from service is exercisable only by the council, which is the 4<sup>th</sup> Defendant in this action.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">ii. It must have appeared to council that there are reasons for the removal of the staff on grounds of misconduct or of inability to perform the functions of his office or employment,<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iii. The Council must give notice of those reasons or allegations to the person in question,<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iv. The Council must afford the staff an opportunity of making representations in person on the matter to the Council,<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">v. The Council shall, if the Claimant or any three members of the Council so requested within the period of one month from the date of notice of allegation to the staff, constitute a joint committee of the Council and the Senate to investigate the matter and report to the Council or afford the Claimant an opportunity of appearing before the investigating committee and being heard with respect to the matter.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">vi. The Council, after considering the report of the investigating committee, is satisfied that the staff in question should be removed, and<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">vii. The Council then removes the staff by an instrument in writing signed on the directions of the Council.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In light of the above, I must look at the disciplinary procedure adopted in respect of the Claimant’s case by the Defendants to see whether the Defendants complied with the procedure laid down in the Act when the Claimant was dismissed from employment. From the facts of the Claimant’s case, the process that ensued up to the time of the Claimant’s dismissal went thus: Prof. Okeke addressed a petition dated 20/6/2012 to the 2<sup>nd</sup> Defendant alleging acts of plagiarism against the Claimant. The 2<sup>nd</sup> Defendant referred the petition to the Professional Ethics Committee for investigation. The PEC in turn referred the petition to the Dean, Faculty of Education to investigate the petition. Upon receipt of the report of investigation from the Faculty of Education, the PEC indicted the Claimant and recommended that the petition be referred to the Senior Staff Disciplinary Committee for further investigation. Based on PEC recommendation, the 2<sup>nd</sup> Defendant referred the petition to the SSDC for further investigation. The SSDC carried out its proceedings, found the Claimant culpable in the allegation and recommended that the Claimant be dismissed from service. The SSDC referred the matter to Council who deliberated on the report of the SSDC and directed the Claimant’s dismissal. The dismissal was communicated to the Claimant in a letter dated 8<sup>th</sup> January 2014. The Claimant averred in addition that to justify and satisfy the requirement for his dismissal, he must be confronted with the allegation, demand for his response, invite him and Professor Okeke to council or Committee of Council to hear from them, serve him a copy of proceedings of Council or its committee. The Claimant said the procedure prescribed in the Act for dismissal of Senior Staff of the 1<sup>st</sup> Defendant was not complied with in his dismissal which also violated his right of fair hearing. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">A number of documents and reports were tendered by the Claimant. Among them is Exhibit C16 which is the petition of Prof. Okeke dated 20/6/2012 and addressed to the 2<sup>nd</sup> Defendant (Vice-Chancellor of 1<sup>st</sup> Defendant). Exhibit C14 is a Memo dated 22<sup>nd</sup> September 2012 from the Chairman of PEC to the 2<sup>nd</sup> Defendant forwarding the report of its investigation to the 2<sup>nd</sup> Defendant. The PEC report contains that on 19<sup>th</sup> July 2012, the 2<sup>nd</sup> Defendant referred Prof. Okeke’s petition accusing the Claimant of plagiarism to the PEC for investigation. The Dean, Faculty of Education was given a copy of the petition and annexure to investigate and report back to the PEC. After detailing the proceedings of the committee, the report contains that the PEC found the Claimant to have engaged in plagiarism and recommended that the case be referred to SSDC for further investigation. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Upon examining the defence, it is observed that the Defendants did agree that the sequence of events or investigations as stated by the Claimant was so. The Defendants aver that on receiving the petition against the Claimant, the 2<sup>nd</sup> Defendant referred it to the Professional Ethics Committee for investigation. The P.E.C carried out investigation and issued a report dated 22/9/2012 where the Claimant was found culpable. On the recommendation of the PEC, the matter was referred to SSDC who, on further investigation, found against the Claimant and referred the matter to the 4<sup>th</sup> Defendant Council. The Claimant was dismissed by the 4<sup>th</sup> Defendant. Among the documents tendered by DW1 are those marked Exhibits D3, D6, D7, and D10. Exhibit D10 is a Memo from the Dean, Faculty of Education to the Chairman PEC containing the report of faculty investigation. Exhibit D6 is the PEC report dated 22<sup>nd</sup> September 2012. Exhibit D3 is the minutes of the meeting of SSDC held on 12<sup>th</sup> September 2013. Exhibit D3 contains at Page 2 that the matter was referred to the SSDC by the Vice Chancellor on 7<sup>th</sup> February 2013 for further investigation. Exhibit D7 is the Report of SSDC to Council dated 3<sup>rd</sup> December 2013 where it was recommended that the Claimant be dismissed from service with effect from the date of his suspension. The Defendants’ however aver that the sequence of investigations were in accordance with University Statute, Rules and Regulations and the conclusions were arrived at after due process of fair hearing was observed.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">By virtue of Section 16 (1) of the Act, in the matter of removal of academic, administrative or professional staff of the 1<sup>st</sup> Defendant, the disciplinary proceeding is initiated by the Council of the 1<sup>st</sup> Defendant after forming an opinion that there are reasons for the removal of the staff in question and the process is also concluded by the Council when it removes the staff. The Claimant’s dismissal letter is in evidence as Exhibit C19. The letter reads:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">“Dear Professor Nnabuo,<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">DISMISSAL FROM SERVICE<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Council at its 141<sup>st</sup> meeting held on Thursday, 5<sup>th</sup> December 2013, considered the report of the Senior Staff Disciplinary Committee which investigated the allegation of plagiarism leveled against you by Professor B. S. Okeke and directed that you be dismissed from service of the University with effect from 31<sup>st</sup> May 2013.<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Consequently, I regret to inform you that you are hereby dismissed from the service of the University of Port Harcourt with effect from 31<sup>st</sup> May 2013.<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Please hand over all university property in your possession, including your staff identity card, to your head of department.<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Yours sincerely,<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Signed:<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Matilda Nnodim (Mrs.)<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Registrar & Secretary to Council.”<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:53.85pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">It is clear from the content of the letter that the decision to dismiss the Claimant was taken by the 4<sup>th</sup> Defendant after considering the report of the SSDC. Now, the allegation for which the Claimant was dismissed was the petition of Prof. Okeke. The petition was written to the 2<sup>nd</sup> Defendant who initiated investigation into the allegation by first referring the matter to the PEC. It was not the Council who initiated the disciplinary proceedings. In fact, the petition never went to Council until it was considering the report of the SSDC. The 2<sup>nd</sup> Defendant did not refer to or purport to have been instructed by Council to refer the petition for investigation. The Defendants have not also shown that the 2<sup>nd</sup> Defendant had the authority of Council to initiate disciplinary proceeding leading to dismissal of academic or administrative or professional staff of the 1<sup>st</sup> Defendant. That is to say at the time disciplinary proceedings were commenced against the Claimant, the Council was not seized of the petition and did not initiate the disciplinary proceedings. The power of the 4<sup>th</sup> Defendant under Section 16 (1) of the University of Port Harcourt Act is a statutory disciplinary power. Such statutory disciplinary power cannot be delegated. Although the 2<sup>nd</sup> defendant who initiated the disciplinary process is created by the same Act as an agent of the 1<sup>st</sup> Defendant, the Council cannot delegate its disciplinary power and responsibilities in Section 16 (1) of the Act to the 2<sup>nd</sup> Defendant. It is clear to me that, prior to the commencement of investigations, the Council did not have the opportunity of forming an opinion that there are reasons for the removal of the Claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The only time the Council was involved in the disciplinary process was when the report of the SSDC was forwarded to it. In Exhibit C19, upon consideration of the report of SSDC, the Council merely directed the dismissal of the Claimant. I find nothing to show that the SSDC was such a committee constituted by Council under Section 16 (1)(c) specifically to try the allegation against the Claimant. No evidence that the Council gave notice of the reasons for dismissal of the Claimant to him or that the Claimant was invited or given any opportunity to appear before the council to defend himself before he was dismissed. The facts are thus clear that the Council did not give notice of the reasons or allegations for the removal of the Claimant to him and did not afford the Claimant an opportunity of making representations in person on the matter to the Council.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The 1<sup>st</sup> Defendant’s Professional Ethics Committee and the Senior Staff Disciplinary Committee separately investigated the petition against the Claimant and found the allegations to be true. The facts and reports before me also show that the Claimant was given opportunity to appear before these committees and he did make representations, both verbal and written, to the committees. The reports of these committees formed the basis on which the Council relied to dismiss the Claimant. All these facts are not lost to me. I must however reiterate the principle of law which is that where a statute lays down a procedure for doing a thing, that thing cannot be done in any other way. See <b>OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra)</b>. Section 16 of University of Port Harcourt Act confers on the staff of the 1<sup>st</sup> Defendant a status over and above the normal contractual relationship of master and servant. Consequently, the only way to put an end to such contract of service having statutory flavour under the University of Port Harcourt Act is to adhere strictly to the procedure laid down in the Act. Therefore, notwithstanding the investigation by different committees, the provision of the Act was not satisfied. Section 16 (1) (a) and (b) of the Act provides that notice of the allegation or the ground for which the staff is intended to be dismissed must be given to the staff by the Council and the staff must be given an opportunity of making representations in person on the matter to the Council. The Claimant was not afforded these opportunities before he was dismissed. The fact that the Claimant was not given an opportunity to appear before Council or any committee set up by Council to defend himself before he was dismissed is sufficient ground to hold that the Claimant was not given fair hearing by the Council before dismissing him. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In view of the non-compliance by the Defendants with statutory provisions governing the Claimant’s employment with the 1<sup>st</sup> Defendant, I do not think it is necessary to waste further time on this matter. It is now settled that an employment which has statutory flavour can only be terminated in the manner specified in the relevant statute and where it was not so terminated, the termination will be voided. In <b>OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 46 to 47, </b>the Supreme Court held-<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";"> <b><i>“When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoy a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void … Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void.”<o:p></o:p></i></b></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Having reviewed the Claimant’s case, I am satisfied that he has established his case. I find that the dismissal of the Claimant did not follow the procedure for dismissal as laid down in the Act. The result is that the dismissal of the Claimant from the 1<sup>st</sup> Defendant’s employment is unlawful, null and void and ought to be set aside. I find that the Claimant has proved his case and is entitled to his reliefs. Issue one is resolved in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size:12.0pt;font-family:"Comic Sans MS"">ISSUE TWO</span></u></b><span style="font-size:12.0pt;font-family:"Comic Sans MS"">:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">In the Defendants’ statement of defence, a counter claim was included for the 1<sup>st</sup> Defendant in the sum of <s>N</s>1,621,210.99 against the Claimant. In the evidence of DW1, he stated that the Claimant was dismissed from the employment of the 1<sup>st</sup> Defendant with effect from 31/5/2013 and his salary ought to have terminated on that date. However, through inadvertence, payment of his half salary continued till December 2013. The Claimant’s half salary, after deductions of tax, pension, ASUU deductions and SSC, was the sum of <s>N</s>231,601.57. The amount overpaid to the Claimant from May 2013 to December 2013 (7 months) was the sum of <s>N</s>1,621,210.99. The Claimant denied the counter claim in his reply to the statement of defence and defence to counter claim. When he was cross examined, the Claimant said he was suspended on half pay and after his dismissal; he did not collect any further pay. His last pay slip was in April 2013 and he does not know of any additional payment.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">From the facts of the case, the Claimant was suspended from duty on 31<sup>st</sup> May 2013 vide Exhibit C17 and placed on half salary. He was dismissed in a letter dated 8<sup>th</sup> January 2014 which dismissal was said to be with effect from 31<sup>st</sup> May 2014, which is the date of suspension. It is clear to me that the sum being claimed from the Claimant is the half salaries he was paid from the date of his suspension to the date of the dismissal letter. What the 1<sup>st</sup> Defendant tried to say is that since the Claimant was dismissed effective from 31<sup>st</sup> May 2013, all the half salaries he was paid within the period of suspension up to the date he received the dismissal letter, were not earned by him and ought to be returned.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In Exhibit C19, dismissal letter, the 4<sup>th</sup> Defendant had a meeting on 5<sup>th</sup> December 2013 where the decision to dismiss the Claimant was taken. The Claimant was subsequently informed in Exhibit C19 dated 8<sup>th</sup> January 2014 that he has been dismissed retrospectively from the date of his suspension. In my view, when the Claimant was suspended on 31<sup>st</sup> May 2013 and placed on half salary, he was still a staff of the 1<sup>st</sup> Defendant and he was entitled to the half salaries. The half salaries where earned by the Claimant when he was undergoing disciplinary action of suspension and Section 16 (4) of the University of Port Harcourt Act which authorized the payment of half salary to a staff under suspension did not empower the 1<sup>st</sup> Defendant to recover the half salaries paid to staff during suspension if the staff was eventually dismissed. In view of the foregoing, I do not think the 1<sup>st</sup> Defendant can recover from the Claimant the half salaries he was paid when he was on suspension. I resolve issue two against the 1<sup>st</sup> Defendant. Accordingly, I find no merit in the counter claim and same is accordingly dismissed.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In concluding this judgment, it must be mentioned that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In such a situation, the court has the power to set aside the dismissal and order the reinstatement of the employee. In the circumstance of this case where it is found that the contract of employment is guided by statute, the Claimant is entitled to a consequential relief of reinstatement and payment of his outstanding salary from the time his employment was unlawfully terminated. See <b>KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199; OLANIYAN vs. UNIVERSITY OF LAGOS (supra); OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In the result, this court hereby grants all the reliefs sought by the Claimant. For the avoidance of doubt, it is hereby ordered as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">i. The dismissal of the Claimant from the employment of the 1<sup>st</sup> Defendant in the letter dated 8<sup>th</sup> January 2014 is hereby set aside, same having been found to be unlawful, null and void.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">ii. The Claimant is hereby reinstated to his employment in the 1<sup>st</sup> Defendant </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">and to the position, rank and level he occupied in the employment as at the time of the unlawful dismissal. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iii. The Defendants are ordered to pay to the Claimant all his outstanding wages, salaries, allowances and other emoluments accruing to him from the date of the unlawful dismissal up to the date of this judgment.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iv. Cost of <s>N</s>200,000.00 is awarded to the Claimant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The orders hereby made are to be carried out within 30 days from the date <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">of this judgment. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><b><span style="font-size: 13pt; font-family: "Comic Sans MS";">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Judge</span></p>