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JUDGMENT By an amended complaint dated and filed on the 29th February 2009, but filed on March 1, 2011, the claimant’s claims against the respondent are as follows: (1) A declaration that the respondent’s dismissal of the claimant from its employment was wrongful, unlawful or ultra vires, null and void. (2) A declaration that the respondent did not give the claimant a reasonable opportunity of putting his case. (3) A declaration that the respondent’s trial of the claimant was contrary to the rules of natural justice, fair trial and fair hearing. (4) A declaration that the respondent has no jurisdiction to sit on appeal over its decision and that its review of its previous decision over the allegation against the claimant was unlawful and illegal. (5) A declaration that the respondent’s retrial or re-adjudicating the allegation against the claimant is contrary to public policy. (6) A declaration that the respondent’s right of action as at the time it re-opened or retried the claimant was extinguished. (7) A declaration that the respondent has by its letter of 6th January 2009 injured the claimant’s reputation, portrayed him as a hooligan, irresponsible, non-trustworthy and lowered his estimation in the eye of every right thinking member of the society. (8) An order setting aside the respondent’s dismissal of the claimant from its service. (9) The sum of one hundred million naira (N100,000,000) being special, general, exemplary and aggravated damages. Accompanying the complaint are the statement of facts, list of witness, list of documents and exhibits to be relied upon. In reaction, the respondent entered appearance, filed its statement of defence, list of witness and documents to be relied on. The case of the claimant is that he is an academic, and lecturer of repute with the respondent, at its Epe Campus. That he was employed on 13th August 1997 as an Assistant Lecturer in the Department of Electronics and Computer Engineering, Faculty of Engineering of the respondent through the respondent’s letter of 18th August 1997. That sometime in September 1998, he sought the consent of the respondent to take up a part-time employment with the Federal College of Education (Technical), Akoka. That following the respondent’s unreasonable withholding of its consent, he took up a part-time employment with the Federal College of Education (Technical) Akoka in March 1999 till January 2001. That sometime in May 2001, the respondent issued to him with a booklet captioned “Regulation Governing Service of Senior Staff of the Lagos State University” which was to come into operation on 1st October 1998. The claimant further averred that his part-time employment with the Federal College of Education (Technical) Akoka was never at any material time detrimental to the respondent vis-à-vis his functions as he never absented from his duties nor mis-performed his duties/functions to the respondent. That during the time of his said employment with the College, the respondent promoted him to Lecturer II. The claimant continued in his pleadings that sometime in 2004, there was a petition against him for engaging in the employment at the College while he was in the full time employment of the respondent resulting in the stoppage of payment of his monthly salaries. That subsequently, a committee was set up and to which the respondent’s Governing Council delegated the power to investigate the petition or try him or adjudicate therein and the committee invited him to its meeting/sittings, considered his written and oral representations, submissions/evidence and thereafter pardoned him. That the decision of the said committee to pardon him was confirmed by the Vice Chancellor of the respondent at that time, Professor Abisogun Leigh. That subsequently, the respondent lifted the stoppage on his salary and his outstanding salaries were paid to him. The claimant further pleaded that following the assumption of office of another Vice Chancellor sometime in 2005, he received a letter in November 2005 from the respondent bordering on the same issue. That he replied that the issue is closed as it has been considered by a committee duly constituted and cloaked with relevant powers. That thereafter, he never heard anything about the issue except that in May 2006, his salary was stopped for no reason and he was not informed of any reason. That the non-payment of his salary continued even though he was at all material time performing his duties which earned him promotion to Lecturer 1 in May 2007. That the respondent informed him of his promotion through its letter of 23rd May 2007. And that in July 2007 he applied to resign his appointment which request was turned down by the respondent. This resulted in the restoration of his salary in January, 2008. That despite the restoration of his salary in January 2008, the respondent never paid him any salary until November and December 2008. Continuing, the claimant further averred that sometimes in June 2008, someone called him on phone to tell him that there would be a meeting of the Senior Staff the next day and that his presence was highly needed. That he naively attended the meeting on the said day; therein a group of gentlemen and women introduced themselves as a committee duly constituted to hear as a fresh case the issue of his double employment between March 1999 to January 2001 and that he was to state what he knew about that. The claimant stated in his pleadings that he requested to be given adequate opportunity and time to prepare and present his case and as well instruct a counsel of his choice but the committee refused the request insisting that they were not to adjourn because of him and that whether he addressed the issue or not they would still arrive at a decision on the issue. That he then declined to comment on or say anything about the issue and after a while, the committee told him that he was free to go. But that on 27th January 2007, he received a letter dated 6th January 2009 from the respondent dismissing him from the service of the respondent, resulting in the respondent not paying him the benefits entitlements and gratuity that inured to him. The claimant averred further that by the respondent’s action aforesaid he and his family were subjected to penury, untold hardship and deprivation as he was unable to meet his financial obligations to his family resulting but not exclusively to the untimely death of his father. Also that the respondent’s publication of 6th January 2009, to the effect that he was dismissed from its employment has lowered his estimation in the eyes of every right thinking member of the society, brought him to contempt, hatred and has constituted a stop to his being employed by other institutions resulting in loss of his means of livelihood. The claimant also states that the respondent’s publication was read by its secretaries, typist who typed the letter, the Deputy Registrar, the Dean of Engineering and some other individual and institutions, some of who he cannot say. He also avers that both orally and through his Solicitors, he requested the respondent to reverse its dismissal to no avail. The claimant, therefore, claims against the respondent as per the complaint and asked for damages and special damages in the sum of one hundred million naira (N100,000,000.00). The special damages are as follows: (i) Entitlement upon resignation - N 1,440,000.00 (ii) Unpaid entitlement from promotion from October 2006 to the date of resignation - 870.000.00 (iii) Inconvenience, hardship, penury, deprivation and loss of father - N25,000,000.00 (iv) Loss of means of livelihood - N30,000,000.00 (v) Exemplary/aggravated damages for lowering of estimation and odium - N25,000,000.00 Total - N82,310,000.00 Plus general damages - N17,690,000.00 Grand total - N100,000,000.00 The defence of the respondent is that the claimant was offered a temporary appointment as an Assistant Lecturer in the Department of Electronics and Computer Engineering on 2nd June 1997 and not 18th August 1997 as claimed by the claimant. That among the terms of employment and schedule of duties of the claimant is full time lecturing of students, conducting research and dedication to the respondent with obligation not to accept paid or continuous work full or part-time employment with third parties without the consent of the Governing Council of the respondent. That all these terms were incorporated in the memorandum of employment signed by the claimant before he resumed duty with the respondent. That the claimant after assumption of duty, his employment was later confirmed and made permanent. That the letter of appointment which incorporated the conditions in the letter of temporary employment of 2nd June 1997 made the claimant’s appointment subject to regulations and conditions of service guiding the senior staff of the respondent upon signing a memorandum of appointment. That the claimant was given the regulations governing the conditions of service of senior staff of the respondent which was effective at the time of confirming his employment which is immediately after he was employed and not in 2001. The respondent denied that the claimant sought the respondent’s consent or complied with its rules and regulations before he engaged in double employment while working with the respondent and that the claimant should prove that he sought the respondent’s consent. The respondent averred that before staff or employee of the University can engage in any full or part-time employment or duty with third party he must seek the permission of the respondent. That the respondent was notified by a petition or complaint on 5th May 2002 by a student in the Electronics/Computer Engineering Department of the respondent. That the claimant and other lecturers in his Department while in the employment of the respondent were involved in full time lecturing with another school. That after the receipt of the letter dated 5th May 2002, the respondent through the Dean Faculty of Engineering in order to get to the root of the matter set up a panel of enquiry to look into the allegation of double appointment against the claimant and others involved. That all the affected lecturers including the claimant were invited to present their own side. The respondent further averred that the claimant and others presented facts and documents in their defence, and after hearing and consideration of the documents, including a letter dated 26th November 2002 from the Federal College of Education (Technical), Akoka, Lagos written in response to the request of the respondent, the panel discovered that the claimant never sought permission pursuant to the conditions of service guiding his employment before engaging in another gainful employment. While fully employed by the respondent, he was also in double employment with the Federal College of Education (Technical), Akoka, Lagos. That there was also allegation that the claimant was also employed by the Federal College of Fisheries and Marine Technology, Victoria Island, Lagos which was not proved though the claimant’s name appeared on the graduation ceremony programme of the school as a lecturer. The panel then recommended that the claimant be referred to the Disciplinary Committee of the respondent. The panel’s report is dated 27th August 2003. That the panel found that the claimant was while employed with the respondent was also engaged in double employment with the Federal College of Education (Technical), Akoka, Lagos for 19 months and recommended that he faces a Disciplinary Committee. However, before the constitution of the Senior Staff Disciplinary Committee the claimant pleaded for more time to present his case. This, the respondent in the spirit of fair hearing and fairness allowed the claimant adequate time and asked that he comments in writing on the allegation. That the claimant by his letter to the Vice-Chancellor of the respondent dated 30th November 2005 admitted to be engaged in double employment and pleaded for clemency. Thereafter, the respondent in its letter to the claimant dated 7th December 2005 requested the claimant despite his appeal for clemency to state the period he was involved in double employment. That the respondent in order also to be fair to the claimant and others involved and to get to the root of the matter, petitioned the E.F.C.C which also investigated the matter and found that the claimant and one Mr. Andy Madubuko were engaged in multiple public sector employments and suggested that the respondent takes the appropriate action against the claimant and Mr. Andy Madubuko. That pursuant to a letter from the E.F.C.C dated 3rd July 2007, the respondent wrote to the claimant to forward his response to the allegation of double employment and why disciplinary action should not be taken against him. That the claimant who knew the allegation of double employment against him was true in view of the overwhelming evidence against him, instead of responding to the allegation against him offered to resign his appointment from the respondent, which the respondent refused based on the pending disciplinary case against him. That the claimant was promoted before the allegation of double employment was proved against him by the Disciplinary Committee Panel and the Senior Staff Disciplinary Committee in accordance with the contract of employment between the parties. Furthermore, that in line with the recommendation of the panel of inquiry set up by the Dean Faculty of Engineering, the claimant was then referred to panel “N”, a subcommittee of the Senior Staff Disciplinary Committee for further investigation of the allegation. That the panel also invited the claimant and others to help it in its investigation. That Panel “N” in the course of its duty held general meetings on 12th March 2008, 26th and 27th March 2008 respectively and considered many documents, and the claimant also appeared before Panel “N” and amongst others admitted to be involved in double employment with the Federal College of Education (Technical) Akoka, for 19 months. That Panel ‘N’ after hearing from the claimant along with the facts and documents against him found that he has a case to answer and recommended that he faces the Senior Staff Disciplinary Committee. That the Senior Staff Disciplinary Committee also invited the claimant to present his case and after listening to him and considering the evidence found him guilty of misconduct and recommended that he be dismissed from the respondent’s employment. That the Governing Council of the respondent considered the report of the Senior Staff Disciplinary Committee upheld same and communicated this to the claimant by its letter dated 6th January 2009. The respondent averred that the claimant was given all opportunity to defend himself, and was heard on the allegation of double employment against him before the respondent took the decision to dismiss him from its employment. The respondent denied that the claimant ever sought its permission before he took up another employment while he was employed by the respondent. And that after the panel set up by the Dean Faculty of Engineering found that there was a case against him, the matter was not closed nor was he pardoned by the respondent. The respondent also averred that due to being engaged in another work, the claimant neglected and abandoned his duties which were detrimental to its students and it is a clear breach of rules and regulations of the respondent and his contract of employment. That claimant was given adequate notice and time to appear before the panels and the Senior Staff Disciplinary Committee that considered his case, and that the claimant defended himself before the Disciplinary Committee and never requested for a lawyer and presented documents in support of his case before the decision to dismiss him was taken. That as a result of the decision of the respondent to dismiss him, he is not entitled to any benefits or entitlements. The respondent averred that the claimant did not follow the terms of the memorandum of appointment, the regulations and conditions of service guiding senior staff of the respondent in engaging in double employment while working with the respondent. That he was aware of the allegations against him before Panel ‘N’ and when he appeared before the Disciplinary Committee and participated in all the proceedings. The respondent also averred that the claimant did not take steps or exhaust all the remedies under the respondent’s rules and regulations and fulfill all conditions precedent as he did not appeal the decision of the Governing Council before the institution of this action. The respondent concluded that it will rely on all the letters, documents, proceedings, reports, and all other documents relevant to this action. The respondent therefore prayed that this action be dismissed as the action is frivolous, vexatious and abuse of the process of the court and should be dismissed with substantial cost. The claimant gave evidence on oath for himself as Claimant’s Witness (CW). He told the court that he is currently a lecturer at the American University of Nigeria, Yola. That he lives at No. 10 Hausawa Road, off Army Barracks Road, Jimeta, Yola. That he knows the respondent in this suit. That the respondent was his previous employer. That the respondent employed him in 1997 as an Assistant Lecturer. The he was given an employment letter and was told to come to the office of the Registrar to fill some forms. He testified that when he finished filling the forms, he read in the employment letter that there was a booklet containing the rules and regulations of the respondent. That he was told that the booklet was not available at the time of filling the forms. That the booklet was not made available to him. The claimant continued that in January 1999, he spoke with his Dean, that he wanted to take up part-time lecturing with the Federal College of Education (Technical), Akoka, Lagos but the Dean did not respond. That in March 1999, he started the part-time work. That by January 2001 the Dean informed them at a meeting that they were not allowed to engage in part-time teaching without authorization from the University. The claimant told the Court that he then duly terminated the part-time lecturing with FCE (Technical) Akoka. The claimant further testified that it was in June 2001 that the booklet containing the Rules of the University was given to them. That sometime in 2002, some people alleged that he had double employment and a query was issued to him and he promptly responded. That in May 2004, his salary was stopped and the respondent set up a committee which he appeared before in September 2004. That the Vice-Chancellor and others were in the Committee. He continued that the Vice-Chancellor at the Committee said verbally that he should go as he was pardoned. This was after series of questions. That his salary was then restored in 2004 as well as other entitlements. That he was also promoted. The claimant continued that in 2005, a new Vice Chancellor was appointed. In 2006, he received another letter bordering on the same allegation and he responded that the previous Vice Chancellor had dealt with the case. The claimant told the court further that to his surprise, in May 2006, his salary was stopped again. That this lingered till 2007, and when it became unbearable, he tendered a letter of resignation in September 2007. That the respondent replied him in December 2007 that he has a case to answer and so he cannot leave the services of the respondent. He continued that in January 2008, the respondent wrote to him restoring his salary, which he was not paid until November 2008. That in June 2008 he was informed through a phone call that there was going to be a disciplinary meeting the following day and so requested his presence. The claimant further stated that at the disciplinary hearing, he told the committee that the allegation against him has been dealt with by the previous Vice-Chancellor and so he needed a lawyer to stand for him, which the committee turned down. That in 2009, he received a letter that he was dismissed while acknowledging that the previous Vice Chancellor pardoned him for the offence alleged against him. That he then contacted his lawyer who wrote to the respondent and the respondent replied the letter. He told the Court that the part-time lecturing at FCE (Technical) Akoka was at weekends, and so he did his job at LASU diligently. That in 2001 he was even promoted from Assistant Lecturer to Lecturer II. That the forms he signed when he was employed are with the respondent. The claimant in conclusion prayed the court to grant all his claims as per the originating process. Under cross examination, the claimant reported that he started work in American University of Yola in August 2009. He answered that he was employed in the respondent in June 1997. That at the point he was teaching at FCE (Technical) Akoka, he did not have the University Regulations. He also responded that the Dean did not give him permission to take up the part-time teaching at FCE (Technical) Akoka. That he did not know that it is a student who complained that he was engaged in part-time work. That the pardon the Vice Chancellor gave to him was not in writing. He told the Court that on 30th November 2005, he wrote a letter to the new Vice-Chancellor in response to the allegation against him. That he cannot remember whether the respondent responded to his letter of 30th November 2005. He answered that he is aware that the EFCC investigated the allegation of double employment against him. He also agreed that he saw the EFCC investigation only after the defence processes in this suit were filed. That he tendered his letter of resignation from the respondent on 24th July 2007. That the reply from the respondent was through a letter in September not December 2007 to the effect that he had a case to answer. Also that after his dismissal he did not write any appeal either to the Vice-Chancellor or the respondent’s Governing Council. He also answered that he did not mention anything about seeking an authorization to take up this part-time work in any of his correspondences with the respondent. There was no re-examination of the claimant’s witness. The claimant thereafter closed his case. The matter was thus adjourned to enable the respondent to open its case. However, the respondent’s witness failed to come to court on the date fixed for it to open its defence. This Court, therefore, took it that the respondent will not be calling any witness and consequently parties were deemed to have closed their respective cases. The Court then ordered parties to file and serve their respective written addresses starting with the claimant’s counsel as per Order 19 Rule 13(1) and (4) of the NIC Rules 2007. In his written address dated 4th June 2012 but filed on 5th June 2012, the claimant’s counsel raised the following issues for determination: (1) If the respondent or any of its committee has no jurisdiction to try an allegation of crime and/or if the respondent in trying the claimant’s alleged crime and/or gross misconduct breached the rules of natural justice and fair hearing, was the respondent’s dismissal of the claimant based upon its finding thereto lawful? (2) Whether the respondent was right in trying the claimant a second time and dismissing him after he was previously tried and or pardoned by the respondent’s former Vice Chancellor. (3) Whether the respondent’s dismissal of the claimant was in accordance with section 25(2)(a) – (c) and 25(i)(a)(i) of the Lagos State University Law Cap. L51 Laws of Lagos State of Nigeria 2005. (4) Whether the respondent’s right of action against the claimant is statute-barred. (5) Whether the claimant is entitled to damages as claimed. On issue one, the claimant’s counsel submitted that the twin principles of natural justice and fair hearing, viz, nemo judex in causa sua and audi alteram partem must be observed by all persons, institutions, agencies and governments in Nigeria and even beyond, citing Garba v. University of Maiduguri [1986] 1 NWLR (Pt. 18) 449 and section 36(1) and (2) of the 1999 Constitution. To Counsel, any trial in which a party is a judge in his own cause or the accuser is the investigator, the prosecutor, or the prosecutor is the judge is a nullity, citing Gani Fawehinmi v. Legal Practitioners Disciplinary Committee [1985] 2 NWLR (Pt. 7) 300, Tamti v. NCSB [2009] 7 NWLR (Pt. 1141) 631 at 652, Oloruntoba Oju v. Raheem [2009] 13 NWLR (Pt. 1157) 83 at 142 and Garba v. Unimaid (supra). That the respondent in trying the claimant was the accuser, the investigator, the prosecutor and the judge and this is demonstrated by the following: (a) That it was the respondent through the Dean who complained against the claimant. (b) That again the chairman of the respondent’s Panel ‘N’ that investigated the claimant and made out a prima facie case against him was a member of the Senior Staff Disciplinary Committee of the respondent that tried the claimant. (c) That the chairman of the respondent’s Senior Staff Disciplinary Committee who was the Vice-Chancellor of the respondent was a member of the respondent’s Governing Council that considered the recommendation of Senior Staff Disciplinary Committee that the claimant be dismissed and eventually dismissed the claimant based on that recommendation. (d) That Vice-Chancellor of the respondent was at all material times a member of the Council and the Faculties of the respondent. Counsel, therefore, submitted that the rules of fair hearing, fair trial and natural justice includes informing an accused the ingredients of the allegation against him as well as the punishment thereto and ensuring that he admits the ingredients. That in other words, the trial must satisfy itself that the accused or charged person indeed understood what he was said to have done and the implication. Counsel referred to Agagaraga v. F.R.N [2007] 2 NWLR (Pt. 1019) 586 at 602. Also that the above principle of law applies in any trial whether criminal or a quasi-criminal offence or investigation by any court, tribunal or committee. That the evidence before this court shows that these principles were not complied with by the respondent in investigating and trying the claimant. Furthermore, learned counsel submitted that it is trite that before finding a party guilty either on the basis of his admission or trial that the process leading to the admission must comply with the rules of natural justice, citing Uni-Ilorin v. Adesina [2010] 9 NWLR (Pt. 1199) 331 at 384. That the question, therefore, is did those panels and Council where the claimant allegedly admitted his guilt comply with the rules of natural justice and fair hearing prior to the admission? This, the counsel answered in the negative. To counsel, it is trite law that fair hearing includes giving parties reasonable opportunities of putting their case and meeting that of the opponent’s and this means allowing a party both a reasonable time to prepare for his case and to be represented by a lawyer of his choice as well as to be duly notified in writing of the offence or allegation against him and therefore submitted that the respondent’s trial and dismissal of the claimant is a nullity for being contrary to section 36 of the 1999 Constitution and section 25 (1)(a)(i) of the Lagos State University Law Cap. L51 Laws of Lagos State of Nigeria 2005 and rules of natural justice. Counsel submitted that the Governing Council of the respondent did not comply with the rules of natural justice by itself giving the notice of the complaint to the person involved and giving the person involved an opportunity to make representation before it. Alternatively, learned counsel submitted that the respondent has no right or jurisdiction to try the claimant for double employment which is a criminal offence, citing Dr. Sotekun v. Chief Akinyemi & ors [1980] 5 – 7 SC 1 and Garba v. Unimaid (supra). That where a disciplinary committee instead of a court of law/tribunal tried allegation of crime such a trial is null and void, citing Uni-Ilorin v. Oluwadare [2003] 3 NWLR (Pt. 808) 557 at 578. Therefore, that the respondent’s purported trial of the claimant for double employment which is a crime is null and void as it has no jurisdiction to do so. On issue two, the claimant’s counsel submitted that it is trite that the Vice-Chancellor of the respondent has the overriding jurisdiction of directing the activities of the respondent to the exclusion of any other person or authority within the respondent as provided in section 10 of the Lagos State University Law. That the Vice-Chancellor having pardoned the claimant as established in the claimant’s evidence in chief, no person or authority within the University has any right whatsoever to issue let alone try the claimant on the issue again. Also that the Vice-Chancellor’s pardoning of the claimant for the alleged engagement in double employment was an exercise lawfully done within the VC’s power under the respondent’s law by reason of which the respondent has no right to reverse. Learned counsel also submitted that pardon is both judicially and literally defined as the act of or an instance of officially nullifying punishment or other legal consequence of an offence, crime or wrong doing; and judicially speaking pardon is usually granted by the chief executive of a government or establishment according to Black’s Law Dictionary 7th Edition at page 1137 and Oxford Dictionary of English, 2nd Edition, page 1278. Therefore, that the Vice-Chancellor of the respondent, being its chief executive, his action directing the activities of the respondent vis-à-vis pardoning of the claimant is valid and subsisting. To counsel, the respondent’s purported re-opening of the issue of the claimant’s double employment amounts to the respondent approbating and reprobating which equity and in fact the Court should not condone. That the respondent, having known that the claimant had been pardoned, cannot subsequently turned round to dismiss him. On this issue counsel finally submitted that the respondent having the full knowledge that it has the right to investigate, try and dismiss the claimant but chose to pardon him has waived the right to do that subsequently and is thereby estopped from doing that. On issue three, the claimant’s counsel submitted that the respondent can only terminate the appointment of any of its academic staff upon a staff being convicted of any offence or having a conduct of a scandalous or disgraceful nature which the Council considers of such to render such person unfit to hold such office or such conduct which the Council considers to be such as to constitute failure or inability of the person to discharge the function of his office. To counsel, it is trite that conviction of a crime or misconduct or admission of committing a crime or misconduct is sufficient for dismissal only if the conduct constituting the crime or misconduct is inconsistent with the employee’s proper performance of his duties as an employee. Counsel referred to Chitty on Contracts, 29th Edition, Vol. 11 paragraphs 39 – 178. Counsel further submitted that there is nothing before this court to show that the claimant was convicted of any offence nor that he has any scandalous or disgraceful conduct or such a conduct that rendered him unfit to perform his duties to the respondent before his dismissal by the respondent. That during the period the claimant was alleged to engage in double employment, the respondent promoted him to Lecturer II and later to Lecturer 1. That under section 25(1)(a) of the Lagos State University Law it is only a joint committee nominated by the Council and composed of three members of the senate and three members of the Council that shall investigate any allegation leading to termination of the employment of any member of the academic staff. Also that the Senior Staff Disciplinary Committee is not a joint committee nominated by the Council to investigate the allegation against the claimant and if it is a joint committee of the Council, it did not investigate the allegation against the claimant; rather, it considered the report of Panel ‘N’. To counsel, it therefore, follows that the claimant was never investigated in accordance with the law since the purported investigation by Panel ‘N’ whose report the disciplinary committee of the respondent considered is a nullity. That assuming without conceding that it did, it did not comply with section 25(1)(a)(i) of the Lagos State University Law when it failed to give the claimant a written hearing notice or allowed him to be represented by a lawyer. On issue four, the claimant’s counsel submitted that in Lagos State, any action in contract must be maintained within 6 years of the accrual of the cause of action, citing section 8(1) of the Limitation Law Cap. L67 Laws of Lagos State of Nigeria Vol. 5, 2005. That the limitation period applied to a contract of employment as in any other contract. To counsel, the question is when did the claimant’s allege double employment occur and when did the respondent take action against him? That the claimant was alleged to have engaged in double employment between March 1999 to January 2001, and the respondent’s Governing Council took action against the claimant on 15th December 2008 that is almost 8 years from the date of the last cause of action. Counsel, therefore, submitted that as at the time the council was seized of the matter, the respondent’s right of action was barred. That same applied to Panel ‘N’ and the Senior Staff Disciplinary Committee of the respondent. That it was after the Panel ‘N’ forwarded its report of investigation through its letter of 12th May 2008 to the Vice-Chancellor of the respondent that the matter was referred to the Senior Staff Disciplinary Committee of the respondent. That it is trite law that once an action is statute-barred that there is nothing to build on it and that it also removes the right of action and the right of enforcement, citing Naber v. CSC Kano State [2007] 5 NWLR (Pt. 1190) 253 at 271, Ogboru v. SPDC (Nig) Ltd [2005] 17 NWLR (Pt. 955) 596 at 620. Counsel on this issue finally submitted that the matter was statute-barred. On issue five, learned counsel submitted that it is trite law that damages in law generally refers to a disadvantage which is suffered by a person as a result of the act or default of another for which a legal right to recompense accrues, and so damages are thus the preliminary recompense given by process of law to a person for the actionable wrong that another has done to him. Counsel referred to Kopek Construction Co. Ltd v. Ekisola [2010] 1 SC (Pt. 1) at 52. That having shown that the respondent’s dismissal of the claimant was both wrongful and unlawful, it follows that the claimant is entitled to recompense by this court. Counsel submitted that the claimant has proved in his evidence the special damages he suffered as a result of his unlawful dismissal by the respondent. Furthermore, and alternatively, counsel submitted that this Court can award general damages because general damages are such that the law will presume to be the direct or the probable consequences of the act complained of and may include pains and sufferings, citing Iyere v. B.F.F.M Ltd [2008] NWLR (Pt. 1119) 300 at 347. Or that this court can in addition to general damages award nominal damages. That it is beyond dispute that nominal damages can be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given. Counsel referred to McGregor on Damages, 7th Edition (Sweet and Maxwell), 2003 p. 360 para 10.004 – 10.005. Counsel then submitted that if the Court is of the view that the claimant has not proved the special damages, which is not conceded, the Court should award nominal damages in the circumstance. The claimant’s counsel finally urged the court to grant the claims of the claimant given that the claimant has proved his case. Counsel to the respondent filed his written address on behalf of the respondent. The said written address is dated 20th July 2012 but filed on the 24th July 2012. The respondent did not call oral evidence but in accordance with the practice of this Court relied on documents already filed before the Court. The respondent’s counsel raised the following issues for determination: (1) Whether the act of double employment is contrary to the respondent’s rule and the law. (2) Whether the claimant in view of his admission of engaging in double employment can still complain of breach of right to fair hearing. (3) Whether the disciplinary bodies of the respondent complied with its rules in dealing with the case of the claimant. (4) Whether the claimant discharged the burden or onus of proof so as to shift the burden of proof on the respondent. (5) Whether if the answer to Question 4 is in the affirmative the burden of proof shifts to the respondent and it discharged that burden. Before going into the issues he framed for determination, the respondent’s counsel responded to some of the issues argued by the claimant in his address. The respondent’s counsel referred to the claimant’s argument that the allegation of double employment is a crime and that the respondent violated the rules of natural justice in its hearing, as he was tried twice for the same offence even after he had been pardoned. That the dismissal was not in accordance with the respondent’s law and that the action is statute-barred and that the claimant is entitled to damages. To this, the respondent’s response is that the act of double employment is a civil act; it is not within the ambit of criminal law. The respondent’s counsel submitted that paragraph 21 of Chapter 1 of the Rules and Regulations governing its Senior Staff, which was embodied in the contract of employment between the claimant and the respondent by a letter dated 15/5/1998, requires its staff to be loyal and dutiful and forbids any work without authorization by any of its staff. That the claimant both in his pleadings and evidence admitted he did not obtain any authorization before working with the FCE Akoka. That it is clear that the claimant is in breach of this regulation, not a crime. That misconduct such as discipline by a University is within the internal rules of the University and the Court will not interfere as a University has the right to maintain discipline within its campus, citing Akinyemi v. Onwumechile [1985] NWLR (Pt. 1) 68, UniIlorin v. Adesina [2009] FWLR (Pt. 487) 56 and ESIAGA v. University of Calabar [2004] 7 NWLR (Pt. 872) 366. The respondent further submitted that the act of double employment is also condemned by the 5th Schedule to the 1999 Constitution. On the claimant’s claim for damages, the respondent’s response is that he is not so entitled as he was in clear breach of its law as conceded by the claimant; any staff dismissed is not entitled to any damages. Arguing issue one, counsel to the respondent submitted that it is the nature of the claim and the relief sought that determines the burden or onus of proof imposed on the claimant by law in order to succeed in its claim before the court. That a closer look at the reliefs sought by the claimant in this suit shows that they are declarations setting aside his dismissal and damages. Counsel submitted that the claims for declarations is discretionary in nature and are granted at the discretion of the court, not as a matter of course. That though this discretion must be exercised judicially and judiciously, the Court must be satisfied that a very strong and cogent case is made out on the pleadings and evidence placed before the court. Counsel cited Barclays Bank v. Ashiru [1978] 6 – 7 SC 99 at 130 – 131, Ibeneweka v. Egbuna & anor [1964] WLR 219 at 224, Odofin v. Ayoola [1984] 11 SC 25, Mogaji v. Odofin [1978] 4 SC 91 and Makanjuola v. Ajilore [2000] FWLR (Pt. 18) 1328 at 1332. Learned Counsel further submitted that a closer look at the claims or reliefs of the claimant show that the main crux of his case as deciphered from his reliefs and averments in his pleadings is that he was wrongfully dismissed for a crime and breach of fair hearing. To counsel this is not so, because from the respondent’s rules and regulation stated above, its staff are not, without its authorization, to engage in any work without authorization. At the time the claimant claimed to be in another employment, he was well aware of the respondent’s said rules. Furthermore that the claimant admitted this before the disciplinary bodies and in a letter written to him. Hence what is admitted need not be proved. That the claimant complained of breach of his right of fair hearing, citing Oseni v. Bajulu [2010] FWLR (Pt. 511) 813, Skye Bank v. Akinpelu [2010] FWLR (Pt. 526) 460 and Raji v. UniIlorin [2008] FWLR (Pt. 435) 1432. Finally on this issue, that the claimant is also within the contemplation of a public officer by virtue of the 1999 Constitution and is also in breach of the 5th schedule as regards double employment. Learned Counsel urged the Court to so hold and resolve this issue in favour of the respondent. On issue two, Counsel to the respondent submitted that in view of the clear admissions by the claimant as stated above, the burden has been discharged. That as stated above, the claimant who admitted the allegation against him cannot be heard to complain of breach of his right to fair hearing. To counsel, there is no breach of the claimant’s right of fair hearing by the respondent as he was given all opportunity to be heard. That the main claim of the claimant is wrongful dismissal which is what gives this Court jurisdiction. That this is also within the powers of the respondent exercised when the claimant was in clear breach of its rules and regulations and the Constitution. Counsel urged this Court to also resolve this issue against the claimant. On issue three, respondent’s counsel submitted that the respondent’s consideration of the allegation of double employment against the claimant by its disciplinary bodies particularly by the Senior Staff Disciplinary Committee which is a committee of Council and the Council acted within its powers particularly section 25 of the University Law. That the composition and the procedures were also in line with that law. Also that Panel ‘N’ is a fact finding body not obliged to comply with the fair hearing provisions, as well as the S.S.D.C. Also that the chairman of Panel ‘N’ from the proceedings of the S.S.D.C is not a member. That the S.S.D.C which invited and afforded the claimant opportunity to be heard only recommended the claimant’s dismissal, it did not take the decision, which was done by the Council which has the powers to do so. That the proceedings of the Council which was bound to adhere to fair hearing procedure was not exhibited to show whether the Vice-Chancellor or any member of the Senior Staff participated in the proceedings of the Council. To counsel, “the mere fact that the Vice-Chancellor by virtue of his position as stipulated under its law does not mean he took part in the proceedings”. Counsel also submitted that “fair hearing does not lie in the correctness of the decision handed down but acts of the tribunal by the procedure followed”. It means a trial or investigation conducted according to the rules formulated to ensure justice is done to all parties. Counsel referred the Court to Onyekwuleje v. Benue State Government [2005] FWLR (Pt. 280) 1615. That the claimant though made allegation of bias against the respondent, but failed to substantiate it; for an allegation of bias or partiality to be grounded it must be made on solid and unshaken ground and not mere sentiments. On issue four, counsel to the respondent submitted that the claimant in his own hand admitted that he never obtained authorization and admitted that he worked with the FCE (Technical) Akoka from 1999 to 2001. That he was tried by a committee and later pardoned but no evidence of any pardon was tendered. That the claimant was paid salary up till December 2008 which was the last period of his employment with the respondent before his dismissal, that he was invited and appeared before a meeting of Senior Staff, which composition or membership he never complained against but whose proceedings are before the Court and unchallenged by the claimant. From the above, that it is clear that the claimant was afforded an opportunity by the respondent to be heard. Counsel also submitted that the disciplinary bodies acted within its powers and not in breach of principles of fair hearing. Learned Counsel further submitted that “section 10 which the claimant placed copious reliance on, deals more with the functions of the Vice-Chancellor as to his general powers, and is subject to section 25 and the law which is specific on removal of Senior Staff, which reside the power in the Council which by virtue of section 6 is its highest organ”. Also that the Vice-Chancellor when exercising disciplinary powers cannot do so alone, even the Council must act through committees. Counsel urged this court to resolve this issue in favour of the respondent. On issue five, the respondent’s counsel submitted that even though the respondent did not call oral evidence, it relied on documents which are deemed read in support of its case. That a case can be proved by oral and documentary evidence with documentary evidence placed on higher pedestal than oral evidence due to its accuracy unlike oral evidence which can shift. That the fact that the respondent did not call oral evidence will not relieve the claimant from his obligation to prove, which he failed to discharge. To counsel, there are contradictions in the pleadings and evidence led before this court, which should be resolved against the claimant. The respondent’s counsel, therefore, submitted that in view of the admissions by the claimant that he was involved in double employment, the burden if any on the respondent has been discharged and urged the Court to so hold, and resolve this issue in favour of the respondent. In totality the respondent urged this Court to dismiss the claimant’s claim with substantial cost in favour of the respondent. In reply on points of law dated 6th August 2012 but filed on 7th August 2012, the claimant’s counsel responded that the claimant’s reliance on the respondent’s letter of 6th January 2009 was not to prove a case of defamation against the respondent but rather to show that the respondent’s governing council did not comply with rules of natural justice and fair hearing in relation to the claimant. With reference to argument as to the claimant’s admission of double employment, the claimant’s counsel submitted that before any investigating body or trial entity resolves that inconsistency it must comply with the rules of natural justice and fair hearing. The claimant also submitted that by reason of paragraphs 2 and 18 of the Fifth Schedule to the 1999 Constitution of Nigeria and the Schedule to the Code of Criminal Law Part 1, double employment is a criminal offence and it is only a court of law or Code of Conduct Tribunal that has jurisdiction to try any public officer for double employment, citing paragraphs 15(1), 18(1) and 18(6) of the 5th Schedule to the 1999 Constitution. The claimant finally urged this court to discountenance the respondent’s submissions and to grant the claimant’s claim. We have carefully reviewed the submissions of the parties in this case, the evidence adduced and the documents/exhibits relied on by the parties. In our view, the following issues arise for the determination of this court. These are: (1) Whether the allegation of double employment against the claimant is proved. (2) Whether the claimant was given fair-hearing before he was dismissed. (3) Whether the claimant was indeed pardoned. (4) Whether the dismissal of the claimant is statute-barred. (5) Whether the claimant is entitled to damages. The case of the claimant as already stated is that the he was dismissed from the service of the respondent because he was involved in double employment with the Federal College of Education (Technical), Akoka, Lagos. That this was done without the consent of the respondent especially when the claimant at that time was already in full time employment with the respondent which is contrary to the regulations and conditions of service guiding the senior staff of the respondent. The claimant on his part said he was involved in part-time employment and not full time. He also admitted that he did not get the approval of the respondent before he took up the appointment. The issue to be resolved by this Court is whether the claimant’s employment with the Federal College of Education (Technical) Akoka, was on part-time or full time. From the records before the Court, there is evidence that the claimant took up an appointment with the Federal College of Education (Technical) Akoka between 30th March 1999 and 10th January 2001. This fact was confirmed by a letter from the College to the respondent. We hereby reproduce the letter hereunder. Ref. No. FCE(T)/P.1532/1/60 26th November, 2002. The Dean, Faculty of Engineering, Lagos State University, Epe, Campus. Dear Sir, RE: MR. LAWRENCE OBORKHALE’S APPOINTMENT WITH FCE(T.) AKOKA With reference to your letter Ref. NO. LASU/FETES/10/041 of 14th November, 2002 on the above subject, I am directed to inform you as follows: That Mr. Lawrence Oborkhale was appointed as a Temporary Lecturer III on commencing salary scale of HATISS 08 per annum with effect from 30th March, 1999. That he was a Lecturer in the School of Technical Education, Department of Electricity/Electronics. That Mr. Oborkhale resigned his appointment with this College with effect from 10th January, 2001. Thank you. Yours faithfully Sgd. Deputy Registrar For Registrar. From the tenor of the letter reproduced above, it is clear that the employment which the claimant took with the Federal College of Education (Technical) Akoka was not a part-time employment. This was clearly an appointment on a specified salary level and position which is Lecturer III. The description of the appointment as temporary does not by any stretch of imagination approximate the appointment to one that is part-time. The term ‘temporary’ is often used to describe employments in contra-distinction with those that are confirmed or permanent and pensionable. In effect, temporary appointments such as the instant one in question approximate closely to probationary appointments the intention being that they will graduate to confirmed or permanent appointments. Similarly in a response to the Vice-Chancellor of the respondent via an Internal Memo dated 30th November 2005, the claimant indeed admitted to be involved in double employment in the following words – Allegation was made against selective persons in FCE department though Mr. Adegbuyi was aware that the issue of double employment was not something only Mr. Aro and I were involved but some other staff in the Mechanical and CPE departments. In concluding the memorandum to the Vice-Chancellor, the claimant also among other admissions in the said memo pleaded with the Vice-Chancellor thus: Honestly sir, I have forgotten about this case, more so that the former V.C. had settled the matter and I have been forgiven my offence. I still wish to plead with the present VC sir, to please forgive me. I pledge my unflinching loyalty to the University. The above statements show that the claimant voluntarily and in his own statement admitted to being involved in double employment and pleaded for forgiveness. In the said statements the claimant did not say he was involved in part-time employment. We are, therefore, of the view that the defence of part-time employment is an afterthought as it was never an issue. It never featured in any of the correspondences between the parties before now. Even in the report of the sub-committee of Senior Staff Disciplinary Committee Panel ‘N’, the claimant admitted his involvement but that the former Vice-Chancellor pardoned him. Equally instructive is the report of the EFCC which also investigated the case of double full-time employment against the claimant and one Mr. Andy Madubuko. In it the EFCC found after investigation that the claimant was indeed engaged in multiple public sector emoluments. We, therefore, agree with the submission of the respondent that the claimant was indeed involved in double public service employment. Such conduct is ignoble and in clear breach of the claimant’s terms of employment and amounts to a misconduct contrary Regulation 25(a)(1) of the regulations governing service of senior staff of the respondent. The conduct of the claimant is also contrary to the provisions of Regulation 21 of the said regulation governing service of senior staff of the respondent which provides as follows: (a) All employees of the University are required to devote their full time to the service of the University. (b) An employee shall not engage in any other gainful employment, business, trade or other professional practice, without the authority of the University. (c) An employee shall not engage in any other duties outside the University to the detriment of his responsibilities to the university. (d) Without prejudice to (b) above, an employee may seek the permission of the University to offer remunerative service within/without the University. Such service will be undertaken under the rules set out for consultancy services in the University and the remuneration of any service so undertaken will be set out in these rules. It is our view that the claimant has breached the above provisions regulating employment as he did not obtain permission of the respondent before engaging in a full-time employment with the F.C.E (Technical) Akoka. Furthermore, the conduct of the claimant has equally breached the code of conduct of public officers as contained in paragraph 2(a) of the 5th Schedule to the 1999 Constitution of the Federal Republic of Nigeria which prohibits double employment by any public officer. In all of these, we are convinced based on the evidence before us that the claimant was engaged in double public service employment while working with the respondent. We, therefore, believe the defence of the respondent and hold that the claimant was engaged in double employment. As to whether the claimant was given fair hearing, it may be necessary to reiterate the facts of the case. On the 5th of May, 2002 a group of students wrote to the then Vice-Chancellor reporting that the claimant was involved in double employment as a result he is not able to teach them well. As a result a panel was set up by the claimant’s faculty board to investigate the said allegation. The committee duly invited the claimant and others who were also alleged to be so involved to defend themselves. The faculty panel established a prima facie case against him. The matter was then referred to the Disciplinary Committee. On the 30th November, 2005 by an internal memo to the Vice-Chancellor, the claimant wrote admitting the allegation of double employment and begged for forgiveness. The matter was also referred to the EFCC for investigation and the claimant was also invited by the EFCC and he indeed went to the EFCC in respect of the matter. This the claimant admitted under cross examination. In 2007, after the EFCC submitted its report in which the Commission indicted the claimant for multiple public sector employment, a query was issued to the claimant dated 18th July 2007 to explain why disciplinary action should not be taken against him. The claimant replied the query on 31st July 2007. Thereafter a sub-committee, Panel ‘N’, was set up against the claimant on the said allegation. The claimant was invited and he indeed appeared. The Disciplinary Committee held four meetings after which it found that the claimant had a case to answer. The Chairman of the Senior Staff Disciplinary Committee then forwarded the report to the Governing Council. The Governing Council reviewed the report of the Disciplinary Committee and recommended that the claimant based on his admission for keeping double appointment, be dismissed from the service of the respondent. In his submission, the claimant’s counsel has made a heavy weather on the issue of fair hearing, that the claimant was not given fair hearing before he was dismissed. Nothing can be farther from the truth; fair hearing as we all know is opportunity to be heard and in this case the claimant was given such an opportunity and he was in fact heard; therefore, we are satisfied from the facts and evidence before us that the claimant was given fair hearing. In Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt.1262) 624 at 640, the Supreme Court held that where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answered the respondent’s queries before he was dismissed from his employment. That fair hearing simply means, “Hear the other side”. On claimant’s argument that the allegation of double employment is a criminal offence and so needs to be proved in court before dismissal, the Supreme Court held in the case of Imonikhe v. Unity Bank Plc (supra) that it was not necessary for the respondent to prove the allegation against the appellant before a court of law. That once the appellant answered the queries but the respondent did not find the answers satisfactory, the respondent can dismiss the employee. The Supreme also held that by the conditions of service of any organization properly so called, an employer ought to be able to discipline erring employees. Furthermore, by Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC, an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA. Therefore based on these authorities, the respondent has satisfied the principle of fair hearing and we so hold. Regulation 25(b) of the respondent’s regulations governing the service of Senior Staff provides as follows: (b) An appointment shall not be terminated until: (i) The employee has been notified in writing of the grounds on which consideration is being given to the termination of his appointment. (ii) The employee has had an opportunity of replying to the allegations if any, made against him/or making any representations in respect thereto; and the council or any board or committee to which the council may have delegated power to that effect, has such representation. (iii) The employee whose appointment is being considered for termination may, at his own request, be afforded the opportunity of appearing in person or by his chosen representative at a meeting of the Council at which the termination of his appointment is to be considered. As to whether the claimant was pardoned by the former Vice-Chancellor, the “Council Decision Extract on the Report of Senior Staff Disciplinary Committee on Mr. Oborkhale Lawrence Idemudia Lecturer II, Department of Electronic and Computer Engineering, faculty of Engineering” sent by the Deputy Registrar Academic Staff Establishment to the claimant through the Dean of Faculty of Engineering the claimant, dated 6th January 2009 communicating the approval of Council to dismiss the claimant from the services of the respondent, states inter alia as follows – Council while considering the report NOTED that: • The former Vice-Chancellor, Professor Abisogun Leigh acted ultra vires, in single handedly pardoning you, when a case of misconduct was leveled against you. • The system was lax, in promptly deciding the case, having allowed the case to drag on for seven (7) years, [2001 – 2008]. This piece of evidence coupled with the testimony of the claimant goes to show that there was actually a pardon given to the claimant by the Vice-Chancellor, although the argument of the respondent is that this was done ultra vires. There is no way the claimant could have known that a Vice-Chancellor who is the Chief Executive Officer of the University lacks the power to grant such a pardon. The evidence before this Court shows that between 2002 and 2005 when the issue of double employment was resuscitated, the claimant was allowed to continue in his work despite the initial complaint of double employment; and he continually collected his salary for that period and was even promoted. All of this amounts to, if not a pardon, to a condonation of the wrong said to have been committed by the claimant. At worst, the respondent agreed that they were lax and so slept over the right to discipline the claimant. It must be noted that Regulation 21 of the respondent’s regulations governing the service of Senior Staff is not even absolute in banning dual employment. It permits dual employment if consent is sought. And in not being absolute, Regulation 21 must be read as subject to the overriding rule that if an employer is aware of the dual employment but allows the employee to continue in it without any reprimand, the employer must be taken to have condoned it, more so if this relates to an academic staff of an educational institution. The case of Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA held that if after the knowledge of fraud committed by an employee the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which he has waived or condoned. See also ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA and Nigerian Army v. Brig. Gen. Maude Aminu Kano [2010] 1 MJSC (Pt. I) 151. As to whether the action of the respondent in dismissing the claimant is statute-barred. It is our view that the claimant’s counsel misunderstands the meaning and application of limitation of action rule. The limitation of action rule applies to bar only court actions outside of the permitted time, not any other action. We do not, therefore, think that an employer is barred by the limitation of action rule from taking steps to discipline an erring employee for misconduct as the claimant would want this Court to believe. We, therefore, hold that statute of limitation as argued by the claimant’s counsel is inapplicable in this instance and is also discountenanced. On the whole despite the fact that the claimant actually was involved in dual employment, we find and hold that the respondent in being lax in disciplining him condoned the said dual employment and so lacked the right to dismiss him afterwards given the authorities of Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA and Nigerian Army v. Brig. Gen. Maude Aminu Kano [2010] 1 MJSC (Pt. I) 151. For the reasons given above, we hereby find for the claimant and declare and order as follows: (1) The respondent’s dismissal of the claimant from its employment was wrongful and, therefore, null and void. (2) The said dismissal of the claimant from the service of the respondent is hereby set aside. (3) The claimant is hereby awarded the sum of Two Hundred and Fifty Thousand Naira (N250,000) as general damages. (4) Cost is put at Fifty Thousand Naira (N50,000) only payable by the respondent to the claimant. (5) The sums ordered in (3) and (4) above are to be paid by the respondent to the claimant within 30 days of this judgment. Judgment is entered accordingly. …………………………… Hon. Justice B. B. Kanyip Presiding Judge ……………………………………… ..…...……………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge