3PLR – BAMGBOYE V. UNIVERSITY OF ILORIN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BAMGBOYE

V.

UNIVERSITY OF ILORIN

COURT OF APPEAL

(KADUNA DIVISION)

TUESDAY, 14TH MAY, 1991

SUIT NO. CA/K/203/90

3PLR/1991/623 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

SANI SALITH AIKAWA, J.C.A. (Presided)

JOSEPH DIEKOLA OGUNDERE. J.C.A. (Read the Leading Judgment)

MURITALA AREMU OKUNOLA, J.C.A.

 

BETWEEN

  1. TUNDE BAMGBOYE

 

AND

  1. UNIVERSITY OF ILORIN
  2. REGISTRAR, UNIVERSITY OF ILORIN

 

REPRESENTATION

Professor M. I. Jegede (with him, Ibukun Ojomo) – for the Appellant

Chief J.O.A Shittu (with him, B.A. Adebayo and G.D.Ayanbanji) – for the Respondents

 

MAIN ISSUES

ADMINISTRATIVE LAW – Delegated power – Whether can be delegated to another person

ADMINISTRATIVE LAW-Delegation of power – Disciplinary functions-Whether delegatee.

ADMINISTRATIVE LAW – Delegation of power – Effect thereof.

ADMINISTRATIVE LAW -Delegation of power-Right of delegating authority to control, resume or revoke the power.

ADMINISTRATIVE LAW -Delegation of power- Trial of lecturer by Disciplinary Committee of University – University Council re-trying lecturer – Whether Council estopped

ADMINISTRATIVE LAW – Ministerial duties – Performance by departmental officials – Whether delegated function.

ADMINISTRATIVE LAW – Statutory bodies – Disciplinary proceedings against staff – Whether strict court procedure must be adopted

ADMINISTRATIVE LAW – Statutory duties conferred on a person – Power to appoint agents to do same – Exceptions thereto.

COMMERCIAL LAW – AGENCY – “Agent’ and “delegatee’ – Meanings and relationship between.

COMMERCIAL LAW – AGENCY – Company Director – Whether agent of company.

COMMERCIAL LAW – AGENCY – Competence to do an act – Power to do same through an agent – Exceptions thereto.

COMMERCIAL LAW – AGENCY – Creation of agency – Different modes thereof.

COMMERCIAL LAW – AGENCY – Performance of principal’s duties by agent – Power of principal to control agent.

COMMERCIAL LAW – AGENCY – Servant or independent contractor – When an agent of the principal.

COMMERCIAL LAW – AGENCY – When it arises

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – Grounds based on obiter dictum of lower court – Whether competent.

PRACTICE AND PROCEDURE – APPEAL – Issues for determination – Absence of any ground of appeal in support thereof – Effect

COMMERCIAL LAW – CONTRACT – Agency – Modes of creation thereof.

PRACTICE AND PROCEDURE – EVIDENCE – Proof – Allegation of unlawful dismissal by University – Onus of proof – On whom lies.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Pronouncements on facts not pleaded – Whether capable of upturning judgment

CONSTITUTIONAL LAW – JUDICIAL PRECEDENT – ‘Ratio decidendi’ and ‘obiter dictum’ – Meanings and distinction between .

NATURAL JUSTICE -Disciplinary proceedings conducted by University Council – Previous trial conducted by University Committee – One member of Committee also sitting as member of Council – Proceedings based mainly on documentary evidence -Lecturer absolved by committee but found liable by Council-Dismissal of lecturer-Whether rules of natural justice violated.

NATURAL JUSTICE – Disciplinary proceedings of University Council – Duty to observe rules of natural justice.

PRACTICE AND PROCEDURE – Pleadings – Bindingness of.

PRACTICE AND PROCEDURE – Pleadings – Material facts to be pleaded – Whether include evidence in proof thereof.

PRACTICE AND PROCEDURE – Pleadings – Supercession of writ by statement of claim

UNIVERSITY – Disciplinary proceedings against staff – Whether strict court procedure must be observed – Failure to allow Lecturer to cross-examine witness – Whether fatal.

UNIVERSITY – Registrar – Whether agent of University in disciplinary matters – University of Ilorin Act 1979 considered.

UNIVERSITY – University Committee – Power to establish same – Whether University Council estopped from pet forming statutory functions delegated to committees

WORDS AND PHRASES – “Agent” and “delegatee’ -Meanings and relationship between.

WORDS AND PHRASES – “Bias” Meaning and determination of.

WORDS AND PHRASES – “Delegate” as in delegation of power – Thereof

WORDS AND PHRASES – “Ratio decidendi” and `obiter dictum’- Meanings and distinction between .

 

MAIN JUDGMENT

OGUNDERE, J.C.A. (Delivering the Leading Judgment): Before his Lordship T. A. Oyeyipo, C.J. at the Kwara State High Court of Justice, Ilorin, the plaintiff, now appellant sought the following remedies:

“CLAIM. The plaintiff’s claim against the defendants jointly and sev­erally are as follows:­

(1)     Declaration that the letter dated 17th August, 1988 written by the 2nd defendant to the plaintiff revoking the plaintiff’s suspension and restoring his full emoluments in accordance with section 15(4)(b) of the University of Ilorin Act, 1979 has absolved the plaintiff of all blame in respect of charges of alleged examination malpractices.

(2)     Declaration that the letter of 2nd defendant dated 18th November, 1988 inviting the plaintiff to appear before Governing council of the 1st defendant is ultra vires thereby it is null and void.

(3)     Declaration that the deliberations of the Governing Council of the 1st defendant on 21st November, 1988 are ultra vires the said 1st defendant Governing Council thereby are null and void.

(4)     Declaration that the consequent letter of the 2nd defendant dated 22nd November, 1988 dismissing the plaintiff is ultra vires thereby it is null, void and of no effect

IN THE ALTERNATIVE

(5)     Declaration that the deliberations of the Governing Council of the 1st defendant on 21st November, 1988 are null and void on the ground that the Rules of Natural Justice were not complied with.

(6)     An order reinstating the plaintiff to his former position as Reader in the Department of Chemistry in the 1st defendant’s Establishment without prejudice to the payment of his salary and other emoluments.

(7)     An order restraining the defendants from further interfering with the plaintiff’s lawful execution of his duties as a Reader in the Department of Chem­istry in the 1st defendant’s Establishment.”

This action arose out of the disciplinary proceedings against the plaintiff which culminated in his dismissal from the services of Ilorin University as conveyed to him in a letter dated 22nd November, 1988 (Exhibit p.7) under the hand of the second defendant.

Pleadings were ordered and delivered. The learned Chief Judge, after taking the evidence of the parties, in a considered judgment found for the defendants.

The facts of the case, which were not controverted in essential particulars was that the plaintiff, Dr. Tunde Bamigboye was a Reader in chemistry in the Faculty of Science presided over by Professor Yoloye as Dean. The plaintiff and his Dean would appear to be friendly. The Plaintiff then went away on a year sabbatical, spending six month in a University in Ondo State, and six months in England. Before the plaintiff’s return, a new Dean of the Faculty of Science, Professor Mesubi, was appointed. Mesubi was looking for the Chemistry ex­amination scripts of two women and was obliged to break open the door of the office of the plaintiff. There they discovered two chemistry examination scripts of one Miss Maduneme one written under examination conditions, another well written at leisure. Several markings from low to high marks appeared on the first script and high marks on the second script. The script of one Miss Kuye was also discovered with alteration of examination marks from low to high ones. It turned out that a relationship closer than that of professor and student existed between the plaintiff and Miss Maduneme, and between Dean Yoloye and Miss Kuye to the extent that Miss Kuye had in her custody a key to the plaintiff’s office. On one occasion, she was bleeding into her underwear, and she rushed to the plaintiff and she told the plaintiff that the pregnancy was Dean Yoloye’s whereupon she was rushed to the hospital.

Arising from the discovery of the said examination scripts, malpractice charge were laid against the plaintiff. The Dean setup a Preliminary Departmental Investigation Panel, of which Professor Mesubi was Chairman. The students’ involved in the malpractices were invited and were present, as well as staff members. The Panel found that a student and the plaintiff had a case to answer, and submitted its Report Exhibit DI to the Dean. The Dean thereupon set up a Faculty Investigating Panel headed by Professor D.K Bamigboye, with him were Dr. O.A. Adegboye, Or. S.O. Akande and J.A. Agboola as members and secretary re­spectively. Exhibit D2 was the report of that committee. When that report was submitted, it was found that one aspect required further investigation, and as Professor D.K. Bamigboye was on sabbatical leave, Professor Oyewole as Chairman of another panel, was asked to look into the issue and he submitted a report, Exhibit 3. The plaintiff appeared and made representations before the three panels that produced the three report Exhibits 1, 2, and 3. The panels exonerated the plaintiff on two charges, found him blame worthy on the third and warned and discharged him. The Investigating Panels did not however have the benefit of seeing examination scripts Nos 81/2731 and 84/7595 of two candidates.

On receipt of Exhibit D3, the second defendant on 22.6.88 wrote the plaintiff, Exhibit PI, inviting him to appear before the Senior Staff Disciplinary and Appeals committee, S.S. D&A. C., chaired by the Vice-Chancellor Professor Adeoye Adeniyi to defend himself against charges of examination malpractices set out therein. Another letter of even date under the hand of the 2nd defendant, Exhibit P2, suspended the plaintiff from duty pending the disposal of the charges against him. The plaintiff’s request to be accompanied by a lawyer on appearing before the S.S.D&A.C. was turned down. The plaintiff appeared before the S.S.D&A.C. and defended himself ably, as the second defendant wrote Exhibit P3 revoking the Order in Exhibit P2.

On 18.11.88, the plaintiff was by a letter of even date invited to appear before the Council to defend himself over the charges. The plaintiff appeared before the Council at its 33rd meeting on 21st November, 1988. The Council comprised Professor Yesufu Pro-Chancellor and Chairman of Council, Professor Adeoye Adeniyi, vice-Chancellor and Chief Executive, the Registrar 2nd defendant, Mrs. Daudu Federal Ministry of Education, and the Senate Representative Professor D.K Bamigboye. The plaintiff made representations to the Council and submitted a document on the floor of the Council with many attachments. The plaintiff claimed ignorance of the examination scripts Nos 81/2731 and 84/7595 with respect to two candidates. Council thereupon took a short adjournment and ordered the Dean, Faculty of Science, to make the scripts available to him and that was done. On council resuming its seat later that day the two scripts Exhibits D5 and D6 were given to the plaintiff, and after going through them he defended himself on them as well as other charges. Exhibit D4 is the minutes of the Council at its 33rd meeting. Professor Mesubi was not a member of the S.S.D&A.C. at the time, he attended the Council meeting aforesaid as Dean Faculty of Science. In between the meeting of S.S.D&A.C. and the Council meeting, the 2nd defendant received plaintiffs letter asking for transfer to Ondo State University and the 2nd defendant directed him to route it through the Dean of his Faculty.

He was subsequently dismissed from the services of the University per Exhibit p7, whereupon he brought this action. At the trial, the learned trial Chief Judge agreed with the formulation of the issues by professor Jegede learned counsel for the plaintiff as follows:

(i)      Whether the power to remove or reinstate a Senior Staff facing allegation of misconduct was delegated to and exercised by SSD and AC and if so whether the University of Ilorin of for that reason disentitled from re-opening this matter after the SSD and AC had absolved the plaintiff.

(ii)     Whether the University of Ilorin could rightly dismiss the plaintiff without a fresh hearing having regard to the delegated power already exercised in the matter by SSD and AC.

(iii)    Whether the 1st defendant is bound by the act of its agent, that is, the Registrar (2nd defendant) acting within the scope of his ostensible authority.

(iv)    Whether Exhibit ‘p7’ is ultra vires the provisions of the Act.

(v)     Whether the plaintiff was given a fair hearing by the Governing Council of the 1st defendant.

(vi)    Whether the Governing Council of the 1st defendant has jurisdiction to try criminal misconduct.

As to issue 1 on the delegation of council’s power to S.S.D&A.C that is, Senior Staff Discipline and Appeals Committee, the learned Chief Judge found that by a letter of 22nd June, 1988, the plaintiff was suspended pending the disposal of the charges against him. Later, the S.S.D&A.C. absolved the plaintiff/appellant on two of the 3 charges against him, and his suspension was revoked and his full emoluments were restored with effect from 23rd June, 1988. ‘The S.S.D&A.C. was implicitly set out pursuant to section 22(1) and in exercise of Council’s powers under section 15 of the University of Ilorin Act. The learned Chief Judge then opined that the S.S.D&A.C. as a committee of the Council cannot claim to be at par with the Governing council and as such its decisions cannot tie the hands of the Council. ‘

By virtue of section 15 of the Act, the Contract of Service of Academic and Professional Staff has statutory flavour which cannot be terminated except by procedures laid down in the statute. Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. FPSC (1981) 1 S.C. 40, 56. The learned trial Chief Judge could find no evidence of the delegation of the powers of Council to the S.S.D&A.C. as argued by Professor Jegede learned counsel for the plaintiff and that the decision of that committee contained in Exhibit P3 did not prevent or fetter the competence of the Council to re-open the matter as it did. He then concluded that the 1st defendant, that is, the University has not breached any provisions of the Act by re-opening the matter. (See Record p.84-86).

As to the second issue, the competence of the University to dismiss the plaintiff without hearing fresh evidence, the learned trial Chief Judge found that the plaintiff had an opportunity to defend himself as the evidence of second defendant and DW 1 show in the light of Exhibit D4. Exhibit D4 showed that the Council re­examined the matter in relation to the charge the Committee found the plaintiff blameable in that he gave a student the Key of his office where examination materials are usually kept. The Council had to call Professor Mesubi, the Dean of Science to explain the plaintiff’s complaint that his office door was broken and his office ransacked. Professor Mesubi explained that he was not the Dean at the relevant time. The then Dean professor Yoloye in his hand over notes to him stated that they had to gain entry into Professor Bamgboye’s office in order to retrieve some question papers and found two sets of answer papers belonging to Miss Maduneme, one obviously done under examination condition and the other in a mere leisurely and relaxed condition.

The plaintiff was invited to Council on three charges: first, misconduct in respect of Miss Maduneme’s two answer scripts, secondly for altering Miss Kuye’s marks in chemistry from 18 to 28 to 49%, thirdly, for giving Miss Kuye the key of his office and thereby exposing her to examination materials in violation of University rules and regulations. The plaintiff gave no satisfactory explanation. The Council then found that Dr. Bamigboye assisted Miss Maduneme to write the second script and falsely award her 45 out of 50 marks. It also found that Professor Yoloye had a case to answer on Miss Kaye’s aborted pregnancy whose marks were also altered. The Council then ordered the summary dismissal of the plaintiff (Record p. 89-94).

As to issue 3, the learned trial judge found that it was within the legal competence of council to overrule Exhibit P3, as it is not the duty of the governing council to rubber stamp a decision taken by a subordinate Committee or staff.

As to issue 4, whether Exhibit P7 was ultra vires the provisions of Section 15(4)(1) of the Act, the learned trial Chief Judge found that the plaintiff was suspended by Exhibit P2 on 23rd June 1988 and dismissed per Exhibit 7 on 21st November, 1988 within a period of five months. The plaintiff, by Exhibit P5, Council’s letter of 22nd September, 1988 was warned that the report of S.S.D&A.C. which looked into serious allegations of examination malpractices in the Chem­istry Department was laid before it and that the 3 months prescribed period commenced on 22nd September, 1988 and in compliance with the Act.

As to the 5th issue whether the Plaintiff had a fair hearing as regards the role of Professor D.K: Bamigboye and Mesubi at the council meeting of 21.11.88, the learned trial chief Judge found that Exhibit D4 was a good account of what transpired before council on 21.11.88, and that Professor Mesubi was called in as a Dean of Science and not as a member of council. As to the Vice-Chancellor who was Chairman of S.S.D&A.C. that partially absolved the plaintiff, he could not see any prejudice to the plaintiff and none was established. In Garba’s case, the Deputy Vice-Chancellor was a victim of students’ rampage as his house was burnt down. Neither the Vice-Chancellor Professor Bamigboye, nor Professor Mesubi had any axe to grind against the plaintiff and Exhibits Dl, D2, D3 contain no evidence of hostility to the plaintiff. The learned trial chief Judge then rejected the suggestion that any rule of fair hearing was thereby breached.

As to issue 6, whether the council had jurisdiction to try a criminal misconduct, which amounted to offences of cheating and forgery punishable under the Penal Code, the learned trial Chief Judge found that the evidence revealed sordid dealings of extreme moral turpitude against the plaintiff which amounted to examination malpractices, being misconduct amenable to the domestic jurisdic­tion of the University and its Governing council Akintemi v. Professor Onwumechili (1985) 1 NWLR (Pt. 1) 68 at 81. They are not justiceable in a court of law.

Dissatisfied with that judgment, the plaintiff appealed on ten grounds. In this court, the parties filed and exchanged their briefs of arguments. In the appellant’s brief the following issues were raised for determination:

“1.     Whether the guilt or otherwise of the appellant on charges of examination malpractice was an issue in the suit .

  1. Whether the power to reinstate and or remove senior staff facing allegations of misconduct was delegated to the Senior Staff Dis­ciplinary and Appeals Committee and whether the onus of proving otherwise lay on the respondents.
  2. Whether the 1st respondent was bound by Exh. P3 being the act of its agent within the scope of his ostensible authority.
  3. Whether Exhibit 7 is ultra vires the provisions of the University of Ilorin Act 1979.
  4. Whether the trial court properly evaluated what transpired at the proceedings of the Governing Council on the 21st of November, 1988.
  5. Whether the appellant was given a fair hearing by the Governing Council of the University of Ilorin.
  6. Whether assuming, but without conceding that the Senior Staff Disciplinary Appeals committee had the power to recommend the appellant’s reinstatement and/or removal, having decided on the former, could the 1st respondent dismiss him without a fresh re­hearing.
  7. Whether the Governing Council of the University of Ilorin has jurisdiction to try criminal misconduct.

At the hearing of this appeal, chief J.O. Shittu, with him Messrs B.A. Adebayo and C.D. Ayanbanji for the respondents, raised preliminary objections,. a notice of which was filed in court and served on the appellant. It reads as follows: “TAKE NOTICE that the respondents named intend at the hearing of the Appeal to rely upon the following preliminary objection notice whereof is hereby given to you viz:­

  1. To strike out all the 10 grounds of appeal filed with the Notice of Appeal and consequently to strike out the Appeal itself.

AND TAKE NOTICE that the grounds of the said objection are as follows:­

(a)     The appellant failed to offer any arguments in respect of all the 10 Grounds of Appeal and as such the grounds of appeal are all deemed as having been abandoned.

(b)     Failure of appellant to offer arguments on the 10 Grounds of Appeal makes the grounds of appeal defective and improper and this in turn makes the Notice of Appeal defective and improper.

(c)     The defective Notice of Appeal makes the Appeal itself incompetent.

  1. To strike out the following issues:-numbered 1, 2, 3, 4, 5, 6, 7 and 8 contained at page 4 and 5 of Appellant’s brief. AND TAKE NOTICE that the grounds of the said objections are as follows:­

(a)     Issues No:- 1, 2, 3, 4, 5, 7 and 8 are new issues first raised in this Court of Appeal for the first time.

(b)     They are not raised in the parties pleadings, they were not raised in the court below, and are not covered by the 10 Grounds of Appeal

(c)     No leave to raise new issues has been asked for and none has been granted by this Honourable Court. (d) No leave to argue additional grounds of appeal has been requested and granted.

  1. To strike out the following particulars of fair hearing stated under issue No.6 at pages 21 to 22 of the Appellant’s brief as follows:­

(i)      Paragraph 10.4(1), (a)(b)(c)(d) and (e) at page 21 of the Appellant’s Brief,

(ii)     Paragraph (2) and 10.5 (a)(b)(c)(d)(e), 10.6, 10.7 (i) (ii) at page 22 of the Appellant’s Brief and (iii) Paragraph 10.8, 10.9, and 10.10 at page 23 of Ap­pellant’s Brief.

AND TAKE NOTICE, that the grounds of the said objections are as follows:­

(a)     All the above mentioned particulars of fair hearing particularised at pages 20-23 were not pleaded in the Appellant’s pleadings (Statement of Claim) in the court below at pages 5 to 15 of the Record of Appeal.”

Chief J.O. Shittu learned counsel for the respondent argued the points in the Notice of Preliminary Objections and Professor Jegede learned counsel for the appellant who had filed a Reply thereto also made submissions on them.

In the end, Chief Shittu learned counsel for the respondent submitted that there are 10 grounds of appeal and 8 issues and conceded the right of the appellant to argue the issues having regard to Momodu & Ors v. His Highness Alhaji A.C. Momoh (1991)1 N WLR (Pt. 169) 608 at 609. He then submitted that aspects of fair hearing not pleaded should be struck out: Pages 21-23 Appellant’s brief. He then urged the court to strike out issues not directly raised in the pleadings or covered by the grounds of appeal.

I have carefully considered the Preliminary Objections, and the reply thereto in the Appellant Reply Brief. As to Issue one, it seems to me clear that the question of examination malpractices was in fact raised in the pleadings. Para­graph 8 of the statement of claim referred to a three member Departmental Panel which investigated some irregularities in the February, 1989 examination, and paragraph 9 says the plaintiff was invited to appear before that panel which comprised as per para. 11 statement of claim Professor Adeniran Mesubi as Chairman, and Dr. S.A. Adediran and Dr. G.A. Olatunji as member. Paras. 12 and 14 of the statement of claim specifically stated that a Faculty Panel was set up to further investigate “alleged examination malpractices” comprising Professor D. K. Bamigboye as Chairman, Drs O.S. Adegboye, and S.O. Akande as members and J.A. Agboola as secretary: All these were admitted in para. 1 of the statement of defence. So also was para 18 of the statement of claim averring that the plaintiff was asked to defend himself against specific charges of examination malpractices. Paragraph 20 of the statement of claim avers that the plaintiff ably defended himself before Senior Staff Disciplinary and Appeals committee comprising:

The Vice-Chancellor – Prof. Adeniyi Chairman

Prof. Abiri – University Council Member

Prof. Oyebanji – University Council Member

Alhaji Bukar – University Council Member

Alhaji Biko – University Council Member

The Deputy Vice-Chancellor – University Council Member

The University Legal Officer –

The Second Defendant – Registrar and Sec. to Council Paragraphs 22, 24, 25, 27 and 29 of the statement of claim also referred to examination malpractices. There is no doubt therefore that examination malpractices and the part played therein by the plaintiff were the real issues at the lower court and that the learned trial judge was under a duty to pronounce one way or the other thereon. As to issues 2, Grounds 2 and 3, paragraphs 27 and 29 of the statement of claim raised the question whether his exoneration by the S.S.D&A.C. could validly be overruled by the council. Those paragraphs are denied by paragraph 2 of the statement of defence and paragraph 20 of the statement in reply to paragraph 29 of the statement of claim affirmed the competence of the Disciplinary powers of the Council. An issue was thereby joined. I however agree with Chief Shittu that the onus is not on the defendants to prove that they acted correctly. The burden both legal and evidential lie on the plaintiff to prove that the Governing Council -was in error in order to succeed. Section 134, 136,138 Evidence Act. Abiodun v. Adehin (1962) 1 All NLR 550, (1962) 2 SCNLR 305 Kate Enterprises Ltd v. Daewoo Nig Ltd. (1985) 2 NWLR (Pt.5) 116 at 127, Okparaeke v. Egbuonu (1941) 7 W ACA 53; Uredi v. Dada (1988) 1 NWLR (Pt.69) 237.

As to issue 6 whether fair hearing was pleaded, the starting point is the writ of summons which in essence was a declaratory action. In paragraphs 1-4 he sought two main declarations, that he was absolved of charges of examination malprac­tices and that the deliberations of council leading to his dismissal were null and void. Paragraphs 5-7 sought alternative declarations that the deliberations of Council were null and void for violations of the rules of natural justice with consequential orders that he the plaintiff be reinstated into his former post of Reader in Chemistry. It is however trite law that a statement of claim supercedes the writ of summons in so far as the statement of claim is different from the writ. Udechukwu v.Okwuka (1956) l FSC 70,71 (1956) SCNLR 189, (1956) SCNLR 189. Where, however the statement of claim ends with the plaintiff claims as per his writ of Summons the general rule that the statement of claim supercedes the writ of summon does not apply. keshinro v. Bakare & Ors (1967) 1 All NLR 280 at 284. In this case paragraphs 27 and 28 of the statement of claim raised the issue of fair hearing before the council which were denied in paragraph 2 of the statement of defence; the parties thus joined issue on that score. Also all the declaratory remedies in the writ of summons were repeated in the statement of claim, including declaration 5 that the deliberations of Governing Council were void for non­compliance with the rules of natural justice. The defendant in paragraph 21 of the statement of defence denied that the plaintiff was entitled to any of the reliefs sought and prayed the court to dismiss the suit as frivolous, vexatious and an abuse of the process of court. Thus fair hearing before the Council was clearly in issue.

Chief Shittu conceded that all the issues except fair hearing are those not pleaded. I have already held that fair hearing issue 6 was raised in the pleadings and grounds of appeal. I agree with chief Shittu that issue 8 whether the council had criminal jurisdiction was never pleaded nor made a ground of appeal. Issue 8 is accordingly struck out. In the result; the preliminary objections of the respondent, save on issues 8 is dismissed seriatim and in toto.

Now, let us consider the main appeal. Professor Jegede learned counsel for the appellant having adopted the appellant’s brief of arguments adumberated each issue therein extensively, if not exhaustively.

It was submitted in the appellant’s brief that there was no pleading on issue 1. As a committee of the Governing Council had absolved the appellant of blame on examination malpractices, the Governing Council had no power to re-try him on those charges again. The decision of Council was therefore ultra vires the provisions of the University of Ilorin Act 1979. The comments of the learned trial Chief Judge at pages 103, 104 of the record on malpractices were criticised as giving the impression that the appellant was guilty of examination malpractices which have affected the court’s decision and must be set aside.

On issue 2, it was submitted that section 15 of the Act gave the Council the power to discipline senior staff including dismissal, which power could be delegated under section 21 of the Act. The Council delegated that power to the Senior Staff Disciplinary and Appeal Committee which after investigation decided to reinstate the appellant per Exhibit P3, which decision, it was submitted, is binding on the Governing Council. Section 148(d) Evidence Act is cited in support of presumption of the delegation aforesaid. The onus is on the respondent to produce the terms of reference of S.S.D&A.C. Which is within the knowledge of the Council and which it failed to do contrary to section 141 of the Evidence Act. Lever Finance v. West Minister L.B.C. (1971) 1 Q.B. 222, 231. See Wade, Ad­ministrative Law, 5th Ed. P. 326; Western Fish Products v. Pen with D.C. (1981) 2 All E.R. 204, 219.

On issue 3, it was submitted that the S.S.D&A.C. is an agent of the Governing Council which is bound by the acts of the former within the scope of its authority. Bowstead on Agency, 14th Ed. Art 22. Freeman Lockyer v. Buckhurst Park Properties Ltd., (1964)2 Q.B 480, 503. Supreme court of Canada in Verrault & Fils Ltd v. A.G of Onebec (1976) 57 DLR (3rd) 403, 407. The more so as the communication of the Registrar to the appellant is a representation by the council. The Act, Schedule 1 section 5(1) & (2).

As to issue 4, an alternative to issues 2, 3, 7 on the question whether Exhibit P7 is ultra Vices the Provisions of the Act, it was submitted that statutory powers have statutory limits and that any act outside those limits is ultra Vires and is a nullity Olaniyan v. University of Lagos. (1985) 2 NWLR (Pt.9) 609, 626. It was then submitted that section 15(4) of the Act enjoins the University Council to consider the case of a person on suspension and on half pay within 3 months thereof. As the appellant was placed on suspension with half pay on 23.6.88 vide Exhibit P2, and as the Council by Exhibit P5 of 22.9.88 informed the appellant that the Council at its 32rd meeting held on 3.9.88 received the S.S.D&A.C report on which it will take a decision soon, the decision of council of 21.11.88 to dismiss the appellant communicated to him by Exhibit P7 dated 22.11.88 was invalid being 5 months after the date of appellant’s suspension.

As to issue 5 – the court’s evaluation of the proceedings of the council on 21.11.88, it was submitted that the presence of Prof. Mesubi, Chairman Depart­ment at Panel, Prof. Bamigboye, chairman Faculty Panel, who were hostile to the appellant at the said council meeting, the minutes of which is Exhibit D4 the Council decision was tainted with bias such that its decision was a nullity. The evaluation of the relevant evidence by the lower court in that regard was faulty. Akibu v. Opaleye (1974) 11 S.C. 189, 203.

On issue 6, an alternative to issue 2, 3, 7 on fair hearing, which is a statutory and constitutionalrequirement,asevidencewastakenincouncilfromprof.Mesubi . and Prof. Bamigboye behind the appellants back, the proceedings were a nullity, Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at 584, Laoye v. Fed. Civil Service Conunission (1989) 2 N W LR (Pt.106) 652; Fawehinmi v. L.P.D.C (1985) 2 NWLR (Pt.7) 300,333-337.

On issue 7, it was submitted that council was bound by the decision of S.S.D&A.C. unless it had before it fresh evidence. Olatunbosun v. NISER (1988) 3 NWLR (Pt.80) 25 at 52.

On issue 8, an alternative to issues 2, 3, 7 it was submitted that only a Court of Law could hear and determine criminal cases, that is cheating and forgery and as the Governing Council lacked competence in that regard, its proceedings were a nullity. Section 33(4) 1979 Constitution Garba’s case, Laoye’s case. I have already struck out this issue, and nothing more need be said on it.

Prof. Jegede however conceded that if the court’s decision on issue I or any other issue occasioned a miscarriage of justice, the proper order of this court would be a retrial. He urged the court to allow the appeal.

Chief Shittu learned counsel for the respondent, both in his brief and viva voce at the hearing of this appeal made the submissions herein which’ are now to be read subject to my ruling disallowing his preliminary objection on the question whether the guilt or otherwise of the appellant on charges of examination malpractices was in issue in the suit he submitted that no issue of criminal guilt arose having regard to paragraph 29 of the statement of claim and paragraph 20 of the statement of defence, the appellant was only found guilty of examination malpractices and disciplined in accordance with the provisions of section 15 of the University of florin Act No. 81 of 1979. No issue of criminality arose from the pleadings nor from the judgment of the learned trial Chief Judge. It is a new issue now being introduced by the appellant and it must be discountenanced since parties‘ are bound by their pleading; Kasikwu v. A.G. Bendel State (1986) 1 NWLR (Pt.19) 695 at 710. George v. Dominion Flour Mills (1963) 1 All N.L.R.71 and 77, (1963) 1 SCNLR 117. I am in perfect agreement with this submission and I have struck out the issue.

As to the second issue whether the power to reinstate or remove senior staff facing allegation of misconduct was delegated to the Senior Staff Disciplinary and Appeals committee and whether the onus of proving otherwise lay on the respondent, it was submitted that the issue did not arise from the pleadings settled by the parties. There is no averment in the statement of claim that the power to reinstate or remove senior staff facing allegation of misconduct was delegated to the Senior Staff Disciplinary and Appeal Committee and no issue was joined in the statement of defence in that regard. Although the appellant’s counsel canvassed this point during the trial in his address that does not improve the position that that question was not an issue during the trial. In so far as the learned trial Chief Judge considered that issue in his judgment they should be deemed as obits dicta; and as it did not occasion any miscarriage of justice, the appeal cannot be allowed on that ground nor can the judgment of the lower court be set aside. Onojebi v. Olanipekun (1985) 4 S.C. (Pt.2) 156,162-163; Ukejianya v. Uchendu (1950) 13 WACA 45 at 46. Further that issue was not covered by any of the grounds of appeal. And no leave was granted to argue an additional ground of appeal. In the consideration of an appeal, an issue not raised in the grounds of appeal cannot be entertained except leave in that regard was sought and obtained. Inua v. Nta (1961) All NLR 576. Ejowhomu v. Edok Enterprises Ltd. (1986) 5 NWLR (Pt.39) l; where it was held that the purpose of grounds of appeal is to give notice of errors of law or facts to the respondents. Any issue not raised in the grounds is not properly before the court. In the same tenure was the decision of the Supreme court in Western Steel Work v. Iron and Steel Workers (1987)1 NWLR (Pt.49) 284 at 304. Therefore if a point or issue was raised in the brief which was not raised in any of the grounds of appeal it will be treated as incompetent. In Anukwua v. Ohie (1986) 5 NWLR (Pt.40)150 at 155 it was held that it is the duty of counsel when setting issues in the brief to related them to the grounds of appeal so that if an appeal is allowed it will be easy to know on which grounds of appeal it is allowed. Appeals are allowed as the result of the grounds filed and not in respect of the issues stated more so when the issues cannot be tied to any grounds of appeal.

It was finally submitted that issue No.2 and the grounds of appeal related thereto are incompetent and should be discountenanced. I do not agree with Chief Shittu on this submission. He had in fact abandoned this posture in his preliminary objections. The issue is therefore alive.

As to issue 3 whether the 1st respondent was bound by Exhibit P3 being the acts of their agent within the scope of his ostensible authority, it was submitted that that issue did not arise from the pleadings even though it was canvassed by the appellant’s counsel in his address at the trial. Although the learned trial Chief Judge considered those arguments that did not amount to any miscarriage of justice and cannot affect the judgment of the lower court. The more so as the issue was not covered by any of the grounds of appeal. Chief Shittu had also abandoned his objection; the issue lives.

Issue 4 deals with Exhibit 7. Was it ultra vires the provisions of the Uni­versity of florin Act 1979? It was submitted by learned counsel for the respondent that the issue was not raised in the parties’ pleadings. What was raised in paragraph 30 of the statement of claim and paragraph 2 of the statement of defence was a declaration that the 2nd defendant’s letter dated 22nd November, 1988 dismissing the plaintiff from the 1st defendant’s establishment was ultra vires and therefore null and void. It was in fact not so pleaded although the plaintiff sought it as a declaration. It however arose because of the appellant’s counsel formulating it as an issue during the trial at pages 96-98 of the record. The issue was not also covered by any of the grounds of appeal. Chief Shittu’s submission in this regard are misconceived as will appear later herein.

On issue 5 whether the trial court property evaluated what transpired at the proceedings of the Governing Council on the 21st November, 1988, it was submitted that that issue was also not covered by the grounds of appeal. It can therefore not be argued as an appeal. The appellant did not file an omnibus ground in the notice of appeal. If that has been done this issue could have come under that omnibus ground. Grounds of Appeal Nos. 3 on onus of proof, 4, 5, 6 complaining on lower court’s assessment of oral and documentary evidence of the parties are clearly omnibus in nature.

As to Issue 6 whether the appellant was given a fair hearing by the Governing Council of the University of florin Chief Shittu submitted that that issue was not pleaded. What was specifically pleaded in paragraphs 27 and 28 of the statement of claim and denied in paragraph 2 of the statement of defence cannot be regarded as the issue in question. It was raised in the arguments of the counsel for the appellant and it was considered by the lower court at pages 98 to 102 of the record. But that also did not occasion any miscarriage of justice although it was covered by ground 9 of the grounds of appeal. As it was not pleaded it should not be discountenanced. Fair hearing was clearly in issue. That was why chief Shittu abandoned his preliminary objection in that regard.

As to issue 7 assuming that the Senior Staff Disciplinary and Appeal Committee S.S.D&A.C. had power to recommend the appellant’s reinstatement or removal Chief Shittu submitted that having decided the former could the 1st respondent dismiss him without a fresh re-hearing? Here again these issues were not raised in the pleadings and cannot be entertained without pleadings. Chief Shittu had abandoned his objection to that issue. The issue is alive.

Chief Shittu however on that score submitted that section 15(2) of the Act provides for the suspension by the Vice-Chancellor of a person whose misconduct is prejudicial to the interest of the University. And under Sub-section 4 such suspension should be reported to Council before the expiration of three months. It was submitted that the proper procedure was followed in the appellant’s case. The trial court was therefore right that the power of removal or reinstatement was not delegated to the Senior Staff Disciplinary and Appeal Committee. It was then submitted that all the arguments of the appellant’s counsel that the investigating committee was an agent of council, and bound by its decision should be dis­countenanced having regard to the law and facts in this ease. He thereupon urged that the appeal be dismissed as lacking in merit.

I have given deep thought and consideration to the issues in this appeal, in the light of the briefs of arguments of counsel for the parties, and the judgment of the court below as related to the pleadings by the parties. The first point to note is that the pleadings were inelegant as facts were mixed with evidence which should not be pleaded. A party is to state the facts constituting the wrongs of which he complains, not the evidence by which they are to be proved Thanni v. Saibu (1977) 2 S.C. 89 atl77. Yet, the central issue raised was the validity of the proceedings before council as well as the consequential letter of plaintiff’s dismissal, Exhibit 7 having regard to an earlier letter Exhibit 3 that he was cleared of the charges of misconduct before the S.S.D&A.C. Secondly, the issue of whether those charges of misconduct amounted to commission of crimes was not an issue arising from the pleadings and was indeed a red herring in the case which was not pleaded, but which appeared for the first time in the address by the counsel for the plaintiff/ appellant which the lower court thought it fit to address in obita dicta. It is trite law that parties are bound by their pleadings and what is not pleaded cannot be an issue to be decided by the trial judge. Ambrosini v. Tanko (1929) 9 NLR 8; Domingo Paul v. Mrs George (1959) 4 FSC 198, 201(1959) SCNLR 510 George v. Do­minionflour Mills (1963) 1 All NLR 71 (1963) 1 SCNLR 117 at 77 ; ldika v. Erisi (1988) 5 SCNJ 208, 219 (1988) 2 NWLR (Pt.78) 563. Any decision based on any issue not raised in the pleadings of the parties will not be allowed to stand. Adeniji v. Adeniji (1972) 4 S.C. 10 at 17. Similarly, on appeal, any issue not based on a ground of appeal is clearly not before the court as the whole purpose of the grounds of appeal is to give notice to the respondent of the errors complained of in the judgment appealed N.I.P.C. Ltd v. Thompson Organisation (1969) NMLR 99; Ejowhomu v. Edok Enterprises Ltd (1986) 5 NWLR (PL39) l at 16. In Momodu v. Momoh (1991) 1 NWLR (PL169) 608, 620, 621, Uwais JSC. opined thus:

“It has been stated time without number that issue for determination formulated in a brief must be based on the ground or grounds of appeal filed by the parties – see Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 157. If they are not related to any ground of appeal, then they become irrelevant and go to no issue. Any argument in the brief in support of such issues will be discountenanced by the court ………… In other words the issue for determination in a brief of argument though necessarily based on the grounds of appeal are meant and considered to have displaced the grounds of appeal. Hence the argument in the brief follows the issue for determination and not the grounds of appeal directly. The issues may comprise the substance of the ground of appeal or may contain less but cannot contain more than what have been alleged by the grounds of appeal.”

In this regard, the difference between ratio decidendi and obita dicta should be understood. In the judgment of a court, the legal principle formulated by that court, which is necessary to decide the issue raised in the pleadings, or the grounds of appeal and the issues arising therefrom, to wit, the binding part of the decision is its ratio decidendi, the remainder is obita dicta, to wit, what is not necessary to the decision Sande v. Abdullahi (1989) 7 SCNJ 216, (1989) 4 NWLR (Pt.116) 387 232; Public Trustee v. I.R.C. (1960) 389 A.C. ; Scruttons v. Midland SILICONES Ltd. (1962) A.C. 446. It follows therefore that an obita dicta cannot found aground of appeal except in the rare cases where it occasioned a miscarriage of justice, to wit, a misdirection which must have affected the judgment in a way that is crucial to the decision. Mora & Ors v. Nwalusi & Ors (1962) 1 All NLR 681 at 687 (1962) 2 SCNLR 73. Saude’s case at 23Q-231; Ayoola v. Adebayo & Ors (1969) I All NLR 159 at 164. In the circumstances, the obita dicta of his Lordship the learned trial Chief Judge on issue 8 in no way occasioned any miscarriage of justice and the judgment cannot be impugned on that score.

It is important to examine the charges against the appellant in a letter dated 22 June, 1988, Exhibit PI, under the hand of the Registrar which were identical to those laid in Exhibit D4, of the Council proceedings as follows:

“UNIVERSITY OF ILORIN, NIGERIA Registrar: A.O.A. ALAO, BA, PGCE, (ABU), MA (Lond.)

CONFIDENTIAL P.M.B. 1515 Cables&Telegrams: UNILORIN Telex: 33144 UNILON NG.

Our Ref: UI/SSE/PF/52 Telephone: ILORIN 221685-7 221692-4

Your Ref: 22 June, 1988

Dr. T.T. Bamgboye Department of Chemistry Faculty of Science University of Ilorin Ilorin

Dear Dr. Bamgboye,

RE ALLEGED EXAMINATION MALPRACTICE

You will recall that you appeared recently before your Departmental Investigation Panel which investigated cases of examination malprac­tices in which you were implicated.

As a result of the Panel’s Report and findings, it has become necessary for you to appear before the Senior Staff Disciplinary and Appeals Committee to defend yourself against the following charges:

  1. That you, Dr. T.T. Bamgboye, being a Lecturer in the Depart­ment of Chemistry in the Faculty of Science of this Univer­sity, compromised your position as a Lecturer when, acting in concert with Miss J.O. Maduneme, a student of the Faculty of Science, you permitted the said Miss Maduneme to submit two answer scripts in respect of the same examination, one ostensibly written under an examination condition while the other was written outside examination conditions, and you recorded or caused to be recorded for her higher marks awarded in the answer script written outside examination conditions, an act viewed as a gross misconduct and punish­able under section 15 of the University of Ilorin Act, 1979.
  2. That you, Dr. T. T. Bamgboye, unilaterally and without any reasonable cause altered the marks scored by Miss Adesola Kuye of the Chemistry Department in CRM 201 from 18% to 29% and later from 28% to 49%, an act viewed as a gross misconduct and punishable under section 15 of the University of Ilorin Act, 1979.
  3. That you, Dr. T.T. Bamigboye, established and maintained unusually close intimacy with some female students of your Department, and particularly with Miss Adesola Kuye of your Department, and such intimacy gave the said Miss Kuye access to your office most of the time thereby exposing her to examination materials, including marking schemes some of which she took undue advantage of contrary to University’s rules and regulations.

You should therefore appear before the Committee on Thursday 7 July, 1988 in the Council Chamber at 10.00 a.m. prompt with all relevant documents which you may wish to use in your defence.

Yours sincerely,

(SGD)

A.O.A. ALAO Registrar”

By Exhibit 3 of 17th August 1988, the Registrar informed the appellant that the S.S.D&A.C. absolved him of blame on the first and second charges but found him blameable for giving a student the key of his office where examination materials were usually kept. He was seriously warned and the suspension order on him was revoked. This was followed by Exhibit P5 of 22 September, 1988 which warned the appellant that the Council was seized of the Report of S.S.D&A.C. at its 32nd meeting of 3rd September, 1988 and that council decision would be communicated to him. That was also followed by Exhibit 6 of 18th November, 1988 and to appear with all relevant information at his disposal.

It was obvious that the proceedings before council was based on the two scripts of Miss Maduneme and of Miss Kuye which were not available to the S.S.D&A.C. These were shown to the appellant at the council meeting of 21st November, 1988 for his comments. He admitted the markings were his or those of the graduate assistant who helped him with the marking. He did not deny responsibility for the enhanced pass marks on the two scripts or that he did not give Miss Kuye the key to his office. The council could not be said to have denied him fair hearing. It was the appellant who offered no valid defence to the charges. The council was therefore right to decide and to record the following conclusions extracted from Exhibit D4:

363 “After carefully deliberating over the evidence before it, Council made the following observations:

(i)      That with regard to the first charge, it was felt that Miss Maduneme’s examination script marked by another lecturer was assessed 0 out of 50 but laterDr. Bamgboye assisted her to write another paper which he, Dr. Bamgboye marked and awarded 45 out of 50 marks;

(ii)     that all marks recorded by Dr. Bamgboye in respect of Miss Maduneme were falsified;’

(iii)    that in one question Dr. Bamgboye awarded Miss Maduneme 51 marks out of 50;

(iv)    that on the basis of the foregoing evidence (i-iii), Dr. T.T. Bamgboye was found guilty of alteration and falsifica­tion of results of Miss Maduneme;

(v)     that Dr. Bamgboye was unable to explain why Miss Kuye’s marks were altered in a way that enable her to earn a predetermined percentage;

(vi)    that Dr. Bamgboye was found guilty of maintaining unnecessarily close intimacy with a student, an association described as being beyond normal teacher/student rela­tionship; and

(vii)   that on the strength of the evidence before it, Professor Yoloye should be requested to answer disciplinary charges on this case.

In view of the foregoing observations, Council directed as follows:

(i)      That Dr. T. T. Bamgboye be removed from the services of this University by summary dismissal, in accordance with the provisions of section 15 of University of Ilorin Act, 1979.

(ii)     that the two examination scripts belonging to Miss Maduneme be kept very carefully by the Administration, and that authenticated copies should be given to the Registrar for safe keeping.

(iii)    that Professor-V.L.A. Yoloye be required to answer disciplinary charges in connection with Miss Kuye.

SGD (Registrar & Secretary to Council)”

The law on fair hearing will be examined after a review of the issue of the relationship of the S.S.D&A. C. with the council under Sections 15 and 21 of the University of Ilorin Act. It was the contention of the appellant that it was one between an agent and its principal, or alternatively a case of delegated power from the council to the S.S.D&A.C. Significantly, the Act is in pari materia with those establishing other Universities in Nigeria and in Commonwealth Countries. Under Section 15, removal, or discipline of the academic, administrative or professional staff of the University other than the Vice-Chancellor, for misconduct shall give the member of staff:

(1)(a) (b)

the notice of the complaints against him;

an opportunity of making representation in person on the complaints to the council;

at his request or those of other three members of council, within one month of the notice of complaints council may arrange:

(i)      a joint committee of the council and the Senate to investigate the complaints and report on it to council;

(ii)     the member of staff should be allowed to appear in person to defend himself before that committee which must lay a report before council. The council after considering the report, may, if so satisfied remove the member of staff from his office by an instrument in writing signed on the directions of council;

(2)     The Vice-Chancellor in the case of misconduct, by a staff member, which is prejudicial to the interests of the university may suspend such member and report same to council;

(3)     for good cause, including a scandalous or disgraceful conduct, the council may suspend or terminate the appointment of a member of staff;

(4)     Any person suspended under (2) and (3) shall be on half pay and the council within three months shall decide whether to – (a) continue the suspension

(b)     reinstate such person

(c)     terminate his appointment

(d)     take a lesser disciplinary action.

Where the council adopts (a) or (d), the council shall take a final decision within three months thereof.

Section 21 of the Act provides that any body of persons established by the Act have the power to appoint committees (I) (a) to exercise, on its behalf, such of its functions as it may determine,

(5)     Other than a committee appointed to inquire into the conduct of an officer, the Pro-Chancellor and the Vice-Chancellor shall be members of every committee of which some or entire members are appointed by council; and the Vice-Chancellor shall be a member of a committee of which some or all members are appointed by the Senate.

It is therefore crystal clear that the Departmental Investigating Committee, the Faculty Investigating Committee, or the Senior Staff Disciplinary and Appeals Committee which investigate any officer’s misconduct, has a duty to make a report to Council, it has no power to hear and determine, definitively the matter as only the Council under Section 15 of the Act has the power to hear and determine definitively any allegations of misconduct against any officer. Therefore the arguments of learned counsel for the appellant, that the S.S.D&A.C. was either the agent of Council, or had its disciplinary powers delegated to it are misconceived. The appellant anchored his appeal on three main questions:

(1)     Whether the University Council delegated its power to the Senior Staff Disciplinary and Appeals Committee or is an agent of Council so that its exculpation of the plaintiff was binding on Council.

(2)     Whether the Registrar, the 2nd defendant/respondent was an agent of the Council.

(3)     Whether the appellant received fair hearing before the Council. A positive answer to question (1) and (2) validate the 2nd defendant’s letter of 17th August, 1988 Exhibit P3 revoking plaintiff/respondent’s suspension order and absolving him of any blame on examination malpractices, and restoring his full emolument to him. It would also be binding on Council. Consequently the letters of 22/9/88, Exhibit P5, informing the plaintiff that Council was seized of the matter, the letter of 18/11/88, Exhibit 6 inviting him to appear before the Council and the letter of 22/11/88, Exhibit P7 dismissing him from the services of the University would all be null and void.

Delegation and agency were pleaded by the plaintiff in paragraphs 7, 21, 22, 25 of the statement of claim and were denied in paragraphs 2, 3, 4 and 11 of the statement of defence. See also paragraphs 1-5 of the plaintiff’s reply to the statement of defence, and paragraph 1-3 of the defendant’s rejoinder to the reply grounds 2, 3, 6. and 7. Issue 2 for determination relates to delegation of power of Council to the S.S.D&A.C., whilst issue 3 relates to the Registrar the second respondent as the agent of Council.

Section 9(2) of the University of Ilorin Act 1979 provides that subject to Section 22 (6) of the Act, the Interpretation Act, 1964 shall apply to any statute made under the University Act as it applies to a subsidiary instrument within the meaning of Section 27(1) of the Interpretation Act. In it, a “subsidiary instrument” means any order, rules, regulations, rules of court, or by laws. Section 10(1) of the Interpretation Act provides that where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as the occasion requires. Sections 11 (1) of the Interpretation Act provides that if an enactment confers a power to appoint a person either to an office or to exercise a function, as in the case in hand, the power includes the power to appoint by name or the holder from time to time of a particular office. Thus an appointment might be made by letter or a Gazette Notice. – whenever a statute provides for the delegation of a Statutory Power. On the other hand, it may be by an Act, a Subsidiary Instrument or Legislation, or in any manner prescribed in that statute. See Section 12, Interpretation Act, 1964. For example the Minister of the Federal Capital Territory (Delegation of Powers) Decree 1985, No. 12 delegated the powers of Mr. President to the Minister of the Federal Capital Territory and all the functions conferred on the Military Governor of a State. It can also be signified by a letter under the hand or direction of the delegator. What then is the law on agency, or delegation. According to Halsbury’s Laws of England 4th Ed. Vol. l P.418 agency, in Law is used to connote the relation which exist where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. International Havester Co. Australia Pry v. Carrigans Hazeldene Pastoral Co. (1958)100 CLR 644 at 652; Niger v. N.E.L (1989) 3 NWLR (Pt.107) 68, 92, 93. The relation of agency arises whenever one person, called the agent, has authority to act on behalf of another, called the principal and consents to act. Brook v. Bool (1928) 2 KB 578. Authority maybe implied from the subsequent assent of the principal. The question whether that relation exists in any situation depends, not on the terminology used by the parties to describe it, but on the nature of agreement or the circumstances of the relationship or previous dealings between the principal and agent. De Bussche v. Alt (1878) 8 Ch. D. 286; Samuel Bros Ltd. v. Wetherley (1908) 1 KB 184; SCOA v. Okoehor (1958) 3 FSC 87 at 88, (1958) SCNLR 303.

It is therefore trite law that agency arises mainly from a contract or agreement between parties, express or implied Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt.107) 68, (1989) 4 SCNJ 232, 240. In Rosenje v. Bakare (1973) 5 SC 131, 139-140 the Supreme Court opined that Section 5 (2) of the Law Reform (Contracts) Act 1961 does not prescribe any form of authorisation in writing or any form of informal authorisation. Heard v. Pilley (1869) LR. Ch. App. 548, 551, 552. It may al so be inferred from the circumstances Davies v. Sweet (1962) QB 300, 305; SCOA v. Okoebor (1958) 3 FSC 87; (1958) SCNLR 303 An informal appointment of an agent may be ratified later. Imona­ Russel v. Niger Construction Ltd. (1987) 3 NWLR (Pt.60) 298. A corporation must however appoint an agent under seal. Omotosho v. Registered Trustees of Diocese of Ibadan (1960) 1 All NLR 287. A director is an agent of his company. Although true agencies arise by agreement, there are circumstances in which the law recognises agency by estoppel in which case the principal may be estopped from denying that another is his agent and his relationship with third parties may be affected by the acts of the other. Trenco Ltd. v. African Real Estate and Investment Co. & Anor. (1978) 4 SC 9, 25, 26. A donee of a power of Attorney is an agent of the donor of that power, and there is a judiciary relationship between the two of them. Diab NASR & Anor v. Antoine Rossek (1973) 6 S.C. 121, 133, 134.

A servant oran independent contractor, though not necessarily the employer’s agent may often have authority to act as such when relations with third parties are involved. Archer v. Moss, Applegate v. Moss (1971) 1 QB 406 (1971) 1 All E.R. 747 that was a case where a builder, any independent contractor, was held to be the agent of the developed for purposes of the Limitation Act. An agent, who is the servant of the principal is subject to the direct control and supervision of the principal Barnett v. South London Tramway CO. (1887) QBD 815.

The general rule is that whatever a person has power to do himself, he may do by an agent. Bevan v. Web ( 1901 ) CH. 59.,77. The apt maxim is: quid facit per aliums, facit per se. He who acts through another, acts for himself. The exception are (1) where the transaction is required by statute to be evidenced by the signature of the principal himself. Hirst v. Riding Union Banking Co. (1901) 2 KB 560 , and (ii) where the competency to do the act arises by virtue of the holding of some public office or by virtue of some power, authority, or duty of a personal nature and requiring skill or discretion for its exercise, Re Great Southern Mysoe Gold Mining Co. (1882) 48 LT 1 11, or where a statute imposes on a person a duty which he is not free to delegate. However, where functions entrusted to a minister of State are performed by an official employed in the minister’s department, there is in law no delegation because constitutionally the act or decision of the official is that of the minister. Carltona Ltd. v. Works Commissioners (1943) 2 All E.R. 560. However, an agent to whom power is delegated cannot further delegate it without the express authority of the principal, or authority derived from statute. Barnard v. National Dock Labour Board (1953) 1 All E.R. 1113. Statutory disciplinary functions cannot be delegated. Vine v. National Dock Labour Board (1956) 3 All E.R. 939. Where a local authority, which is a creature of statute, like the University Council, appoints a committee for the discharge of certain of its functions, the committee is merely a machinery for the discharge by the authority of the business entrusted to the committee all of whose acts are subject to the authority’s approval R. v. Sunderland Corpn (1911) 2 KB 458, 462 per Lord Alverstone C.J.

The case of Vine v. N.D.L.B. cited above is very instructive. Clause 15(4) of the Dock Workers (Regulation of Employment) Act, 1946 provides:

“The Local Board shall consider any written report received under para (2) or para (3) hereof, and if, after investigating the matter, the Board notifies the registered Dock Workers that it is satisfied that there has been a failure or behaviour as aforesaid, the registered worker shall not be entitled to payment.”

The national Board approved the delegation of disciplinary powers to committees set up by the Local Board which examined the case of the appellant and terminated his employment. He sued for a declaration that his purported dismissal was illegal, ultra vires and invalid, and for damages. The High Court granted the remedies, on appeal to the Court of Appeal, the declaration was struck out. On further appeal to the House of Lords, it was held that the plaintiff’s dismissal was a nullity since the Local Board had no power to delegate its disciplinary powers.

As regards delegation of duties or functions, the word agent and delegate are however interchangeable in law. In Manton v. Brighton Corporation (1951) 2 All E.R. 101, Slade J. applying Hugh v. Clarke (1890) 25 QBD 391, opined that the responsibility for the due discharge of the statutory duties delegated by the Brighton Council to the committees remained with the Council. In Hugh v. Clarke opt cit Lord Coleridge C.J. at 394 opined thus:

“The word `delegation’ implies that powers are committed to another person or body which are as a rule always subject to re­sumption by the power delegating, and many examples of this might be given. Unless therefore it is controlled by statute, the delegating power can at any time resume its authority.”

Therefore, as further opined by Lord Coleridge C.J. at 394, not only can the delegating power resume their authority, with which, indeed, they have never parted, but they can also revoke the authority which they have delegated. The word delegation does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegatus non potest delegare that is, a delegate cannot further delegate. The word ‘delegate’ means little more than an agent.

By virtue of Section 2 (2) of the University of Ilorin Act the Principal Officers of the University are set out in Schedule l. Section 5 (1) & (2) thereof provides for the appointment of a Registrar who shall be the Chief Administrative Officer of the University and be responsible to the Vice-Chancellor for the day-to­day administrative work of the University, except matters assigned to the Bursar. The Registrar is the Secretary to the Council, senate, congregation, and convocation which are some of the body of persons established by Section 9 (3) of the Act, and set out in the 3rd Schedule as Statute No. l. It follows that the Registrar cannot validly do any act without the instruction or directive, of the Vice Chancellor, the Council, senate, the congregation, or the convocation. The Registrar is therefore a servant of the University, and not an agent of any of those bodies. Whenever the Registrar purports to act as an agent to any such bodies, such as the Council, he is subject to the direct control and supervision of Council. Any act done by the Registrar without the direction or approval of Council is void. Barnett v. South London Tramway Co. (1887) 18.QBD 815.

Under Section 21(1) of the Act any body of persons established under the Act including the Council, had the power to appoint committees to exercise, on its behalf, such of its functions as it may determine. One of such committees is the Senior Staff Disciplinary and Appeals Committee. Professor Jegede has in his submission construed this power of Council under Section 21 of the Act to appoint a committee to perform certain functions as an out right delegation of its power, such that the Council cannot override, but is bound by the decision of the S.S.D&A.C. Professor Jegede’s argument in that regard, is with due respect, misconceived. As stated above, R. v. Sunderland Corporation (1911) 2 KB 458, 462 is the authority for the proposition, that where a creature of statute like the University Council appoints, or delegates a committee for the discharge of certain of its functions, that committee is merely a machinery for the discharge by Council of the business entrusted to that committee, and all the acts of that committee are subject to Council’s approval. Besides, it is trite law that the words agent and delegate are, in law, interchangeable; nevertheless, where an authority, the creation of statute like the University Council delegates to a committee a particular function or statutory duty, in this case the power, inter alia, to discipline certain categories of staff, the responsibility for the due discharge of that statutory duty resides in the Council. Hugh v. Clarke (1890) 25 QBD 391, 394 per Lord Coleridge C.J. Further, the Council has not by its delegation of a statutory duty disburdened itself of that statutory duty, nor has the Council parted with it. A person who delegates his power still has its residium and can still validly exercise that power. Are v. Adisa and Nigerian Housing Development society (1967) 1 All NLR 148,151.154. He retains that statutory duty, but confers an authority on that committee to do that which he has to do. The S.S. D&A.C. was therefore subject to Council’s approval of its acts, or report of the acts the committee was authorised to do. The University Council itself is a delegate of the University, and it cannot further delegate its statutory duties. Under Section 1 (1) and (2) of the Act, the University of Ilorin is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. Under Section 2(1) and (3) thereof, the Pro-Chancellor and Council is a constituent of the University; and in Schedule 3, the Council is a body, or delegate or agent of the University. The applicable maxim is Delegatus non potest delegare. A delegate cannot delegate.

The last question is whether the appellant was accorded a fair hearing by the council in compliance with Section 33 of the 1979 Constitution and Section 15 of the Act, by the observance of the twin pillars of the rules of natural justice, namely:

(i)      Audi alteram partem – hear the other side, and

(ii)     Nemo judex in causa sau, no one should be a judge in his own cause; the rule against bias.

Failure by any tribunal, which has a duty to decide anything like the University Council, to observe any of those two rules renders its proceedings and decision a nullity. The Council was not a Court of Law, nor were its proceedings a trial. It need not call witnesses, all that is necessary as prescribed by Section 15 of the Act is that the complaints of misconduct must be brought to the notice of the officer, and he must be given an opportunity to answer them – If witnesses who are his accusers are called, then he must be present to hear and cross examine them. In the case of the Local Government Board v. Arlidge (I914)A.C. 120 Viscount Haldane L.C. puts it this way at p.133.

“I agree with the view expressed in an analogous case by my noble and learned friend Lord Loreebun. In Board of Education v. Rice (1911) A.C. 179, he laid down that, in disposing o of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, in as much as that was a duty which lay on every one who decided anything. But he went on to say that he did not think that it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the Board failed in this duty, its order might be the subject of certioriari and it must itself be the subject of mandamus.”

In this regard the cases of Miss Olajobi Abinbela Akintemi & 2 Ors. v. Professor C.A. Onwumechili, Vice-Chancellor University of Ife & Anor (1981) OY.S.H.C. 457, a judgment of mine, is instructive. So are the cases of Gl yn v. Keale University (1971) 1 WLR 487, and Ceylon University v. Fernando (1960) 1 WLR 223 at 232. In Fernando’s case, the Privy Council opined thus:

“What are the requirement of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith.”

In the case of Smith v. East Elloe Rural District Council (1956) A.C. 736, 771, the court as regards bias and bad faith opined thus:

“It has been said that bad faith is an example of ultra vires…………………………………………………………… The following passages from Warrington L.J., as he then was, is perhaps the most favourable to this argument (Short v. Poole Corporation) (1962) Ch. 66, 91 `My view then is that the only case in which the court can interfere with an act of a public body which is, on the fact of it, regular and within its power, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument amounts to bad faith, corruption, alien and irrelevant motive, collateral and indirect objects and so forth, are merely intended when properly understood, as example of matters which if proved to exist, might establish the ultra vires character of the act in question’. This way of describing the effect of bad faith should not be used to blur the distinction between ultra vires act done bone fide and an act on the face of it regular but which will be held to he null and void if mala fides is discovered and brought before the Court.”

The principle of audi alteram partem was exemplified by the Supreme Court in Adedeji v. Police Service Commission (1967) 1 All NLR 67,71-72 (1968) NMLR 102 where Ademola C.J.N. opined thus:

“However that may be, since it is clear from record before us that the complaint against the appellant was made in the first place, in writing, in our view the proper course was for the Police Service Commission to supply the appellant with a copy of the written complaint against him. The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself. As the Privy Council put it in the case of Kanda v. Government of Fed­eration of Malaya (1962) A.C. 322:

‘if the right to be heard is to be a real right which is worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence had been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them’.”

See also Sofekun v. Akinyemi (1980) 5-7 S.C. 1; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.

As to bias, nemo judgx in causa sua, it means the trial or proceedings has been influenced, inter alia, by corruption, or favouritism, see Elloe D.C.’s case above; or by the tribunal descending into the arena, and thereby discarding the role of an arbiter, and participating in the battle. Such was the case in Reuben Umenwa v. Gabriel Umenwa & Anor (1987) 4 NWLR (Pt.65) 407 where a lawyer appeared for a party in a case, and on becoming a judge also set to decide the dispute. Bias is always difficult to prove save in proven cases of bribery; and that is why the law stipulates that a mere likelihood of bias suffices. In Kujore & Ors. v. Mrs. Ebun Otunbanjo (1974) 10 S.C. 173, 180 the Supreme Court opined thus:

It is our view, depending of course on particular circumstances, that it is sufficient if materials are supplied which in the opinion of an independent person, could be considered as suggesting a real likelihood of bias.”

All these are further exemplified by the dictum of Blackburn J. in R. v. Rand (1866) L.R. 1 Q.B. 230 that:

“It is not only of some importance, but it is of fundamental importance that justice should not only be done, but should be seen to be done.”

Professor Jegede learned counsel for the appellant argued that audi alteram partem was breached in that witnesses were called behind the appellant who testified before that Council. Exhibit 4, the Council Proceedings did not bear that out. The Dean of his Faculty was sent to bring in the scripts of the students mentioned in the charges. In fact if there were any accusers or evidence against him, they were those scripts and the Council rose to give him an opportunity to study them and prepare his representations. The appellant was judged by his answers as to how he marked those scripts. A student wrote two scripts, one in the examination hall where she scored zero over 50, and another written at leisure where she scored 45 out of 50. Also, there was the marking and remarking of Miss Kuye’s scripts, whose marks were increased. The appellant was given every opportunity to defend himself, this time, unlike before the S S. D&A. C. where he scored himself high that he ably defended himself; as he was then not confronted with the scripts, when he failed woefully; audi alteram partem was therefore observed.

The appellant also complained of bias as certain persons who were in the S. S. D&A.C. investigating committee were also in council. But having regard to Section 15 of the Act, that could hardly be avoided. The important thing to note was that the appellant’s case was judged on documentary evidence where no likelihood of bias could be traced. The appellant could also not point out an atom of bad faith on the part of Council. The appellant’s complaint in that regard was the issue of Exhibit P3 which exonerated him on two of 3 charges, be it noted that the S S.D&A.C. had not the scripts before it. That letter could be said to be ultra vires the Registrar as shown above, even if S.S.D&A.C were the agent of Council its acts, to be valid, must be ratified by the Council. Exhibit P3 was not only premature, it was also a violation of Section 15 of the Act and is therefore of little value, it was void. That explains why Exhibits P5 and P6 intimating Council’s intention and inviting the appellant to defend himself before Council were issued.

In the circumstances, and in the light of the exposition of the law in the authorities cited herein, all the submissions of Professor Jegede on issues 2 and 3 delegation and agency, being misconceived, are dismissed. Consequentially issue 4, that Exhibit 7 is ultra vires the provisions of the University of Ilorin Act 1979, and issue 7 on whether the S.S.D&A.C. had the power to order the appellant’s reinstatement are also dismissed. As to the omnibus issue 5, whether the court properly evaluated what transpired in Council, Professor Jegede failed to proffer any tangible argument to sustain the issue as indicated herein, that issue is also dismissed. Issue six must also fail having regard to my opinion herein. In sum, this appeal is dismissed seriatim and in toto, with N450.00 costs in favour of the respondents.

AIKAWA, J.C.A.: I had the opportunity of a preview of the lead judgment just delivered by my learned brother Ogundere, J.C.A. I agree with him that neither a Committee appointed by the Council of the University, nor the Registrar of the University can be a delegate or agent of the Council under Sections 1,2,15 and 21 of the University of Ilorin Act. The decision of the Senior Staff Disciplinary and Appeals Committee, and any act of the Registrar is therefore subject to the approval, and direction of the Council respectively. The issues in the appeal founded on delegation and agency are accordingly dismissed. As the appellant was given an opportunity by Council to explain the different marks he gave on the two examination scripts in respect of a single paper in chemistry of a candidate, and the enhanced marking on the examination script of a second candidate on the same paper, which he did, he cannot succeed on the issue of denial of fair hearing.

For these and the fuller reason in the lead judgment, I too hereby dismiss this appeal with N450.00 costs in favour of the respondents.

OKUNOLA, J.C.A: I have had a preview of the lead judgment just delivered by my learned brother Ogundere J.C.A. I agree with the reasoning and conclusions in the said judgment and I have nothing useful to add. It must however be stressed that the facts disclosed in this appeal showed a decline in the conduct of some of the members in our institution of higher learning who are full fledged professors. I will say this is a negation of the ethics of academia and Discipline. As revealed from the records, this breakdown of discipline in the affair of the two professors affected the conduct of their official duties with respect to the two undergraduates in this appeal.

Be that as it may, I agree with the lead judgment that submissions on issues 2 -6 by Prof. Jegede fail. In sum, I also dismiss this appeal seratim and intoto with N450.00 costs in favour of the Respondent.

Appeal dismissed.

 

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