The inherent powers of an employer or university to punish a fairly heard employee or student for infamous conduct is hardly ever in contention. However, punishing a student or employee over an act that is not only a misconduct but also a crime under penal laws (hybrid misconduct) has stirred much controversy over the years, hence, this article.
To ease free flow of thought and because expulsion of student and termination of appointments are governed by the same principles of law, henceforth, reference would be made to student only but everything should also be read mutatis mutandis as employer and employee.
THE OLD POSITION OF THE LAW
Based on the old position, when a student is found to be engaged in misconduct of a criminal nature, he must first be prosecuted and convicted by a court before he can be expelled. The case of Garba v Universirty of Maiduguri (1985) 2 NWLR 599 is widely quoted as being the authority for the proposition. In Garba’s case students were expelled from University of Maiduguri over riot, arson and looting. The Supreme Court held that the allegations against the students were breaches of criminal law which the university was not empowered to treat as an internal matter without first subjecting the students to a criminal trial before a court of law. the Court relied on the cases of Denloye v. Medical and Dental Disciplinary Committee (1968) 1 All N.L.R. 306 and Sofekun V. Akinyemi & 3 Ors., (1980) All NLR pg. 153.
The above decisions were followed in the case of Egwu v. University of Port Harcourt (1995) 8 NWLR (Pt.414) 419 at 448, where the Port Harcourt Division of the Court of Appeal stated, per ONALAJA JCA, the position thus:
“Also examination malpractice is a serious criminal charge which can only be tried in a competent criminal court or a tribunal set up under the Constitution. The trial before the panel set up by the respondent with respect lacked the power and jurisdiction to try the appellant, any incompetent trial is a nullity thereby void and of no effect…”
In UniIlorin v. Oluwadare (2003) 3 NWLR (Pt.808) 557, an invigilator caught a student trying to cheat in an examination at University of Ilorin. The student denied the allegation in writing and also appeared before the Disciplinary Committee to defend himself. After the hearing, the Committee arrived at the conclusion that the student was guilty of the allegation made against him. The student filed an action before the Federal High Court, Ilorin Division, seeking an Order for the nullification of his expulsion. After hearing the submissions of counsel on both sides, the learned trial Judge ruled in his favor as follows.
“Though it is not disputed in this case that the allegation of examination malpractice is one of grave misconduct for which the respondents could expel the applicant, what is questioned is the procedure followed in doing this. In the circumstances of this case therefore the Students’ Disciplinary Committee lacked the power and jurisdiction to inquire into the allegation against the applicant. Therefore, the punishment meted out to the applicant cannot stand and is hereby declared null & void.”
UniIlorin appealed to the Court of Appeal but the decision of the trial court was affirmed. Onnoghen JCA (as he then was) held as follows:
“The determination of the guilt, or innocence of any person accused of the commission of a criminal offence is within the exclusive jurisdiction of a court of law constituted in the manner prescribed under the Constitution of the Federal Republic of Nigeria, 1999.”
See also the case of Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675 at 706
THE NEW POSITION
Courts have long departed from the old position. Authorities are now replete that prosecution is no longer a condition precedent for sanctioning a student or an employee over a criminal allegation. The most recent one is KOBI v. USMANU DANFODIYO UNIVERSITY SOKOTO & ORS (2018) LPELR-44665(CA). In this case a student of Usman Danfodio University was caught committing exams malpractice and for that reason was expelled. He challenged the expulsion on the ground that examination malpractice is a criminal offence so the school ought to have reported him to the police first before expulsion. His application was refused and his appeal was also dismissed. The Court held as follows:
“…it is important to state without further ado that over time, the law has been fairly well settled that a University and indeed all academic institutions have the powers to discipline erring students and most importantly in respect of infractions bordering on Examination Malpractices and for such other misconduct, notwithstanding the element of criminality inherent in them.”(Bolded for emphasis)
Long time ago Kayode Eso JSC had this to say in FCSC vs. LAOYE (1989) 2 NWLR (PT. 363) 337:
“I would like to emphasize herein that the decision in GARBA should not be taken as a prohibition of instituting disciplinary measures against civil servants (Students) where there has been a criminal charge or accusation”.
In the case of *UNIVERSITY OF CALABAR vs. UGOCHUKWU and ORS (No. 2) (2007) 17 NWLR (PT. 1063) 248 AT 266-267* my noble Lord, NGWUTA, JCA (as he then was) held the view that an academic institution may discipline a student for infractions to University Rules and Regulations bordering on Examination Malpractices and Cultism, notwithstanding that these infractions also amount to serious criminal offences.
See also the Supreme Court decision in the case of Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 159 where it was held as follows:
“It seems to me preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of the criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrongdoings.”
The Supreme Court restated its position in the case of Eze v Spring Bank Plc (2011) 18 NWLR (PT 1278) 113. Per MOHAMMED, J.S.C. (Pp.25-26, Paras.G-B) held as follows:
“it is no longer the law that where an employee commits acts of gross-misconduct against his employer which acts also disclose criminal offences under any law, the employer has to wait for the out come of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment.”
You can also check out the case of *Zenabor V. Bayero University, Kano (2009) 17 Nwlr (Pt. 1169) 96 C.A and many others
The foregoing decisions constitute proof of a radical change in Nigerian jurisprudence as it relates to labour and education. The courts have even held that it is unnecessary to invite an accused employee or student to a panel hearing. In Olatunbosun v Niser ((1988) 3 NWLR (PART 80) 25 AT 52E-F) the Supreme Court held at page 49B-C that “It will be good and enough if the Appellant was asked to submit a written defence”. In WAEC v MBAMALI (1992) 3 NWLR (Part 230) 481 it was held that Invitation to Disciplinary Committee wasn’t necessary, the statement that the student was made to write at the exams hall after he was caught cheating during the exams was a sufficient fair hearing.
The courts now place emphasis on whether the accused employee or student was given an opportunity to defend himself in the face of the allegation, and whether there was a likelihood of bias or prejudice from any member of the panel constituted to decide his fate.
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