➥ CASE SUMMARY OF:
Johnson Oluwole Ayodele v. Lagos State University (NICN/LA/452/2015, May 15 2020)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Sexual harassment;
Disciplinary Committee.
➥ CASE FACT/HISTORY
The case of the claimant on the pleadings is that he is an employee of the defendant at the level of Lecturer II in the department of Sociology by virtue of which he is an academic and senior staff of the defendant. The claimant averred that his employment is regulated by the terms and conditions of employment of senior staff of the defendant. The claimant further averred that his appointment has been confirmed and holds employment till he attains the retirement age. The claimant stated that the Lagos State University Law stipulates that an employee in his category can be removed for good cause by the Council subject to the following procedure: (a) there has been an investigation relating to his case by joint Committee nominated by the Council; (b) the composition of the committee shall comprise of 3 members of Senate and 3 members of the Council, one of which shall be Chairman elected at a meeting of the Joint Committee; (c) the person involved has been duly notified in writing and if he so requests shall be permitted through his chosen representative to appear before the Joint Committee. The claimant stated that the law provides that these provisions shall not prevent the Council from making regulations for the discipline of other categories of staff and workers of the University; and that this is the only procedure permissible for discipline of an academic staff.
The claimant stated that by an internal memorandum dated the 1 of September 2015, the defendant in an attempt at constituting a disciplinary committee to try him sent him an invitation to: “Appear before Panel K of the Senior Staff Disciplinary Committee; Come to O & G Conference Room, Lagos State University College of Medicine, Ikeja, Lagos; Come at 11.00 prompt on Thursday 3 September 2015”. The claimant stated that there was no such committee at the O & G Conference Room. Rather, he was ushered into a classroom to meet Dr. Wright, Dr. Akinbami, Ms. Fagbenro, and Mrs Meruwuma T.A. (referred to as “Dr Wright Committee”). The claimant further stated that they never claimed to be members of the Joint Committee, neither did they purport to have been set up by the Council of the defendant but claimed to be a sub-committee which will report to a larger committee. The claimant stated that he through his counsel raised an objection to the composition and the locus of the Dr. Wright sub-committee, the same not being in consonance with the provision of the Law establishing and guiding the operation of the defendant. The claimant stated that the committee members then took the view that he had chosen not to defend himself before the committee.
The claimant further stated that it was pointed out that the letter of invitation did not notify him as to the nature of the allegation he was to defend himself against, and that he will be prejudiced by a report to the effect that he failed or refused to defend himself. The claimant stated that a letter was written to the Chairman/Secretary of the Dr. Wright committee to produce the report of proceedings of the committee of the 3 of September 2015. The claimant stated that the report of the committee in so far as it purports to have validly invited him to a disciplinary committee meeting to investigate an allegation which the letter of invitation did not disclose is improper, invalid and cannot constitute the basis for a report to the Council to take any action against his continued employment. The claimant further stated that the setting up of Dr. Wright’s committee was an attempt to intimidate and harass him and that the defendant’s resort to unwholesome practices is inconsistent with best international labour practices and is contrary to the provisions of the Law setting up the defendant.
➥ ISSUE(S) & RESOLUTION(S)
[CASE DISMISSED]
↪️ I. Whether the court has jurisdiction to entertain this action?
RESOLUTION: IN CLAIMANT’S FAVOUR.
[THE DEFENDANT DID NOT POINT TO ANY LAW THAT DEPRIVES THIS COURT OF JURISDICTION
‘The defendant has in its pleadings and in final address raised the issue of jurisdiction; specifically that this action is premature as the claimant did not exhaust all the internal remedies under the University rules and regulations before he instituted this action. Learned counsel to the defendant has not referred the Court to the provision in the Lagos State University Law 2015 that provides that staff shall not resort to litigation without first exhausting the internal avenues for settling disputes or seeking redress in the University; neither has the Court been shown the internal grievance procedures the claimant must exhaust. In the absence of this, I hold that this action is not premature and the Court is not deprived of jurisdiction to hear and determine it.’]
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↪️ II. Whether on the pleadings and evidence the claimant ought to be entitled to judgement?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE ALLEGATIONS AGAINST THE CLAIMANT ARE CLEARLY STATED IN THE QUERIES
‘The claimant is seeking an order setting aside the invitation to the disciplinary hearing on the ground that the invitation did not state the allegation against him. The evidence before the Court shows that the disciplinary process against the claimant had commenced in April 2015 with the investigation of the complaint of sexual harassment, the queries issued the claimant on sexual harassment, luring, attempted rape, his replies to the queries; all of which culminated in the invitation to him to appear before the Senior Staff Disciplinary Sub-Committee Panel K. The allegations against the claimant are clearly stated in the queries. There can be no doubt from the totality of the documentary evidence in respect of the disciplinary process that the claimant knew the allegations for which he was invited to the disciplinary meeting was in respect of the complaint of sexual harassment by Kazeem Zainab Adewunmi. There is no evidence the claimant had been queried by the defendant on any other allegation. He therefore had notice of the allegation the against him for which he was invited to the disciplinary meeting in a process that had already commenced. Consequently reliefs (b) and (e) are refused.’
DISCIPLINARY PROCEEDINGS ARE STILL PENDING AGAINST THE CLAIMANT
‘By the provisions of Chapter III C of the Conditions of Service (exhibit C5), the terms of reference of the Senior Staff Disciplinary Committee are: (i) to investigate, consider and determine all disciplinary cases involving all senior members of staff of the University except the Vice Chancellor, the Deputy Vice Chancellors, and other Principal Officers; (iii) to make recommendations to Council on any matter that will be in the interest of the proper discipline of members of staff of the University. Flowing from the terms of reference, the mandate of the Sub-Committee Panel K is to investigate and make recommendations to the larger Senior Staff Disciplinary Committee by way of a report as it cannot carry out any duty outside the main terms of reference. The evidence of the claimant is that he found Panel K was not properly constituted and through his counsel he objected to its composition, the locus of the Sub-Committee, the non disclosure in the letter of invitation of the allegation he was to defend himself against; and he took permission and left. In other words, I find that the claimant elected not to appear or take part in the proceedings. Now, there is no evidence that the claimant challenged or objected to the composition; neither is there any evidence that the claimant wrote to the defendant or to any of its officers stating his objection to the composition of Sub- Committee Panel K. Upon members of Panel K stating to the claimant that they were a Sub-Committee of the larger Senior Staff Disciplinary Committee, its composition cannot be in issue. This is because a Sub-Committee is composed of a few members of a larger Committee and its duty is to carry out its assignment and to report back to the larger Committee; and in this instance the Senior Staff Disciplinary Committee. The invitation from the Secretary clearly states as follows: “I am directed to invite you to appear before Panel “K” of the Senior Staff Disciplinary Committee”. I find that the claimant was invited to appear before a Sub-Committee of the Senior Staff Disciplinary Committee and not the larger Committee; and so he cannot properly challenge the composition of the Sub-Committee as not being in accordance with the Conditions of Servicee. The claimant’s refusal to participate in the proceedings prevented the Sub-Committee from carrying out its assignment. I therefore find that disciplinary proceedings are still pending against the claimant; and I so hold. The restraining and setting aside orders sought in reliefs (c) and (d) must fail. They are refused.’
‘The claimant is seeking a declaration that the decisions reached at the Faculty meeting have overruled the report of the Departmental Investigation Committee that indicted him, and the decision of the Faculty meeting against him is invalid. The Conditions of Service provides in Chapter III (B) that disciplinary action can be taken at Departmental / Faculty Levels by the Heads of Department/Dean/Provost. The complaint of sexual harassment as stated earlier against the claimant is made by a 100 Level female student in the Department of Sociology aged 19 years. One of the findings of the Departmental Investigation Committee is as follows: The role of Assistant Head of Class played by Miss Zainab Adewunmi Kazeem and her closeness to Mr Johnson Ayodele who is the level adviser created fear of reporting his advances. The complainant and the claimant appeared before the investigation Committee. They were interviewed and made written statements. There was also an audio recording of a conversation between the claimant and the complainant that was made available to the Committee in the course of its investigations. The investigation Committee found that the claimant has a case to answer and its report was considered at the Faculty Management Meeting. The decision the claimant complains about that was reached at the Faculty meeting is as follows: The Dean opined that the case as reported by the complainant (KAZEEM Zainab Adewunmi) is more grievious than just sexual harassment; rather it should be better referred to as an act of ‘attempted rape’. The query issued by the Dean (exhibit D9) states: “During its deliberations, the committee noted that the allegation leveled against you were summed up as ‘luring and attempted rape’ of the above-named student as your actions as described by her were beyond sexual harassment.” I find in the written statement of the complainant Kazeem Zainab Adewunmi to the investigation committee (exhibit D6) she stated that the claimant lured her to a Motel where he demanded for sex and rough handled her in the process. I reproduce a portion from her statement to the investigation Committee: He unbuttoned my shirt and I started begging, he didn’t listen. He gave me two options either he have ‘sex’ with me or I go ‘nude’. I tried begged him, he didn’t want to listen he rough handled me. I told him no problem have sex with me No problem but immediately you are done am ‘dead’ then he asked why did I say so, I told him he isn’t my husband and for who ever have sex with me and is not my husband will be cursed. The claimant at paragraph 15 (b) (v) & (vi) of his further statement on oath that he adopted stated as follows: v. I and Miss Kazeem talked in the course of which she convinced me that she had an aversion for sex because she was a virgin. Immediately, I told her to get up and we both left the room and hotel. vi. At Igando bus stop, I gave her the sum of three hundred Naira for Okada and she bade me farewell. It can be clearly seen from the statement of the complainant that what she was subjected to went beyond sexual harassment; and this is corroborated by the claimant’s further statement on oath. I therefore hold that the Faculty Management Meeting held on 15 June 2015 did not overrule the findings in the report of the Departmental Investigation Committee. I also hold that the opinion of the Dean Prof Ayo Omotayo at the meeting that “the case as reported by the complainant Kazeem Zainab Adewunmi should be better referred to as an act of attempted rape” is a valid and honest one. Consequently, the heads of claim (f), (g) (h) and (i) are refused.’
THE CLAIMANT IS NOT ENTITLED TO PROMOTION AS HE IS FACING DISCIPLINARY ACTION
‘The claimant is seeking an order directing the defendant to give due consideration to his applications for promotion and give effect to promotion effective from 2014 till the judgment within the terms and conditions of his services. There is no evidence of the claimant’s application for promotion or the recommendation of his Head of Department for promotion. It is however a fact that there is a pending disciplinary case against the claimant which no doubt is an impediment to promotion. This head of claim therefore fails. The claimant has made a claim for the sum of N50m (Fifty Million Naira) as damages for malice, suppression and oppression in the work place contrary to international best practices. There is no proof of this before the court, neither is there any proof of any other wrongful act of the defendant that entitles the claimant to an award of damages.’]
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✓ DECISION:
‘On the whole, the claimant has failed to prove his case. It lacks merit and is dismissed in its entirety. Costs of N200,000.00 awarded the defendant.’
➥ FURTHER DICTA:
➥ LEAD JUDGEMENT DELIVERED BY:
JUSTICE O.A. Obaseki-Osaghae
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
