3PLR – ALAN FEMI LANA V. THE UNIVERSITY OF IBADAN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALAN FEMI LANA

V.

THE UNIVERSITY OF IBADAN

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/83/85 (1987)

WEDNESDAY, 8 JULY, 1987

3PLR/1988/10  (CA)

 

OTHER CITATIONS

(1987) 4 N.W.L.R. (Pt.64) 245

 

BEFORE THEIR LORDSHIPS:  

UCHE OMO, J.C.A. (Presided and Read the Lead Judgment)

MICHAEL EKUNDAYO OGUNDARE, J.C.A.

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

 

REPRESENTATION

Olisa Chukwura ESQ. S.A.N. (O. J. Bamgbose ESQ. with him) – for the Appellant

1. R. A. Williams ESQ. S.A.N. (Mrs. A. Williams with him) – for the Respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW – Right to fair hearing – Trial for “dishonesty” and “academic fraud” by disciplinary committee – Whether a violation of S.33 1979 Constitution – SOFEKUN V. AKINYEMI – extent of application.

PRACTICE AND PROCEDURE- DAMAGES – Libel – Failure of substantive claim – Duty of lower court to still assess damages.

PRACTICE AND PROCEDURE- EVIDENCE – Admissibility – Admitted inadmissible evidence – Duty of court.

MASTER AND SERVANT – Termination of service – Compliance with con­tract of service – Onus of proof.

MASTER AND SERVANT – Termination – Payment of salary in lieu of notice – When not valid.

PRACTICE AND PROCEDURE – Pleadings – binder of issues – Submis­sions on issues not joined – Effect thereof.

PRACTICE AND PROCEDURE- Pleadings – Purpose and effect thereof.

PRACTICE AND PROCEDURE – Pleadings – Reliance on statute – Duty of party.

TORTS – Libel – Defamatory words – Whether must be false and malicious.

TORTS – Libel – Defamatory words – Consideration of falsity – Effect on addressee.

TORTS – Libel – Qualified privilege – Duty of defendant.

 

MAIN JUDGEMENT

UCHE-OMO, J.C.A. (Delivering the Lead Judgment):

This is an appeal against the dismissal by the Oyo State High Court. Ibadan Judicial Division. of the plaintiff/appellant’s claim for:­

 

‘1.      A DECLARATION that the Plaintiff ceased to be an employee of the University on 6th January 1981 when the Plaintiff by letter dated 6th January 1981 addressed to the Vice-Chancellor of the University resigned his appointment as Senior Lecturer in the Department of Agricultural Biology and paid three months’ sal­ary in lieu of notice, and the resignation was accepted.

 

2. A DECLARATION that the purported dismissal of the Plaintiff from the University service with effect from 27th February, 1981 as contained in the letter of the University dated 27th February 1981 (and publicized widely in the news media in Nigeria) was actuated by malice. is improper. unlawful. ineffectual, null and void.

 

3. The Sum of N1(t),000.(X) (One hundred thousand Naira) being damages for LIBEL in that the University falsely and maliciously wrote and published in its “University of Ibadan Official Bulle­tin” (Special Release) No. 498 dated 27th February 1981 defamatory matter of and concerning the Plaintiff.”

 

Before dismissing the claim in its entirety the learned trial Judge heard the evidence led by both parties during which over 70 exhibits were admitted in evidence. He was also addressed by counsel on their behalf.

 

The facts of this case. which are largely undisputed, show that the appellant was employed as a lecturer in the University of Ibadan’s Depart­ment of Agricultural Biology in February, 1975, on terms and conditions set out in Exhibit AB. By the time this present cause of action arose he had risen to the post of Senior Lecturer and was being considered for promotion to the post of Reader (otherwise called Associate Professor). Whatever other faults/weaknesses the appellant had (or has) he had by his hard work and brilliance become recognized as “a leading plant virologist in Africa.”

 

During the 197918(1 session, in the course of a promotion exercise, it was discovered that he had made some wrong claims about two publications by him in his curriculum vitae. This was considered a serious offence by his Dean and Head of Department who initiated action which led to his appear­ing before the Staff Disciplinary Committee of Council, which found him guilty of “an act of dishonesty,” an “offence” which could attract the punish­ment of dismissal. He was however dealt with leniently, the “sentence” being that he would not be considered for promotion in the subsequent three years. The appellant, dissatisfied with this decision, appealed against same Council which alone had the power under Exhibit AB to act in the matter and

 

(a)     when the conduct of the University and its functionaries throughout pointed to no other conclusion but that the appellant’s resignation had been accepted with effect from 6th January, 1981;

 

(b)     the University did not produce available relevant witnesses and evidence on the issue’’

 

The simple and short answer to the question asked is that the onus is on the appellant to prove that the Council gave him consent to resign without com­plying with the provisions of paragraph 10 of Exhibit AB. It is he and not the respondent who should call witnesses to discharge that onus and this he had failed to do.

 

If it is urged on his behalf that the Vice-Chancellor cannot act for the Council to grant a waiver, which the appellant had specifically asked him in paragraph 2 of Exhibit F to do, how can the actions of a Chief Cashier and/or a Bursar. officers far junior and responsible to the Vice-Chancellor consti­tute such a waiver? Specifically on the payment of three months salary in lieu of notice I agree with respondent’s counsel that “there is nothing in Exhibit AB which enables the appellant to terminate the (his) contract of service by paying 3 months salary in lieu of notice.” The acceptance by the cashier or Bursar of such money cannot therefore constitute a valid resignation. The first declaration sought is therefore hereby refused.

 

The second question for determination (per respondent), which deals with the second declaration sought by the appellant, challenges the dismissal of the appellant by the respondent as “actuated by malice, improper, unlaw­ful, ineffectual, null and void.” Before considering this issue some further background information may usefully be stated as follows:

 

Following suspicions which he had about the correctness of certain entries made by the appellant in his curriculum vitae, pursuant to a promotion exer­cise in 1980, his Head of Department, Professor Esuruoso, checked out same by communicating with the publishers/editors of the relevant magazine – Phytopathology – in the United States. On his investigation seeming to con­firm his suspicion that some false claims had been made by the appellant he referred the matter to the Vice-Chancellor (Exhibit XX19 refers), who then called upon the appellant for an explanation. Both then called upon the appellant for an explanation(s) – vide Exhibits X to X5 – were referred to and considered by the Staff Disciplinary Committee, before which the appellant also appeared in person and made oral submissions. This Committee having found him guilty of an “act of dishonesty” dealt with him leniently by only recommending that he be not considered for promotion for three years. This recommendation was accepted and confirmed by the Vice-Chancellor. The appellant, taken aback by this decision, applied for a review of same by the Committee to which he made a written submission – Exhibits ZZ – ZZ17 dated 4/11/80, in which he sought to show that whilst he may have been “guilty” of negligence, and carelessness in making the entries in his cur­riculum vitae, he had no dishonest motive in so doing, and was therefore not guilty of an “act of dishonesty.”

 

The Staff Disciplinary Committee held four meetings altogether in which this matter was considered on the 8th. 12th. 13th and 30th January 1981 – Exhibit ZZ23 refers. On the first three occasions, despite efforts to secure his attendance, the appellant was absent at its proceedings. On the third of these occasions the Committee, chaired by the Vice-Chancel­lor, after it had “discussed the matter in great detail,” on the basis of docu­ments before it, and without hearing the appellant, highlighted the following points which, with the final decision arrived at, is set out verbatim from its minutes thus-­

 

“(1)   that Dr. Lana must have deliberately decided not to appear before the Committee in spite of the several attempts made to reach him by letters and in person.

 

(2)     that the Committee, being a Committee of Council was empo­wered to deal with staff disciplinary matters and to summon such staff before it to defend himself and that in case of anyone not satisfied with the Committee’s decision, he or she could appeal to Council

 

(3)     that in the light of the new evidence now made available, the Com­mittee was in a position to review its earlier decision.

 

(4)     that any decision to be taken should be such that would make it impossible for him to get any academic position elsewhere but that whatever punitive measure that would be meted out to him should be done in strict conformity with the normal University administrative machinery so as to block all possible loopholes in case of any appeal in future.

 

(5)     that Dr. Lana had been afforded ample opportunity to appear before the Committee to defend himself against the new allega­tions. In this regard, the Committee having satisfied itself that everything possible had been done to get Dr. Lana to appear before it, decided to proceed to take a decision in respect of the case in the light of the overwhelming evidence before it.

 

Decision of the Committee:

 

That taking the circumstances of the case into consideration in all its entirety and especially the overwhelming evidence which had now surfaced, the Committee considered that the actions of Dr. Lana con­stituted grave academic fraud and insubordination to the authority of this Council Committee and the Vice-Chancellor who is the Executive head of this University. Consequently. the Committee decided that Dr. Lana be dismissed from the service of the University in accordance with his memorandum of appointment. ‘ Vide Exhibit ZZ23 pp.5213.

 

It is to be noted that the appellant had in fact purported to resign his appoint­ment on 6/1/81 before the first sitting of the Committee to consider the review.

 

Six days after the third meeting, on 20/1/81, the Vice-Chancellor called an “emergency meeting-, which Dr. Lana. for the first and only time attended. At this meeting it is recorded that:­

 

“The Vice-chancellor briefly welcomed Dr. Lana to the meeting and informed him (Dr. Lana) that he had been sum­moned to appear before the Committee in connection with his letter of appeal and other fresh evidence arising from his case. The Vice-Chancellor then asked Dr. Lana why he did not show up at previous meetings in spite of the repeated directives of the Com­mittee to this effect.

 

Dr. Lana apologized to the Committee for his failure to show up before the Committee on the two occasions, which was due of course, to the fact that he had been away from the country, for sometime on personal business. He would, however, like to inform the Committee that he had decided to appear before it as a matter of courtesy especially as he did not now consider himself a member of the University staff following the resignation of his appointment from the University with effect from the 6th of January, 1981, having paid 3 months salary in lieu of notice,” vide p.54 of Exhibit ZZ23.

 

Although he could not present any evidence of a waiver of his terms of employment re his resignation, and admitted receiving the letters refusing him waiver, he insisted that he considered his resignation in order and that he was no longer a member of the respondent’s staff and therefore not sub­ject to its discipline. When asked if he had received Professor Peterson’s let­ter, he admitted receiving it but said he had not reacted to it because he was “busy making some preparatory arrangements against his new appointment in Rome.” The Appellant then excused himself from the meeting which then proceeded to deliberate on the matter.

 

The points thereafter highlighted and the decision arrived at by the Committee are set out again in its minutes as follows:­

 

“1.     that Dr. Lana should not have left his post without waiting for the reply to his letter of resignation from the Vice-Chancellor. His absence from duty constituted a dereliction of duty for which he should be punished.

 

2. that as far as the Committee was concerned, Dr. Lana was still a member of staff of this University until the Vice-Chancellor had accepted his letter of resignation. This point was also emphasized by the Vice-Chancellor.

 

3. that Dr. Lana was also answerable to all the allegations levelled against him to date.

 

4. that the Vice-Chancellor had a right to reject Dr. Lana’s letter of resignation since he did not conform with the usual University practice regarding the procedure for resignation of appointments by academic staff.

 

5. that the Committee was not satisfied with Dr. Lana’s explanation for his refusal to appear before the Committee in spite of repeated directives from the Committee until the last meeting.

 

After considering the matter in all its ramifications and especially the various issues involved, including the overwhelming evidence before the Committee, the following were decided:­

 

1. that the Committee should meet as a full house to consider all the minutes of the previous meetings on this case to date to enable it take a final decision for onward transmission to Council.

 

1. that meanwhile, Dr Lana should he suspended from duty with­out pay pending final determination of his case by the Committee and Council.”

 

Although there is no record before this court of any subsequent meeting of the Committee as proposed, it is a fact that a letter of suspension was served on the appellant, and thereafter a letter communicating his dismissal (exhibit AA refers).

 

The main submissions made by appellant’s counsel on this second issue are six in number, and they are as follows:­

 

(1)     That the Staff Disciplinary Committee, which considered the appellant’s appeal is incompetent because it has no locus standi and lacks vires.

 

(2)     That the proceedings before that Committee was perverse, man­ifestly malicious and in bad faith.

 

(3)     That the grounds for dismissing the appellant were not estab­lished.

 

(4)     That the Staff and Disciplinary Committee acted in breach of the rules of natural justice in coming to the decision it arrived at.

 

(5)     That the entire deliberations of the Committee is a nullity because it purported to investigate a complaint which charged the appellant with fraud, an offence with a criminal content con­trary to the provisions of section 33 of the 1979 Constitution.

 

(6)     That the dismissal of the appellant is null and void because the statutory provisions for dealing with such matters by the Council as set out in section 9 of the Statute creating the respondent. were not observed.

 

Before any of these submissions can be considered and a decision for or against the appellant arrived at there upon they must be supported by facts duly pleaded and issues joined on them. Respondent’s counsel in his oral arguments before us has submitted that there is nothing in the pleadings on which the six submissions of appellants counsel set out herein before can hang. and that therefore all the evidence led in support thereof goes to no issue, and should be disregarded.

 

The appellant’s statement of claim contains 27 paragraphs which need not be set out in full here. It is enough to summarize them as follows:­

 

(1)     Paragraphs I to 13 set out the fact of the appellant’s appoint­ment; details of his resignation: an invitation by the Secretary of the Staff Disciplinary Committee to appear before it in respect of an appeal he had filed before his resignation: his indefinite sus­pension from work by the University pending a determination of his case by the Council and an averment that a “programme of oppression was unleased” against him by the University which he protested against through a letter dated 31/l/81.

 

(2)     Paragraphs 14 to 24 dealt mainly with facts supporting and relev­ant to the third aim of his claim. to wit, libel by the respondent.

 

(3)     Paragraphs 25 to 27 are set out as follows:­

 

“25.   The allegations of the University had been resolved save for the use of the word “dishonesty” by the University for what the Plaintiff insisted should at the worst, be negli­gence on his part, for the reasons stated.

 

26. The “fresh evidence” and the “number of fraudulent prac­tices perpetrated by Dr. Lana while he was in the Faculty of Agriculture ……” were never communicated or in any way brought to the notice of the Plaintiff at any time and even if they existed they are extraneous and are not relevant to the appeal which the Plaintiff lodged to the University whilst in the University service.

 

27. By letter dated 27th February, 1981, the University pur­ported to dismiss the Plaintiff from its service with effect from that date in terms of the libelous publication; and the plaintiff contends that both his letter and the publication referred to in paragraph 14 are actuated by malice and extreme bad faith.”

 

From this pleading it is evident that the very fact of the appellants dismissal is only referred to in paragraphs 14 and 27. Paragraph 14 sets out in full the publication – Exhibit A – which contains the libel complained of, and is the first paragraph in support of the claim of libel. No facts are therein urged in support of the second arm of the appellants claim. Apart from the general averment in paragraph 27 and the concluding section setting out the claim. nothing has been stated from which the court has been invited to conclude that the dismissal of the appellant was “actuated by malice, is improper, unlawful ineffectual, null and void” or “actuated by ……… extreme bad faith.” Even paragraphs 25 and 26 which contain bits and pieces of aver­ments which could have been referable to the plaintiffs dismissal being unlawful, are clearly directed to establishing that the libel published of and concerning the appellant was totally unjustified and manifestly malicious.

 

More specifically there is nothing in the pleadings challenging the status and competence of the Staff Disciplinary Committee. Nor were its proceed­ings attacked as being perverse, manifestly malicious and in breach of the rules of natural justice and/or a nullity. Section 9 of the University of Ibadan Act was also not pleaded. Since so little attention was paid to the issue of dis­missal in the pleadings it is not surprising that the reasons for the dismissal were no where stated as not established and/or wrong. Because of these fail­ings in the appellant’s pleadings, it is not surprising that the issue of his dis­missal being “improper …… null and void” was not specifically answered in the Statement of Defence, and issues were not properly joined thereon. I am therefore compelled to arrive at the regrettable conclusion that the plead­ings filed do not support the submissions made on the second issue by appel­lant’s counsel.

 

What is the legal consequence of this? The purpose of pleadings is to inform the parties of the case they will meet at the trial so that they can pre­pare for it vide A.C.B. vs. Agbaniyim 1960 5 F.S.C. 19 and Emegokwue vs. Okadigbo 1973 4 S.C.113(117) where Fatayi-Williams J.S.C. (as he then was) restated the law in these words

“It is trite law, and we have repeated it on many occasions that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reason for this rigid rule of pleading and of evidence has been clearly stated by this court in George and ors v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R.71 at p. 77 as follows:­

 

“The fairness of a trial can be treated by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, con­fine his evidence to those issues: but the cardinal point is the avoidance of surprise.”

 

The effect of evidence given on an issue not pleaded is that such evidence goes to no issue; it is just inadmissible and where it has been wrongly admit­ted it should be disregarded by the trial court and, a fortiori, by the appeal court. As Fatayi-Williams J.S.C. put it in Emegokwu v. Okadigbo (supra) at pages 118 & 119 of the Report:

 

“In National Investment & Properties Co. Ltd. v. Thompson Organization Ltd. & ors (1969) N.M.L.R.99 at page 104. we again observed as follows:­

 

“A plaintiff must call evidence to support his pleadings. and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is, of course, the duty of Counsel to object to inadmissible evi­dence and the duty of the trial court any way to refuse to admit inadmissible evidence. but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”

 

Other views along the same lines were expressed in Idahosa v. Oronsaye (1959) 4 F.S.C.166 at p.171; Bada v. The Chairman L.E.D.B., S.C. 501/65 of 23rd June, 1967; Erinle v. Adelaja, SC.332/1966 of 6th June, 1969; and Chief Sule Jimbo & ors v. Aminu Sanni & ors. SC. 373/67 of 13th March, 1970. Another recent case on the point in Ferdinand George v. The United Bank for Africa Ltd., SC. 209.1971 of 29th September, 1972 reported in (1972) 8/9 S.C.264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba SC.31/70 of 12th February, 1971, where we emphasized the same point as fol­lows:- .

 

“We have pointed out numbers of time that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (see Chief Sule Jimbo & ors v. Aminu Asani & ors SC.373/67 dated the 13th March, 1970). Even when such evi­dence had been wrongly allowed, the trial court should disre­gard it as irrelevant to the issues properly raised by the plead­ings.”

 

On appellant’s reliance on section 9 of the University of Ibadan Act 1962, the law is that a party cannot rely on a statute which he has not specifically pleaded vide Oline vs Obodo 1958 3 F.S.C. 84; Famuyiwa v. Folawiyo 1972 5 S.C. 112.

 

It is equally trite law that a party cannot go outside the case put forward by his pleadings in establishing his case vide Egonu v. Egonu 1978 11/12/S.C. 111(133); Orizu v. Anyaegbunam 1978 5 S. C. 21(33). Had this statute been pleaded there is no doubt that the sixth submission on the second issue and declaration sought in the second arm of the claim would have succeeded.

 

S.9(3) of the University of Ibadan Act provides that:

 

“If it appears to the Council that there are reasons for believing that the Vice Chancellor, the Deputy Vice Chancellor or any other person employed as a member of the staff of the University should be removed from his employment on the ground of mis­conduct or of inability to perform the functions of his office, the Council shall­

 

(a)     give notice of those reasons to the person in question;

 

(b)     afford him an opportunity of making representations in person on the matter to the Council;

 

(c)     if he or any three members of the Council so request within the period of one month beginning with the date of notice, make arrangements –

 

(i)…………………………..

(ii)…………………………..

 

The appellant was a member of staff of the respondent at the time the misconduct” charged arose. From the very commencement of the proceedings against him it was clear to the members of the Staff Disciplinary Committee that one of the possible verdicts that could be handed down against rim was one of dismissal vide Exhibit Y, the letter conveying the decisions if the Committee to him after its first investigation. It was therefore incumbent on the respondent in seeking to dismiss the appellant to give him notice 1f the reasons for seeking to remove him. Does Exhibit X1 a letter dated 151 ‘/80 from the Deputy Registrar (Establishment) requesting urgent explanation on reports received about the publications listed in his curriculum vitae constitute such a notice? The answer must be in the negative. This letter only seeks explanations. It does not give notice of intention to remove the appellant from office. Furthermore, the notice required by section 9 must emanate from Council or be authorized by it.

 

What seems to be envisaged is that after the investigation by any com­mittee or body, it will recommend dismissal/removal to Council, which will then in turn initiate the proceedings for removal. That is not what took place here. The Staff Disciplinary Committee investigated, took a decision in favour of dismissal, recommended same to the Council which accepted and implemented that recommendation without more, by dismissing the appellant – Exhibits A and AA refer. This procedure is obviously contrary to the provisions of section 9 (3) of the University of Ibadan Act set out above. As stated by appellant’s counsel, the Supreme Court has considered this issue in the case of C.I. Olaniyan & 2 ors v. The University of Lagos & Ors 1985 N.W.L.R. 599 and held that dismissal without due compliance with a simi­lar procedure under the University of Lagos Act renders the dismissal null and void.

 

Before I conclude on this second issue I propose to consider some of the submissions of appellant’s counsel, on the assumption (which I do not make) that they are supported by the pleadings filed by the appellant.

 

The first submission attacks the competence of the Staff Disciplinary Committee which considered this matter. The basis of this submission is that the Committee is unknown to the Statute creating the respondent and 1s not one of the accredited Committees and Boards of the university as recorded in Exhibit ZZ26 – the 1980/2 Calendar of the University of Ibadan. It is true that it is not listed as one of the Standing Boards of Committees of either the Council or the Senate, but is it a stranger to the provisions of the University of Ibadan Act? I think not. Section 13 of that Act provides that

(1)     Any body of persons established by this Act shall, without prejudice to the generality of the powers of that body, have power to appoint committees consisting of members of that body and, subject to the provisions of subsection (7) of sec­tion four of this Act, to authorize a committee established by it to exercise, on its behalf, such of its functions as it may determine­

 

(2)     Subject as aforesaid, any two or more such bodies may arrange for the holding of joint meetings of those bodies, for the purpose of considering any matter within the compe­tence of those bodies or any of them, and either of dealing with it or of reporting on it to those bodies or any of them.

 

This section therefore authorizes the Council and/or Senate. as two of the “body of persons” therein envisaged, to appoint committees of its members. In this case the Staff Disciplinary Committee was constituted by Council vide p.5′ of Exhibit ZZ23, paragraph 2 of the points highlighted set out hereinbefore its competence is not affected by the fact that it has represen­tatives of Senate in it (sub-section 2 refers). It therefore has the powers given to it, to wit, to consider, take decisions on matters of discipline of members of the staff of the University, and recommend appropriate discip­linary measures to be carried out either by the Vice-Chancellor and/or the Council. The Committee is therefore competent and has the locus standi and vires to consider the matters relating to the appellant which was passed on to it.

 

With regard to the fifth submission it was further submitted that in respect of such an offence (fraud), the appellant has the fundamental right to be tried “by a court or other tribunal established by law.” Trial by a Com­mittee is therefore an infringement of this – vide section 33 of the 1979 Con­stitution: and the trial should be set aside. Counsel then cited and relied on Dr. O. Sofekun vs. Chief N.O. Akinyemi & ors 1980 5/2 S.C.1. in which the supreme Court held that guilt of a crime should not be tagged on to an indi­vidual without a proper trial in the courts of law. I am afraid this submission is in my view rather misconceived.

 

In the first place, the appellant was at an earlier stage found guilty on ……. Of dishonesty” and later of “academic fraud.” None of these two “offences” constitute a crime under our law. Certainly the appellant himself did not seem to think so. In his written submission when applying for a review (Exhibit ZZ2 refers) he stated that “The act of dishonesty for which I was found guilty does not mean forgery”. Appellant’s counsel has not suggested what crime known to our criminal code was offended. He has merely described it as “fraud, an offence with criminal content”. Since he relied on Dr. Sofekun’s case (supra), he must have imported this concept from pages 2/3 of the report cited, where the Public Service Commission Regulations (of the then Western State) defined “criminal offence” “for the purposes of the Regulations, to mean – any offence involving fraud, dishonesty or other moral turpitude.” This definition was made by the Commission to suit its own purposes, to wit, to enable it investigate offences by officers of the State civil service which have a criminal content even though they may not consti­tute a crime in law. In Sofekun’s case the main offences that were investi­gated were clearly crimes known to our criminal code, to wit, attempted rape and indecent assault. The decision of the Supreme Court that investiga­tion thereof by the Public Service Commission and its decision thereon con­stituted a violation of the fundamental human right of Dr. Sofekun guaran­teed by Section 22 of the 1963 Constitution (in pari materia with the relevant part of section 33 of the 1979 Constitution) must be confined to this. It is not authority for a general statement that any misbehaviour or misconduct which carries a coloring of dishonesty, fraud or moral turpitude, must be tried by the courts of the land even if they do not constitute a crime known to law.

 

To conclude on the submissions of the second issue for determination, I am of the view that having regard to the state of the pleadings. they cannot now be entertained. The evidence on which they are founded go to issue. The dismissal by the trial Judge of the second declaration sought is therefore hereby confirmed but for different reasons.

 

The third and final question for determination is whether the appellant is entitled to damages for libel against the respondent. The libel complained of, as set out in the statement of claim, is the whole of Exhibit A. But both in their briefs and in oral submissions in this court counsel for the parties seemed to have narrowed the libel complained of to the reasons why the appellant was found “guilty” of “academic fraud” and therefore dismissed. The court has been given the impression that it is within those findings that the real sting of the libel lies. The submission of the appellant’s counsel is that the words complained of refers to the appellant and are in their ordinary meaning capable of being defamatory. The learned trial Judge agrees with him on these two points. His statement however that –

 

“In its ordinary meaning, the words are capable of a defamatory meaning if they were falsely and maliciously published.”

 

is not a correct statement of the law of defamation. Words can be capable of a defamatory meaning irrespective of whether they are false, or the publica­tion of them malicious. To put it in another way. the falsity or mode of pub­lication cannot make words which in their ordinary meaning are not defamatory to become so. Having determined that the words are capable of a defamatory meaning, the curt will then proceed to consider whether they are true or false, because if they are true they cannot be defamatory. A plea of justification in such a situation will be a complete answer Assuming that they were falsely published. the question that next arises is the effect of their publication on the person(s) to whom they were published; not whether the words were maliciously published. The question of malice strictly arises when a defence of qualified privilege is raised, where-upon it will be sought to displace it by establishing that the mode of publication showed express malice. Since the defence of qualified privilege was not pleaded it cannot be considered vide Obikoya v. Ezenwa 1973 11 S.C. 135. Malice will therefore only be relevant in a consideration of the measure of damages if any.

 

As to the falsity of the publication, appellant’s counsel repeated his earlier submission that the main item said to constitute academic fraud. the false listing by the appellant of two publications in his curriculum vitae, asset out in Exhibit A. is FALSE. What is set out therein he emphasized is the decision of Council on his appeal for review. Exhibit AC which sought to correct Exhibit A. not only set out a different charge. but was never pub­lished to the persons shown on the distribution list on Exhibit A; and only the Vice-Chancellor and the Public Relations Officer of the respondent appear to have known about it. The difference between Exhibit A which contains the correct charge before the Committee and on which it found appellant guilty and Exhibit AC – which was issued after the Committee’s verdict and after the writ of summons in this case had been issued. is as fol­lows:­

 

Exhibit A – charges appellant with claiming that two of his articles had been published, a claim which he knew to be false.

 

Exhibit AC – charges appellant with falsely stating that his two articles had been accepted for publication.

 

Realizing that there is this difference in the versions, Exhibit A being false and Exhibit AC true. respondent had pleaded in its defence section 11 of the Defamation Law of Oyo State which provides that –

 

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff a defence of jus­tification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiffs reputation, having regard to the truth of the remaining charges.”

 

The learned trial Judge considered this defence and concluded as fol­lows:­

 

“Thus, the question now is whether, having regard to the amount (sic) and seriousness of what has been found to be true, the plain­tiffs reputation is materially affected by the untruth of the rest. If the answer is no, the defence of justification succeeds. In this case, the answer is NO because 1 am satisfied that the plaintiff:­

 

(1)     falsely listed in his Curriculum Vitae submitted for 1979/80 promotion exercise two publications as having been accepted for publication in journal titled “Phytopathology” knowing fully well that the said articles were not published in the said journal:

 

(2)     He attempted to cover up by asking Professor Peterson to help him.”

 

claimed by him. The only reason why the actual damages should rise above the nominal is the excessive publication of the libel as shown by the distribu­tion list on Exhibit A. The Vice-Chancellor in his evidence has testified that it is not the usual practice to give such wide publicity to the dismissal of a staff. There is also the consideration behind this wide publication which has been found to have malicious content to it, i.e. to prevent the appellant from getting another job in another University. Evidence was led to show that as a result of this publication, he failed to secure a job at the University of Sokoto. Taking all these factors into account, I would assess damages pay­able, should libel be deemed proved, at N5,000.00 only.

 

To summarize, this appeal wholly fails and is hereby dismissed. The respondent is entitled to the costs of this appeal which I assess at N300.00 only.

 

OGUNDARE, J.C.A.: I have had the advantage of reading in draft the judgment lust read by my brother, Uche Omo, J.C.A. I fully agree with him that the appeal against the dismissal, by the court below, of appellant’s claims is lacking in merit and is hereby dismissed by me, too. I affirm the decision of the court below and subscribe to the order for costs made in the lead judgment.

 

SULU-GAMBARI, J.C.A.: I entirely agree with the judgment delivered by my learned brother. Uche Omo, J.C.A., a preview of which I have been privileged to read.

 

This appeal therefore fails and it is hereby dismissed. I also subscribe it) the order of costs as assessed by him in the lead judgment.

 

Appeal Dismissed.