KWARA STATE POLYTECHNIC, ILORIN & ANOR. VS. MR. KAMARU GBADEBO SHITTU (2012)

KWARA STATE POLYTECHNIC, ILORIN & ANOR. VS. MR. KAMARU GBADEBO SHITTU

(2012)LCN/5599(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of September, 2012

CA/IL/70/2010

JUSTICE

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

KWARA STATE POLYTECHNIC, ILORIN & ANOR. Appellant(s)

AND

MR. KAMARU GBADEBO SHITTU Respondent(s)

RATIO

WHETHER OR NOT THE COURT CAN IMPOSE A SERVANT ON AN UNWILLING MASTER

The learned Counsel for the Appellants, R. O. BALOGUN ESQ., has made quite a brilliant arguments on the applicable rules governing the general principles in master/servant relationship, that a master who no longer savours the services of his servant can call it quit, at anytime, and does not even owe the servant any explanation or reason, to dispense with his (servant’s) service, provided he (master) respects the agreed terms of the contract of employment, which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected.
Of course, that is the law, generally, and a plethora of authorities are there to support that position. The simple truth is that even where the master is out rightly mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (and court) can do, in a situation that the service of the servant is no longer required by the master. The court cannot impose or force a servant (however willing) on an unwilling master. See the case of KATTO VS. CBN (1999) 5 SCNJ 1 AND IDONIBOYE-OBU VS. NNPC (2003) 1 SCNJ 87 AT 105, where UWAIFO JSC said:
”No such reason was given in the letter of termination, exhibit H. Under the common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at alt, So long as he acts within the terms of the employment, his motive for doing so is irrelevant.” See also COMM. FOR WORKS BENUE STATE VS. DEVCON LTD (1988) 3 NSLR (PT. 83) 407 AT 423; WESTERN NIGERIA DEV. CORP. VS. ABIMBOLA (1966) 1 ALL NLR 159 AT 160-161; NIGERIA PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) 1 ALL NLR (PT.2) 870 AT 871; CHUKWUMA VS. SHELL PETROLEUM DEV. CO. OF NIGERIA LIMITED (1993) 4 NWLR (PT. 289) 512 AT 538; ADEBAYO vs. D.A.U. THCMB (2009) 9 NWLR (PT. 673) 585 AT 606 – 607 AND MRS. G.O.A. FAKUADE VS. D.A.U. THCMB (1993) 5 NWLR (PT.291) 47 which the Appellants strongly relied on. PER MBABA, J.C.A.

WHETHER OR NOT AN EMPLOYEE ENJYS SPECIAL STATUS WHERE THE EMPLOYMENT HAS A STATUTORY FLAVOUR

ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. O. Bamgbola of Kwara State High Court in suit no. KWS/152/2009, delivered on 16th April 2010, wherein the learned trial Judge granted all the reliefs of the Respondent (who was the claimant at the lower court), and, specifically, ordered that the Respondent be re-instated in his office, with all his rights and privileges, including his salaries and other entitlements, from the date of the purported compulsory retirement, till the date of re-instatement.
In his reliefs, as per the originating summons, the Respondent, had prayed as follow:
(1) “A declaration that the purported compulsory retirement of the claimant, covered by letter dated 18th June, 2009, is ultra vires, unlawful, null and void, having regard to the terms of the claimant’s appointment with the Polytechnic, the Regulations governing conditions of the service for the Polytechnic staff and the provision of the State Polytechnic Law Cap S.12 Laws of Kwara State.
(2) A declaration that the purported compulsory retirement is also unconstitutional, null and void for want of fair hearing and compliance with the laid down statutory procedures for termination of appointment of confirmed staff of the Polytechnic.
(3) An order reinstating the claimant in his office in the 1st Defendant with all his rights and privileges attached thereto and without loss of promotion with effect from the date of the purported compulsory retirement.
(4) An order directing the defendants to pay the claimant all his salaries, emoluments and entitlements from the date of the purported compulsory retirement till the date of reinstatement and thence forth.”
The question for determination was:
“Is the purported compulsory retirement of the claimant, a confirmed academic staff of the Kwara State Polytechnic by the 2nd Defendant as conveyed in the letter dated 18th June 2009, on the alleged premise that his services were no longer required by the Polytechnic, when the claimant has neither attained the retirement age of 60 years nor put in 35 years of service and without any prior accusation of or hearing on allegation of misconduct, not ultra vires, unlawful, unconstitutional, null and void, having regard to the terms of the claimant’s appointment with the Polytechnic, the Regulations Governing Conditions of service, for the Polytechnic staff and the provisions of the State Polytechnic Law, Cap. 12 Laws of Kwara State?”
The learned trial court had resolved all that in favour of the claimant (Respondent) when it held:
“The claimant herein is a confirmed academic staff. He has demonstrated before this court that the letter exhibit KGS6 is to effect his premature retirement from the service of the 1st Defendant and that it was for a cause. By the provision of paragraph 11.14 of the Staff Regulations, the termination of a confirmed staff will usually follow the due processes under the Polytechnic Law. Both learned counsel have agreed in their submissions, that when the matter is to remove a confirmed academic or senior staff of the Polytechnic from office on ground of misconduct or failure to perform the functions of his office, the procedure to follow are laid down under paragraph 11.15.2 (sic) of the Staff Regulations and Section 33 of the Kwara Staff (sic) Polytechnic Law. I must agree with learned Counsel, having read through the provisions in paragraph 11.5.2 of the Regulations and S.33 of the Polytechnic Law, that the Defendants owe the Claimant a duty to afford him a hearing in the circumstances of this case before terminating his appointment through compulsory retirement… In the final result, the court must resolve the question for the determination in this case in the affirmative and, in the favour of the claimant. I hold that the purported retirement of the Claimant from the service of the Defendants (sic) ultra vires, unlawful, unconstitutional, null and void, having regard to the terms of the Claimant’s appointment… I therefore hold that all the reliefs sought for by the Claimant have merit. I enter judgment for the Claimant as per the claims on the originating summons.” (See pages 106 -107 of the Records).
That is the decision which the Appellants appealed against, as per their notice and grounds of appeal filed on 29/10/2010, disclosing 6 grounds of appeal as shown on pages 108 to 114 of the Records.
The appeal was entered on 6/12/2010 when the Records of appeal were transmitted to this court. Appellants filed their Brief of argument on 25/1/2011 and distilled two issues for determination, namely:
1. “Whether the learned trial judge was not wrong by drawing an inference from clear provisions of the Regulations Governing Conditions of service and clear terms of appointment of the Respondent and thereby came to the conclusion that Respondent was terminated for an undisclosed cause and for allegation of misconduct when there was no evidence placed before the trial court to justify the inference and conclusion of the learned trial judge.” (Grounds 1, 2, 3, 5 & 6).
2. “Whether the learned trial judge was right by holding that the letter of retirement ought to be signed personally by the Registrar of the Appellants, when the Respondent was not dismissed from service or retired on allegation of misconduct.” (Ground 4).
On being served with the Appellants’ Brief, the Respondent filed his Respondent’s Brief on 27/2/2012 and the same was deemed duly filed on 18/4/2012, when the application therefore was granted by this court. The Respondent also distilled two issues for determination as follows:
1. “Whether the learned trial judge having evaluated the totality of the evidence adduced, was not right in holding that the Appellants’ compulsory retirement of the Respondent on the basis of an undisclosed cause and/or allegation of misconduct was unlawful, being at variance with the laid down statutory procedure and also void for want of fair hearing?” (Grounds 1, 2, 3, 5 & 6)
2. Whether learned trial judge, having found that the Respondent was compulsorily retired on the basis of an undisclosed cause and/or allegation of misconduct, was not right in holding that the failure of the Registrar of the 1st Appellant to sign exhibit KGS6, personally, was sufficient to vitiate the compulsory retirement of the Respondent? (Ground 4)
Appellants, in their Reply Brief, had quarrelled with the Respondent’s issue 1 for determination, saying the same was not competent, and urged us to strike it out that it does not relate to and or distill from any ground of appeal contained in the notice of appeal filed by the Appellants.
I cannot appreciate the grounds of the Appellants’ complaint in this objection, because the issue 1, distilled by the Respondent, appears to be a summary of what the Appellants also sought to achieve in their issue 1, as it also summarized the grounds 1, 2, 3, 5, and 6, differently, the same being a query – whether the learned trial judge was right to draw an inference from the provisions of the Regulations upon which Appellants premised the compulsory retirements of the Respondent, saying that the same imputed misconduct or inability to perform his (Respondent’s) office and so voided, or annulled the compulsory retirement, for offending the principles of fair hearing, Appellants’ position being that the inference was not justified!
I cannot see how that issue for determination, by the Appellants, is, substantially, different from the Respondent’s, issue 1, which also seeks to know whether the trial judge, having evaluated the totality of the evidence adduced, was not right in making the inference and holding that the compulsory retirement of the Respondent on the basis of an undisclosed misconduct, was unlawful, being at variance with the laid down statutory procedure, and also void for want of fair hearing.
I therefore hold, straight away, that the issue 1, as distilled by the Respondent is in order and that, it is, in fact, another way of expressing the same worry or concern of the Appellants in the appeal.
This appeal was heard on 28/6/2012 when counsel on both sides adopted their briefs and urged us accordingly.
A brief fact of the case shows that the Respondent was a staff of the 1st Appellant, governed by the 2nd Appellant. The Respondent, was forcefully, retired from service by a letter (Exhibits KGS6), which premised the retirement under chapter 15(2) (e) and (f) of the Regulations Governing Conditions of Service of the Appellants. After hearing the originating summons, challenging the compulsory retirement when the Respondent had not been prior accused of any misconduct and when he was yet to be due for retirement, the learned trial judge inferred imputation of misconduct by Appellants’ reference to paragraph 15.2(e) (f) of the Regulations Governing Conditions of Service for the staff of the 1st Appellant, to retire the Respondent, compulsorily, and so voided the said retirement, as the required legal procedures were not followed to attain it.
Arguing the Appeal, learned counsel for the Appellants, R. O. Balogun Esq., (who settled the Brief), said that the determination of the issue 1 rests squarely on our interpretation/construction of the terms and conditions governing the employment of the Respondent, vis-a-vis the affidavit evidence placed before the trial court, which revealed the circumstances surrounding the compulsory retirement of the Respondent, and whether the same was wrongful. Counsel went into an exposition of what, in his view, were the contract documents, which contained the terms and conditions of employment of the Respondent, namely his letter of employment, the Regulation Governing Conditions of Service (revised in (2007) and the State Polytechnic Law, Cap. 12, Laws of Kwara State.
He referred us to clause three (3) in the letter of employment, which said:
“The appointment will commence from the date you assume duty and will be for a period of two years in the first instance, subject to extension for specific period or confirmation to a refining age of 60 years at the discretion of the council. It may however be terminated with 3 months notice by either the college or yourself on payment of three months’ salary in lieu of notice by either party. In the case of academic staff, the notice of termination must expire with the end of academic session.”
Counsel also referred us to the clause 4(f), which relates to:
“Other conditions which may from time to time be approved by the council as contained in the Regulations Governing conditions of service of senior staff of the college”
He added that clause 5 gave the employee the option to accept or reject the appointment, on studying the conditions in clause 3 and 4(f). Counsel also referred us to the Regulations Governing Conditions of Service, chapters 1.4(f), 1.14, 2.13, 2.13(a), 2.12(a) and (b). Counsel argued that, though chapter 2.12(a) and (b) of the Regulations Governing Conditions of Service stipulated that an appointment shall commence from the date a member assumes duty (and if confirmed a tenure of appointment shall continue until the retiring age of 60 years or 35 years of service – whichever comes first), chapter 2.13 of the Regulations (supra) supersedes chapter 2.12, that Chapter 2.13(a) says:
“The appointment of a confirmed member of senior staff may be terminated with three months notice by either the Polytechnic or the staff or payment of three months’ salary in lieu notice by either party.”
Counsel said that the implication of this is that, though the appointment has been confirmed, up to retiring age, it can still be terminated before the retiring age. He referred us to chapter 11.1 of the Regulations (supra), which defines misconduct as:
“… a specific act of wrong doing. It includes but not limited to drunkenness, foul language, and insubordination, negligence of duty, engaging in trade or business without permission.”
Counsel said that by use of the words “specific acts of wrong doing”, no room is made for inference or conjecture on what misconduct could be. He then referred us to chapter 11.5.2 of the Regulations (supra) relating to removal of any confirmed staff from office on account/grounds of misconduct or inability to perform the functions of his office or employment; that in such a situation, the Council of the Polytechnic shall:
a. Give notice to the person concerned, specifying reasons thereof
b. Make arrangements for an investigating committee to investigate and report on the matter.
c. Afford the person concerned an opportunity of making representation in person in the matter before the investigating committee.
If council is satisfied that the person concerned should be removed, the council may so remove him by an instrument in writing signed by the Registrar on the directive of the council…
Counsel also referred to other provisions of the Regulations (supra) dealing with retirements and benefits of staff and then related the letter of retirement of the Respondent with the terms governing his employment, with a view to showing that his retirement accorded with the law governing his appointment.
Counsel submitted that Exhibit KGS6 which compulsorily retired the Respondent, relieved him of his appointment in accordance with the provisions of chapter 2.13(a) of the Regulations (supra), or one hand and the clear provisions of the letter of appointment on the other hand; that the same empowered either party to terminate the employment. Counsel reproduced the content of the letter of compulsory retirement and said that, from the content of the letter, there was no disputing the fact that the Appellants merely exercised their power/rights in the provisions of chapter 2.13(a) and 15.2(e) and (f) of the Regulations Governing Conditions of Service, and the clear terms that either party could terminate the contract of employment, by giving 3 months salary, in lieu of notice.
Counsel submitted that the parties were ad idem, that the terms governing the conditions of service are set out in the letter of appointment (Exhibit KGS1), the Regulations (supra) and section 33 of the Statepolytechnic Law; but that the pertinent and salient question was on the status of the employment of the Respondent with the Appellants. He admitted that the employment of the Respondent was one with statutory flavour on one hand, but also a mere master/servant relationship on the other hand. In other word, he said that the employment was clothed with statutory flavour, only to the extent that the Respondent could be removed from office on allegation of misconduct, in which case section 33 of the State Polytechnic Law would be adhered to, strictly; that all other terms governing the conditions of service are contained in the letter of appointment and Regulations Governing conditions of service, which the Respondent agreed to.
Counsel asserted that the terms of the employment of the Respondent have shown beyond peradventure that, aside from the removal on allegation of misconduct, which will make the provisions of section 33 of the State Polytechnic Law applicable, it is the clear terms of the employment embodied in the letter of appointment and Regulations (supra) that regulate the employment of the Respondent; that it will therefore be wrong to assert, in the general terms, that the appointment of the Respondent has statutory flavour.
Counsel felt fortified by the fact that the Regulations Governing Conditions of Service was not made by the Kwara State House of Assembly, as a schedule to the State Polytechnic Law or as a subsidiary legislation. He argued that mere fact that section 31 of the State Polytechnic Law empowers the second appellant to determine conditions of service of members of staff of the first appellant does not imbue such conditions of service with the nomenclature or status of statutory regulation.
He relied on the case of Idoniboye-obu vs. NNPC (2003) 1 SCNJ 87 at 101 and said that section 4(1) of the NNPC Act, to which that case related is not dissimilar to section 31 of the State Polytechnic Law, under consideration. Thus, that the inescapable conclusion to be, drawn is that the Regulations Governing Conditions of Service of the Respondent herein is not statutory regulations and it is not also given any statutory authentication.
Counsel urged us to hold, in the light of the above case, that the employment of the Respondent can only enjoy statutory flavour in so far as to the extent that he cannot be removed or dismissed from the service of the Appellants, or his appointment terminated on the ground of misconduct, failure or inability to perform functions of his office or employment, without following the procedure laid down under section 33 of the State Polytechnic Law.
Counsel further submitted that having demonstrated from the letter of retirement and paragraphs 12 and 16 of the counter affidavit by the Registrar of the first appellant that the Respondent was not terminated for misconduct, the question whether the trial court would be right by drawing inference from the provisions section 15.2 (e) and (f) of the Regulations (supra) that the Respondent was terminated on the ground of misconduct, should be answered in the negative. He also referred to paragraphs 9 and 10 of the Respondent’s affidavit, which he said is admission against interest that the Respondent was not terminated on allegation of misconduct.
Counsel urged us to give effect to the provision of paragraph 2.13 of chapter 2 and paragraph 15.2(e) and (f) of chapter 15 of the Regulations Governing Conditions of Service of staff of the first Appellant; that the same are very clear and unambiguous and admit of no interpretation. He relied on the case of UBN Ltd vs SAX (Nig) Ltd (1994) 8 NWLR (Pt.361) 150 at 165, to the effect that:
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. The general rule is that when the words of any instrument are free from ambiguity in themselves, such should be construed according to the strict, plain and common meaning of the words themselves.”
Counsel also relied on NNB Plc vs OSOH (2001) 13 NWLR (Pt.729) 232 at 252. He submitted that the contract documents being the letter of appointment and the staff Regulations and, in appropriate case, the Polytechnic Law, therefore the court will not go outside them to determine the rights of the parties. He relied on the case of Katto vs CBN (1999) 5 SCNJ 1 at 12, and said that the case of the Respondent is liable to be dismissed, as the compulsory retirement does not offend the provisions of the Polytechnic Law and the terms of employment as contained in the letter of appointment and staff Regulations.
Counsel submitted that, having regard to the conclusion of learned trial judge, it becomes pertinent to bring to the fore the distinction and/or dichotomy between termination of employment, pursuant to chapter 2.13 (a) of the staff regulations and removal, pursuant to section 33 of the polytechnic Law and chapter 11.5.2 of the Regulations.
He attempted to explain the distinction, saying that by the tenor of the provision of paragraph 2.13 (a) either party to the contract of employment can end the contract by giving appropriate notice or payment of salary in lieu of notice simplicita, while termination and/or removal of a confirmed staff under section 33 (1) of the Polytechnic Law, on allegation of misconduct cannot be valid, without strict adherence to that provision, that from the provisions of section 33(1) of the State Polytechnic Law, it appears that termination of appointment under chapter 2.13(a) of the staff regulations is totally different and cannot be akin to removal or discipline of erring staff under section 33 (1) of the State Polytechnic Law and chapters 11.5.2 (a) – (c) of the Regulations Governing Conditions of Service.
Thus, while either party can take action under paragraph 2.13 (a), only the appellants can act under section 33 (1) of the State Polytechnic Law and chapter 11.5.2(a) of the staff Regulations, to remove and/or discipline any of its confirmed academic staff for misconduct, or failure or inability to perform functions of his office or employment; that the Appellants were empowered by law, to either terminate the employment of the Respondent, simplicita or removed and/or disciplined him under section 33(1) of the State Polytechnic Law; that Appellants deserve the right to apply and/or invoke the appropriate mode of termination or retirement, having regard to the peculiar circumstances of the case; that section 33(1) of the State Polytechnic Law and chapter 11.52.and 11.13 of the staff regulations are not applicable to this case.
He referred us to the letter of compulsory retirement of the Respondent (EXHIBIT KGS6) to show that the termination of appointment or retirement of the Respondent was not predicated on misconduct and/or failure or inability to perform the functions of his office or employment, and maintained that the trial judge was wrong to infer that provision in the case; that the inference drawn by mere reference to chapter 15.2(e) (f) in the letter of retirement cannot be supported by evidence, in the light of the very clear and unambiguous provision of the chapter 5.2 (e) and (f), to which nothing else can be read into.
Counsel relied on the two reasons mentioned for the retirement of staff members under chapter 15.2. (e) and (f), namely:
(a)In the public interest and
(b)For the purpose of facilitating improvements in the organization of the Polytechnic so that greater efficiency may be effected.
Counsel then submitted that the Respondent’s retirement could therefore be seen to have been made, because;
(a) In the Public interest and
(b) In the public interest
(c) To facilitate improvements in the organization of the Polytechnic
That those grounds specified in the letter were quite distinct from the reasons for removal from office under chapter 11.5.2 of the Regulations (supra) and section 33 of the State Polytechnic Law, which specify misconduct and inability to perform the functions of office or employment as grounds for removal of staff; that these two grounds are at variance with the reasons for termination or retirement specified under chapter 2.13(a) and 15.2(e) and (f) of the Regulations (supra).
Counsel tried to show that chapter 11 (eleven) of the Regulations Governing Conditions of Service deals with the discipline just as section 33(1) of the State Polytechnic Law, while chapter 2.13(a) and 15.2 (e) and (f) of the staff Regulations (supra) deal with terminationand retirement, respectively which are devoid of any disciplinary measures or misconduct. He argued that reference to chapter 15.2 (e) and (f) of the Regulations (supra) in the letters of retirement was of no moment, as the retirement will still be valid on the ground that his services were no longer required and with the payment of the 3 month salary in lieu of notice; that assuming, (without conceding), that the inference of misconduct drawn by the lower court from chapter 15.2 (e) and (f) referred in the letter of retirement, was anything to go by, then the termination and/or retirement on the ground that his services were no longer required cannot be impuned, since the reasons for retirement in the letter are disjunctive.
Counsel also submitted that having regard to the decisions of the Supreme Court on the status of the Regulations Governing Conditions of Service, which is a mere contractual document, without any force of law, then no heavy weather could be made on the reference to the provisions of chapter 15.2 (e) and (f), as the parties agreed to be bound by the terms governing their appointment.
Counsel reproduced paragraphs 11, 12, and 14 of the Appellants’ counter affidavit to the originating summons to argue that the Respondent did not deny that his retirement was in accordance, with the terms governing his appointment and that no allegation of misconduct or failure and/or inability to perform his duties and responsibilities as academic staff was raised against him. He submitted that failure to counter or challenge salient or material deposition, in an affidavit, is tantamount to an admission of the facts not controverted. He relied on the case of UNIBIZ Ltd CBN (2005) 14 NWLR (Pt. 944) 45 at 59; NIG NAVY vs GARRICK (2006) All FWLR (Pt. 315) 45 at 78 – 79; Nwosu vs imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 686; SOY Agencies vs Metalum Ltd (1991) 3 NWLR (Pt. 177) 35; A.G. Ondo State A.G. Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 749.
Counsel submitted that the proper and only viable conclusion that ought to be drawn by the court is that, the fact deposed to by the Registrar of the 1st Appellant in the counter affidavit, to the effect that the Respondent was not retired on any allegation of misconduct or failure to discharge his responsibilities or office, remained unchallenged and uncontroverted; that the trial judge was wrong by the inference, relying on the submission of the counsel for the Respondent to inpute misconduct. He relied on the case of Bassil vs. Fajebe (2001) 4 SCNJ 257 at 279 to the effect that;
‘it must be said that public confidence in the judicial process will be severely eroded if trial courts ignore or show scant regard to vital evidence which is unanswerable and proceed to make findings and givejudgment which fly in the face of obvious fact.’
Counsel submitted that the submission of counsel is not substitute for evidence and that in interpreting the Regulations Governing Conditions for Service, like statute, the court is not permitted to read into its words which are excluded, expressly or by necessary implication, from the regulations. He relied on the case of Katto ys. CBN (supra).
Counsel repeated that the court cannot make reference to the provisions of section 33 of the State Polytechnic Law, when construing or interpreting the provisions of chapters 15.2(e) and (f) of the Regulations Governing Conditions of Service. Thus the imputation of misconduct by the trial court and making reference to section 33 of the State Polytechnic Law cannot be valid in law.
Counsel also relied on the case of Idoniboye-Obu vs. NNPC (supra) to the effect that, ‘Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment. His motive for doing so is irrelevant.’ See also Commissioner for Works Benue State vs. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407 at 423; Adebayo vs. O.A.U.T.H.C.M.B. (2009) 9 NWLR (Pt. 673) 585 at 606-607; and Mrs C.O.A. Falcuade vs. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47 where the Supreme Court hold;
‘In determining dispute arising from the determination of a contract of employment, the court must confine itself to the plain words and meaning which can be derived from the terms of the contract of service between the parties, which provides for their rights and obligation. In this case it is the relevant conditions stated in the appellant’s letter of appointment and the staff regulations and conditions of service that must be construed and nothing else.’
He argued that the fact that the Respondent’s employer is a statutory body does not mean that the Conditions of Service of its employee must be of a special character thereby ruling out the relationship of mere master and servant.
Counsel again queried if the regulations governing conditions of service revised in 2007 qualified as a subsidiary legislation, which has the force of law. He had earlier answered this in the negative, but added that if we hold in the affirmative, that the position of the appellant is not affected thereby, that the effect is that the provision of chapter 15.2 (e) and (f) has the force of law and the court must give effect to it. He again relied on the case of Nyme vs. FRN (2010) 3 (Pt.1) MJSC 34 at 70 on the interpretation of the provision of a statute and on PHMB vs. Ejitagha (2000) 11 NWLR (Pt. 677) 154, where the Supreme Court held;
‘I think the legal faux pas must be corrected at once. To force a public servant to retirement, that is, before he gets to his retirement age is an unusual action against him in his career. Such a variety of reasons including ill-health, redundancy, re-organization, retrenchment, unproductivity etc or even contractual or regulatory power conferred on and exercised by the employer’
Counsel submitted that a cursory rook at the letter of retirement of Respondent reveals that his retirement can be validly hinged on re-organization, on contractual agreement, as contained in the terms of appointment set out in the letter of appointment or even predicated on the terms set out in the Regulations Governing Conditions of Service referred in the retirement letter; that the judge’s inference or importing of misconduct from the provisions of the Regulations has no place in our law; that assuming (without conceding) that the trial judge considered the provision of chapter 15.2(e) and (f) of the Regulations Governing Conditions of Service as harsh, hence, her inference of misconduct from the provision, that the court stiff has no alternative than to give effect to the dictate and tenor of that provision, because its intentment or purport is very clear.
Finally, Counsel said that the cases of Olaniyan vs. University of Lagos (1985) NWLR (Pt.9) 599; Oloruntoba Oju vs. Abdul-Raheem (2009) ALL FWLR (Pt. 497) 1 and Olufeagba vs. Abdul-Raheem (2009) MJSC (Pt. 1) 164; KWARA POLYTECHNIC, ILORIN VS. OYEBANJI (2008) ALL FWLR (PT 447) 141 could not help the respondent.
Counsel concluded that the learned trial judge merely speculated and based his judgment on mere conjecture and imputed misconduct from the mere fact that the Appellants herein referred to chapter 15.2 (e) and (f) of the Regulations Governing Conditions of Service in the letter of retirement, when there was no evidence to establish or justify that conclusion.
He urged us to resolve the issue in favour of the Appellants and allow the appeal.
In his reply, as per the Respondent’s brief, his counsel, Y.A. Alajo Esq (who settled the brief) said that the Appellants were confused on the nature of the contract of employment of the Respondent in the circumstances of the case. The Respondent agreed that the contract documents, which governed the employment, were the letter of appointment, Regulations Governing Conditions of Service for both senior and junior staff and the State Polytechnic Law, Cap 512, Law of Kwara State.
Counsel argued that the Appellants were approbating and reprobating, at the same time, when they admitted that the employment of the Respondent had statutory flavour, while also denying it. Respondent’s Counsel relied on the case of Kwara State Polytechnic vs. Oyebanji (2005) ALL FWLR (Pt. 447) 141 at 203. He added that the Appellants had never disputed the employment status of the Respondent at the lower court and are so stopped from canvassing a new line of argument, by saying that the employment is that of a master/servant relationship while also enjoying statutory flavour, at the same time. He submitted that neither logic nor equity can accommodate that posture, and relied on the case of Amadi vs. Ajibola (2004) 16 NWLR (Pt. 898) 91 at 195.
Counsel said there is a plethora of judicial authorities which have been firm on the nature and meaning of employment with statutory flavour and relied on the case of Osumah vs Edo Broadcasting Service (2005) All FWLR (Pt 253) 773 at 787 where this court held;
‘An employment with statutory flavour is one governed by statute wherein the procedure for employment and dismissal of an employee are clearly spelt out. In such a situation, the employment cannot be terminated other than in the way and manner prescribed by that statute, and any other manner of termination inconsistent with the statute is null and void and of no effect.’
Counsel also relied .on the case of Oloruntoba-oju vs. Abdul-Raheem (2009) All FWLR (Pt. 497) 1 at 42, where the Supreme Court held;
‘By virtue of the forgoing document, the appellant claimed that the employment are protected by statute and that they, therefore, enjoy special legal status over and above ordinary common law master and servant relationship. I must express that where the terms and conditions of a contract of employment or service are specifically provide for by statute or regulations made there under: it is said to be a contract protected by statute or, in other words, an employment with statutory flavour; Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt.9) 599; Eperokun vs University of Lagos (1986) 4 NWLR (Pt. 34) 163; Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt. 6221 290, (2001) FLWR (Pt. 32) 12; U.M.T.H.M.B. Vs Dawa (2007) 16 NWLR (Pt 739); Shitta-bey vs. FPSC (1981) 1 SC 40; UNTHMB vs. Nnoli (1994) 8 NWLR (Pt. 363) 376 (underlining by counsel).
Counsel said that the above puts paid to the nature and meaning of an employment with statutory flavour; that in the instant case, it accords with good reasoning to posit that the Respondent’s employment was spiced with statutory flavour and so is beyond disputation that the status of his employment supersedes that of master/servant relationship. Counsel relied the case of University of Ilorin vs Abe (2003) FWLR (Pt. 164) 267 at 278 (per Amaizu JCA);
“It is now firmly established by a long line of decided cases by the apex court that when an office or employment has statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made thereunder, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, service with a statutory flavor is to adhere strictly to the procedure laid down in the statute or the regulation made there under.’
On this footing, Counsel submitted that the judgment of the trial court cannot be faulted as the scenerio painted in this case shows beyond peradventure that the re-instatement of the respondent was justified, having regard to the fact that he had neither attained the year of retirement, nor spent 35 years in the service. He relied on the case of UNTH Management Board and Anor. Vs. Nnoli (1994) 10 SCNJ 71.
Counsel submitted that Appellants never controverted the fact of the premature retirement; that Appellants simply said the Respondent was retired because his services were no longer needed. He submitted that the forceful retirement breached the provisions of section 33 (1) of the Kwara State Polytechnic Law, which provides that an academic or senior staff of the 1st Appellant, like the Respondent, can only be removed on two grounds, namely, ground of misconduct and of inability to perform functions of his office. And under that provision and the provision of Regulation 11.5.2 (a-c) of the staff Regulation, the procedure to be complied with for removal of the Respondent has been spelt out; that rather than comply with the required procedure, the Appellants resorted to big grammar and embarking on a voyage of advocating alien principles of law.
Counsel submitted that by adopting the contradicting pictures of the contract of employment enjoying statutory flavour and of being one of master/servant relationship, at the same time, Appellants are trying to create a new category of employment, which is strange to the law.
Counsel further submitted that Appellants made serious ‘hullabaloo’ to the effect that the statutory procedure for termination of the Respondent cannot be followed, because he was not removed as a result of misconduct, but because his services were no longer required. He submitted that Appellants had conceded that section 33 of the State Polytechnic Law must be complied with, if there is an allegation of misconduct, and added that the peculiar facts of this case show that the Respondent was forcefully retired on the ground of misconduct. He relied on Exhibit KGS6, which shows that the Respondent’s employment was discussed at the 158th Regular Meeting of the Council of the 1st Appellant, held on 9/6/2009, when the decision to retire him compulsorily, was reached and taken. He said that there was nothing to show that the Respondent was part of that meeting, when the alleged “crucial issues”, pertaining to him, were deliberated upon, which affected his employment.
Thus, the Respondent was not given the benefit of even knowing what he had done wrong to deserve the punishment of being retired, prematurely. To lend credence to the above position, Counsel said the Registrar of the 1st Appellant had deposed to an affidavit to the effect that the Respondent was among some members of staff that were to be compulsorily retired to facilitate improvement in the organization and to achieve greater efficiency, and in the overriding public interest – See paragraphs 11 to 13 of the counter affidavit against the originating summons, pages 28 – 29 of the Records.
Counsel submitted that to every discerning mind, what is to be distilled from the above picture is that the continued stay of the Respondent in the employment was an impediment to the facilitation of improvement of the 1st Appellant and a threat to the overriding public interest; that that point of “public interest”, also raises the question of public morality against him, as it implied that his continued employment offended the sensibilities of the public. Thus, the irresistible logical deduction would be that the Respondent was retired, forcefully, on grounds of an undisclosed misconduct or inability to perform functions of his office. But he was not given any notice of same or opportunity to be heard on the same.
Counsel added that the reasons proffered in the letter of retirement (Exhibit KGS6) as well as the depositions in paragraphs 11 to 13 of the counter affidavit show beyond peradventure that misconduct or inability to perform the functions of office can be inferred and that the court was empowered to do so. He relied on the case of Edokpolor vs. Ohenhen (1994) 7 NWLR (Pt. 358) 511 at 529 – a court will presume the existence of one fact from the existence of proved facts where such a presumption or inference is irresistible or where there is no other reasonable presumption or inference which fits all the facts. He also relied on Igali Vs. Lawson (2005) ALL FWLR (PT.) 563 to 573, where it was held:
“In arriving at a decision a court of law is at liberty to draw inferences from established facts and to determine the matter according to the justice of the situation”
Counsel said that the Appellants acted clandestinely by, surreptitiously, retiring the Respondent on the basis of misconduct or inability to perform the functions of his office, for which notice was not given to him; that Appellants’ failure to comply with the procedure, enshrined in section 33 of the Kwara State Polytechnic Law and paragraph 11.5.2 of the Regulations makes the compulsory retirement unlawful, null and void and of no effect whatsoever; that on this basis the decision of the trial court should be upheld. He relied on the case of Kwara Polytechnic Ilorin Vs. Oyebanji (supra) (Per Agube JCA) Olaniyan Vs. Unilag (Supra): Osumah Vs. Edo Broadcasting Service (Supra).
Counsel submitted that the touchstone for determining the observance of fair hearing is not only about justice, but whether an opportunity of hearing was afforded the parties to be heard; that in the instant case it is glaring to any rational mind that the Appellants had deliberately failed to give notice to the Respondent of the concealed misconducts or inability to perform the functions of his office which could justify Appellants to hide under the cloak of saying that “his services are no longer required” to retire the Respondent, compulsorily. Put differently, Counsel said that the failure to give reasons why Respondent’s employment was terminated, prematurely, in the Letter of retirement was a ploy by the Appellants to use the tenuous provision of paragraph 2.13(a) of the Regulations, to undermine the statutory procedure, enshrined in the law, for removal of a confirmed staff; that such cannot stand in the face of the holdings by Oputa JSC and Karibi-Whyte JSC, in Olaniyan Vs. UNILAG (supra) who remarked, respectively, as follows:
“Properly considered, the question whether one contracting party can terminate a contract by giving notice or paying salary in lieu of notice is a non-issue in this case. The issue is or should be once there was a finding that the Appellants were being removed on the grounds of misconduct; how were they to be removed?…”
“In public employment, where the employee is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should, in the interest of justice, be presumption that the employment cannot be terminated by mere notice, but should be terminable only for misconduct or other specified reasons… It cannot be within the contemplation of Appellants who have a permanent and pensionable employment that the Respondent can have power to terminate their employment without cause. ”
Counsel further argued that, even if the Appellants now hold the view that the compulsory retirement of the Respondent was not founded on misconduct, that it was too late in the day to cry, because the circumstances of the case show that the Appellants were not fair in their dealings with the Respondent; that the dictate of natural justice and even administrative procedures required transparent measures, as are necessary to ensure fairness and justice to have been adopted. Counsel relied on the case of ADENIYI VS YABA College of Technology (1993) 7 SCNJ 304 at 382-383.
Counsel urged us to resolve the issue against the Appellants and dismiss the Appeal, adding that the attempt by the Appellants’ Counsel to construe chapter 2.12(a) of the Regulations Governing Conditions of Service of the Appellants in isolation of the law establishing the 1st Appellant, so as to escape the duty and procedure enshrined in the law for removing erring staff, cannot avail the Appellants; that the documents and provisions of the law and the Regulations require a community reading to arrive at a just conclusion. He relied on the case of KUPOLATI VS. OKE (2009) ALL FWLR (PT.486) 1992; PPA VS. SARAKI (2007) NWLR (PT.1064) 453 AT 511 – 512; BUHARI VS. OBASANJO (2005) FWLR (PT.273) 1 AT 215 (Per Akintan JSC).
RESOLUTION OF ISSUE:
The issues, as distilled by Learned Counsel on both sides, are the same, except for semantics, which should be expected. I shall, however, adopt the issues by the Appellants, in considering this appeal.
In the case of Kwara State Polytechnic & Ano. Vs. Mr. Jimoh Dipo Saliu and Anor., (an unreported decision of this court in CA/IL/93/2010), delivered on 2/7/2012, which I had the privilege of writing the lead judgment, I had the opportunity to consider the same issue as the Issue one in this appeal. In fact, the two cases are on all fours. I hereby adopt the whole of my reasonings and conclusions on that issue, in that judgment and apply same to this appeal.
The learned Counsel for the Appellants, R. O. BALOGUN ESQ., has made quite a brilliant arguments on the applicable rules governing the general principles in master/servant relationship, that a master who no longer savours the services of his servant can call it quit, at anytime, and does not even owe the servant any explanation or reason, to dispense with his (servant’s) service, provided he (master) respects the agreed terms of the contract of employment, which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected.
Of course, that is the law, generally, and a plethora of authorities are there to support that position. The simple truth is that even where the master is out rightly mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (and court) can do, in a situation that the service of the servant is no longer required by the master. The court cannot impose or force a servant (however willing) on an unwilling master. See the case of KATTO VS. CBN (1999) 5 SCNJ 1 AND IDONIBOYE-OBU VS. NNPC (2003) 1 SCNJ 87 AT 105, where UWAIFO JSC said:
”No such reason was given in the letter of termination, exhibit H. Under the common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at alt, So long as he acts within the terms of the employment, his motive for doing so is irrelevant.” See also COMM. FOR WORKS BENUE STATE VS. DEVCON LTD (1988) 3 NSLR (PT. 83) 407 AT 423; WESTERN NIGERIA DEV. CORP. VS. ABIMBOLA (1966) 1 ALL NLR 159 AT 160-161; NIGERIA PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) 1 ALL NLR (PT.2) 870 AT 871; CHUKWUMA VS. SHELL PETROLEUM DEV. CO. OF NIGERIA LIMITED (1993) 4 NWLR (PT. 289) 512 AT 538; ADEBAYO vs. D.A.U. THCMB (2009) 9 NWLR (PT. 673) 585 AT 606 – 607 AND MRS. G.O.A. FAKUADE VS. D.A.U. THCMB (1993) 5 NWLR (PT.291) 47 which the Appellants strongly relied on.

The above principle, of course, cannot, strictly, hold in employments with statutory flavour, that is, employment governed by statute wherein the procedures for employment and dismissal of employees are clearly spelt out and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void. See Osumah vs. Edo Broadcasting Service (supra); Oloruntoba-Oju Vs. Abdul-Raheem (supra). Such is usually applicable in a contract of employment, under the public and/or Civil Service of the Federation, State, Local Government and parastatals, as well as institutions and agencies of government. The 1st Appellant is an institution owned by Government of Kwara State and established by statute, while the 2nd Appellant is its (1st Appellant’s) governing Council for the running and operation of the Institution – 1st Appellant.
The law, Kwara State Polytechnic Law, Cap S.12, Laws of Kwara State, has made adequate provisions for the functioning of the Institution, including matters bordering on appointment, welfare and discipline of the staff-workers at the institution. Being a creation of statute, the rights, fortunes and protection of its workers/staff certainly go beyond what obtains under the master/servant relationship, under the common law. And that should be so, because interest/ownership of the 1st Appellant, as a public institution, goes beyond the private whims and caprices of any private individual, including even of the Governor of the State and any person, saddled with the management or running of the Institution, as the operation and actions of the Institution are regulated and governed by known and specified rules/law, stipulated in the statute and/or authorized by it, including issues of welfare and discipline of staff members.

The case of UNIVERSITY OF ILORIN VS. ABE (2003) FWLR (PT.164) 267 at 278, PER AMAIZU JCA is very instructive on this:
“It is now firmly established by a long line of decided cases by the apex court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with, strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or the regulation made there under.”
Parties, on both sides, have agreed as to the documents that must be pleaded and relied upon by them, to establish their respective interests, canvassed in this appeal. The documents are:
1) the letter of appointments of the Respondent,
2) the Kwara State Polytechnic Law,
3) the Regulations Governing Conditions of Service of the staff,
4) as well as the letter of compulsory retirement of the Respondent.
Appellant’s Counsel, as earlier observed in this judgment, has made very rich and insightful submissions, relating the said documents to this appeal and the application of each, especially the appointment letter, Regulations (supra) and the State Polytechnic Law, to the letter of compulsory retirement of the Respondent, which also terminated his service. But in doing so, Appellants’ Counsel appeared to have laboured, strenuously, to distinguish between the Regulations Governing Conditions of Service of the staff and the State Polytechnic Law, in a manner that tended to show them as separate instruments, in conflict and in struggle as to which one governed or should govern the compulsory retirement of the Respondent. Even within the Regulations (supra). Learned Counsel also tried to differentiate the interpretational roles, and application of chapter 11.5.2 of the Regulations to chapter 2.13(a) of the Regulations, as opposed to chapter (paragraph) 15.2 (e) and (f) of the same Regulations, referred in the retirement letter, to justify the compulsory retirement.
Counsel also laboured to show that the said compulsory retirement was governed by chapter 2.13(a) of the Regulations (supra) and not by section 33(1) of the State Polytechnic Law, and so the master/servant relationship principles played a major role in the regulation of the termination of the Respondent, rather than the principle of statutory flavour, expected of a contract of employment under the statute, which section 33(1) of the State Polytechnic Law portends.
With due respect to Learned Counsel for the Appellants, that reasoning is somewhat absurd, and clearly an attempt to import conflict to confuse and complicate what appears to be a very clear situation. It is like labouring to explain the difference between six and half a dozen!
Chapters 2.13(a), 11.5.2 and 15.2(e) and (f) which Appellants reproduced in their Brief, state:
2.13(a) – “The appointment of a confirmed member of senior staff may be terminated with three months notice by either the Polytechnic or the staff or payment of three months’ salary on lieu of notice by either party.”
11.5.2 “If it appears to the Council that any other confirmed senior members of staff of the Polytechnic should be removed from office or employment, on grounds of misconduct or inability to perform the functions of his office or employment, the council shall:
(a) give notice to the person concerned specifying reasons thereof;
(b) Make arrangement for an investigating committee to investigate and report in the matter; afford the person concerned an opportunity of making representation in person in the matter before the investigating committee.
(c) If council is satisfied that the person concerned should be removed, the council may so remove him by an instrument in written (sic) signed by the Registrar on the directive of the council in the following circumstances…”
15.2(e) & (f) – “If a member of staff is required by the Polytechnic to withdraw or retire from service in the public interest, such staff having served for 10 years or more shall be entitled to the payment of a pension immediately on retirement, irrespective of age at retirement.”
Even a casual glance at the above provisions can confirm that they are complimentary, not conflicting and not exclusive of each other. The basic rule of interpretation of statute or document is that:
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. The general rule is that such should be construed according to the strict, plain and common meaning of the words themselves.” See UBN Ltd. vs. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150 at 165; NNB Plc. vs. Osoh (2001) 12 NWLR (Pt. 729) 232 at 252.

It is not difficult to understand that, while the general provisions of chapter 2.13(a) remains to guide the employer and employee, with regards to the need for 3 months notice or payment of 3 months’ salary in lieu of notice, in the event of election to terminate the contract of employment, that the Appellants went further and specifically bound themselves to the effect that, before they can remove a confirmed staff on grounds of misconduct or inability to perform the function of his office, the provisions of chapter 2.13(a) is not enough, as the staff concerned must be given a hearing on any matter or accusation before a decision is taken against him. That is the essence of the provisions as stipulated in chapter 11.5.2 of the Regulations (supra). And where the staff has put in 10 years and above before he is required to withdraw his service or be retired, he is entitled to payment of pension immediately, as per paragraph 15.2 (e) and (f).
In fact, paragraph 2.13(a) of the Regulations (supra) can be said to apply more to the Respondent (employee), where he elects to withdraw his services from the 1st Appellant, voluntarily. The 1st Appellant, it appears, can only take advantage of the provisions of paragraph 2.13(a), where it wants to remove a staff whose appointment has not been confirmed by the institution. Having elected to bind its conduct and actions under Section 33 of the Law establishing it, and paragraph 11.5.2 of its Regulations (when it comes to discipline and/or removal of confirmed staff from office, either for misconduct or inability to perform the function of his office/employment), Appellants cannot rely on paragraph 2.13(a) of the Regulations.
Of course, the understanding is that before the provision of paragraph 15.2(e) and (f) is enforced, the staff that is required to be removed shall have been afforded the right of fair hearing under chapter 11.5.2 of the Regulations (supra). The provisions of chapter 11.5.2 of the Regulations (supra) appear to derive from section 33 of the Kwara State Polytechnic Law, the latter being the parent law that established the Institution, and the Regulations (supra) having been made under the said parent law, to govern conditions of service of the 1st Appellant.
Section 33(1) of the Law is similar to paragraph 11.5.2 of the Regulations. It says:
“If it appears to the Council that the Rector, Deputy Rector or any of the confirmed member of the Academic or Senior administrative or technical staff of the Polytechnic should be disciplined or removed from office or employment on the ground of misconduct, failure or inability to perform functions of the office or employment, the Council shall;
(a) give notice to the person concerned, specifying the reasons therefore;
(b) make arrangement for an investigating committee to investigate and report on the matter
(c) Afford the person concerned an opportunity of making representation in person, on the matter before the Investigating Committee.”
By Section 33(2) and (3),
“If the Council, after considering the report of the committee, is satisfied that the person concerned should be removed, it shall remove him by an instrument in written (sic) signed by the Registrar on the direction of the Council in the following circumstances…”
Both the provisions of section 33 of the statute creating the 1st Appellant and paragraph 11.5.2 of the Regulations (supra) which regulates the conditions of service of the Appellants by the Respondent were completely side stepped and flouted by the Appellants in their purported retirements of the Respondent, which amounted to removal from office against the rules of the law.
Appellants counsel’s vain effort to justify the forceful removal of the Respondent from office/employment under paragraph 2.13(a) of the Regulations Governing conditions of service was, with respect, not founded on honest and legally sound premise, because the said chapter or paragraph 2.13(a) of the Regulations cannot, operate independently of the rest of the provisions of the Regulations (supra), and, definitely, not in opposition to or isolation of the provisions of the law, which created the institution, and the relationship between the institution and its staff/workers, that is, Kwara State Polytechnic Law.
The contents of Exhibit KGS6 (the letter of compulsory retirement of the Respondent), as shown on page 12 of the Records, reveal that the Appellants were disenchanted with the services of the Respondent and plotted to retire him, forcefully, by removing him from office/employment, an act which could still have been done, legitimately, if the Appellants followed the Law which had made adequate provisions to guide them (Appellants) to do so successfully. But they failed to employ the law, and rather acted arbitrarily, hiding under paragraph 2.13(a) of the Regulations, as if they were a sole proprietor or a private business concern, whose servant serves at his (master’s) mercy, daily.
By retiring the Respondent, forcefully, with immediate effect, alleging that his services were no longer required by the 1st Appellant and paying him 3 months salary in lieu of notice, pursuant to chapter 2.13(a) of the Regulations (supra)’ Appellants breached section 33(1) of the Kwara State Polytechnic Law and chapter 11.5.2 of the Regulations, which required the Respondent to have been given fair hearing on the issue or complaints they (Appellants) had against him (Respondent), which allegedly made the Respondent’s services no longer required!
And by premising the forceful retirement on chapter 15.2(e)and (f) of the Regulations (supra), which suggests that the Respondent was required to withdraw his service (or retire) in the public interest, the Appellants were simply blackmailing the Respondent, having not told him what he had done to incur the wrath or disgust of the alleged public, whose interest, allegedly, required his being punished. It amounted to judging and sentencing the Respondent, without hearing him or giving him opportunity to be heard.
The Appellants’ meeting of 9th June 2009, where they conspired to commit the wrong against the Respondent was therefore only a gossip session against the Respondent and no valid decision could have been taken, therein, to discipline or punish the Respondent, in defiance of section 33(1) of the Kwara State Polytechnic Law and chapter 11.5.2 of the Regulations Governing Conditions of Service of the 1st Applicant. It was a breach of both his constitutional right to fair hearing under section 36(1) of the 1999 Constitution and the rules of natural justice. Adeniyi vs. Yaba College of Technology (1993) 7 SCNJ 304.
In the circumstances, I hold that the learned trial Judge was right to have inferred that the Respondent was removed from office, or forcefully retired, on grounds of misconduct or inability to perform the functions of his office, without’ keeping faith with the express provisions of the law (section 33(1) of Kwara State Polytechnic Law and chapter 11.5.2 of the Regulations (supra)) applicable to the circumstances).
There was no other reasonable/possible inference to reach than what the learned trial Judge concluded in the circumstances. See the case of IGALI VS. LAWSON (2005) FWLR (PT.) 1563 AT 573, which permits a court to draw inferences in reaching its decisions. In the case of EDOKPOLOR VS. OHENHAN (SUPRA), it was held that a court will presume the existence of one fact from the existence of proved facts, where such presumption or inference is irresistible or where there is no other reasonable presumption or inference which fits the facts or situation
See also the case of OLORUNKUNLE Vs. ADIGUN (2012) 6 NWLR (Pt.1297) 407 held 3, where Okoro JCA said:
“A judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. Equally, where a judge refers to a piece of legislation or rule of court which assist him to exercise his discretion one way or the other, he cannot be accused of introducing the rule of court suo motu (Ikenta Best (Nig.) Ltd vs. A.G Rivers State (2008) 6 NWLR (Pt. 1084) 612 referred to).”
That dictum is very instructive and is applicable to this appeal, being also in line with Order 4 Rule 3 of the Court of Appeal Rules, 2011, which also says:
“The court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made…”

I feel obliged here to reproduce, the wise dictum of my Lord, Alagoa JCA (as he then was) on the issue relating to employment with statutory flavour, in the case of N.B.T.E. VS. ANYANWU (2005) (PT.256) 1266 at 1284 when he said:
“Employees who are members of the public service should have their tenure jealousy guarded and all rules, regulation and procedural provisions, appertaining to them, meticulously followed. Their position therefore is not that of mere master and servant relationship. It is a position recognized as having statutory flavour. To remove a public servant in flagrant contravention of the rules governing him, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilize the security of tenure of the public servant, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society. In the instant case, the Respondent’s case is one with statutory flavor or contract. The contract is specifically protected being for a permanent and pensionable public officer. (Olaniyan vs. University of Lagos (2001) FWLR (Pt. 56) 778, (1985) 2 NWLR (Pt. 9) 599, followed Shitta-Bey Vs. Fed. Public Service Commission (1981) 1 SC 40; FDSC vs. Laoye (1989) 2 NWLR (Pt. 106) 652; Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Eperokun vs. University of Lagos (1986) 6 NWLR (Pt. 34) referred to).”
I think the situation in this appeal (at hand) agrees generally with the circumstances referred in the case of
NBTE Vs. ANYANWU (SUPRA).
There is no doubting the fact that, the Respondent in this case (at hand) was in a contract of employment, with statutory flavour. The Appellants had admitted that much, even though they also tried to be smart by saying that only paragraph 2.13(a) of the Regulations (supra) was relevant for construing the termination of the contract of employment.
I have already held that that cannot be a correct position of the law, in the circumstances. I therefore resolve the issue against the Appellants.
ISSUE 2
Appellant’s Issue 2 was:
Whether the learned trial judge was right by holding that the letter of retirement ought to be signed, personally, by the Registrar of the Appellants, when the Respondent was not dismissed from service or retired on allegation of misconduct.
On this, Appellants adopted their submissions in issue one, as they may relate this issue, saying that the resolution of issue one will affect this issue, in the sense that in the unlikely event that we hold that the Respondent was terminated for misconduct, then this issue will be resolved in the negative. However, that if we hold that the Respondent was not terminated for misconduct then, he said, we will go further to determine whether the Registrar, must sign the letter of retirement, personally, and what is the consequence of the failure to sign personally.
Counsel referred us to section 33(2) and (3) of the Polytechnic Act (Law) which made provision for signing of instrument of removal of any staffer of the Appellants found wanting by a given report of investigation. He submitted that it was clear that the power conferred on the Registrar to sign the instrument will only be exercised in the event of removal of a person who committed an offence which will warrant his/her removal from office. Counsel queried whether it will still be mandatory for the Registrar to sign the letter of retirement, personally, when the Respondent was not removed from office? He answered in the negative and submitted that the condition for the signing of instrument by the Registrar, personally, is not contained under paragraph 15.2(e) and (f) under which the Respondent was retired. Therefore, he said, the Registrar needs not sign the letter of retirement personally. He urged us to resolve this issue in favour of the Appellants.
Replying, the Respondent’s Counsel said that a careful reading of Exhibit KGS6 (letter of retirement of the Respondent) would show that the document was signed by one Mr. Ajide O.A. for the Registrar of the 1st Appellant; that this grossly violated the provisions of section 33(3) of the Polytechnic Law and chapter 15.6.2(c) of the Staff Regulations, which provide that, only the Registrar, in person, can sign the instrument removing any person in the employment of the 1st Appellant, and on the direction of the Council. He relied on the case of Obayan vs. University of Ilorin (2006) FWLR (Pt. 299) 1374 at 1399 – 1400, on the age long Legal maxim that where power is delegated to a person, it is exercisable by that person, himself, directly and personally, and he lacks the legal power to re-delegate such power – delegatus non potest delegare.
Counsel acknowledged that there are exceptions, however, relation to the principle of delegatus non potest delegare, but noted that those exceptions do not apply in this case, as there is no existing statute empowering the Registrar to delegate his said power. He relied on the case of Bamgboye vs. University of Ilorin (1999) 6 SCNJ 295 at 326 – 327, where the Supreme Court held:
“In this regard, it is trite law that a statutory disciplinary power cannot be delegated … the principle of law is that the person to whom an office or duty is delegated cannot lawfully devolve the duty upon another, unless he be expressly authorized so to do …”
Counsel urged us to hold that the trial judge was right in his decision and conclusion and relied on case of Adeniyi vs. Yaba College of Technology (1993) 7 SCNJ 304 at 337.
He urged us to dismiss the appeal and uphold the decision of the learned trial judge in the circumstances of the special and statutory nature of the Respondent’s employment, which entitles him to the fundamental right of fair hearing.
As I earlier stated in this judgment, this same issue 2 had also been duly considered in the case of Kwara State Polytechnic & Anor. Vs. Mr. Jimoh Dipo Saliu & Anor. (supra), which I held is on all fours with this case. The point is that the power of the Registrar to sign the letter of retirement could not be delegated to any other person.
Section 33 of Kwara State Polytechnic Law and chapter 11.5.2 of the Regulations Governing Conditions of Service of staff (made Under the Kwara State Polytechnic Law) spell out the steps to be taken to remove a confirmed staff of the 1st Appellant from his office/employment, where he is removed for misconduct or inability to perform the functions of his office. I have already held that the learned trial Judge was right in inferring misconduct or inability to perform the functions of his office as the reason for the compulsory retirement of the Respondent, when the Appellants terminated his appointment, alleging same to be in the public interest; that his services were no longer required.
Of course, that translated to the unlawfulness of the compulsory retirement of the Respondent, which the trial judge up-held and nullified the purported retirement. That also means that the retirement letter (Exhibit KGS6) was not properly issued, since the Appellants did not comply with the provisions of section 33(1) of Kwara State Polytechnic Law and paragraph 11.5.2 of the Regulations (supra) in issuing the said letters.
Exhibit KGS6, which purportedly retired the Respondent, could not therefore have been duly issued, upon the failure to comply with the Law, generally, and, in particular, for having been signed by a person, other than the Registrar of the Institution, authorized, under section 33(3), to sign such instrument,, on the instruction of the Council. The content of Exhibit KGS6 states:
“COMPULSORY RETIREMENT FROM THE SERVICE OF KWARA STATE POLYTECHNIC, ILORIN:
This is to inform you that the Governing Council at its 158th regular meeting held on Tuesday 9th June 2009 has approved your compulsory retirement from the service of the Polytechnic. The compulsory retirement is with immediate effect. The reason is because your services are no longer required by the Polytechnic. This is in accordance with chapter 15, section 2(e) and (f) of the Regulations Governing Conditions of Service for senior and junior staff of the Polytechnic. In the meantime, you will be paid 3 months’ salary in lieu of notice in accordance with chapter 2, section 13(a) of the Regulations Governing Conditions of Service for both senior and Junior staff of the Polytechnic.
Having regard, to the foregoing, you are required to hand over all Kwara State Polytechnic Property in your possession to your director of Institute who will clear you of same and any other indebtedness of the Polytechnic.
Thank you.

Signed:
AJIDE O. A.
For: Registrar and Secretary of Council”

There is everything in that Letter to show that the said Jide A. O. who signed the letter, was not the Registrar of the Institution, and did not sign it on the direction of the Council of the Institution, having purportedly written the said letter for and on behalf of the Registrar!
Such communication could only pass for a news item or report of what the Council of the Institution allegedly did on 9/6/2009, at its 158th Regular meeting, relating to the Respondent. It cannot lawfully be the communication of the Council decision to the Respondent, in view of the flaws earlier cited and as the author of the letter, Jide O. A., was not the Registrar of the Institution; and there is no provision in section 33(3) of Kwara State Polytechnic Law for any other person or staff of the 1st Appellant to sign the letter, for the Registrar.
By law, “When the statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards… per Adekeye JSC in Oloruntoba-Oju vs. Abdul-Raheem (supra).”
I therefore resolve this issue too against the Appellants.
On the whole, I hold that the appeal is unmeritorious and should be dismissed and it is, accordingly, dismissed.
The parties shall, however, bear their costs.

IGNATIUS IGWE AGUBE, J.C.A: I have read the erudite and comprehensive judgment just delivered by my learned brother, Mbaba, JCA, I am in complete agreement with the totality of the reasoning and conclusions reached in the appeal. I abide by al consequential orders including costs.

OBANDE OGBUINYA, J.C.A: I have had a preview of the finely-honed judgment my delivered by learned brother, ita G. Mbaba, JCA. I, completely, endorse his reasons and conclusions therein.
I must concede, upfront, that the, learned counsel for the appellants, R.O. Balogun, Esq., invented ingenious and scintillating arguments on the employment status of the respondent. In one breath, he adorned his position with the statutory flavour and in another wicket he drained/stripped him of it. That bifurcation, to my mind, renders the employment position of the respondent polymorphous, with the tendency for him to flirt from one to the other at the pleasure of the appellants. I am not aware of such a hybrid employment status in the domain of labour law and, perhaps, that accounted for the learned counsel’s failure to buttress it with any case-law authority. I hold the view that the respondent’s employment with the first appellant is imbued with statutory flavour with its concomitant perquisites that enure to him, the respondent.
On this premise, the appellant’s failure, a costly one at that, to respect the sacrosanct provision of section 33(1) of the said Kwara state Polytechnic Law is an arrant infraction of the respondent’s inviolable right to fair hearing as entrenched in section 36(1) of the constitution, as amended. The far-reaching consequence of that is obvious. The act of the appellants retiring the respondent prematurely is trapped in the den of nullity thereby vindicating the lower court’s decision as unimpeachable. In the circumstance, I resolve issue one in the appeal against the appellant.
The fulcrum of issue two is whether or not exhibit KGS6, the letter of compulsory retirement of the respondent, was, duly, issued by the first appellant having not been signed by its Registrar. It is trite law that, if an enactment bestows authority on a particular person or the power to do a specific duty, it is only that person or authority; and none other, that can perform the assignment before it will receive the imprimatur of the law, see section 10(1) of the interpretation Act, Emuze vs. V.C. University of Benin (2003) 10 NWLR (Pt. 828) 378; NPA vs. Lotus Plastic Ltd. (2005) 19 NWLR (Pt.959) 158; Balonwa vs. Gov. Anambra State (2008) 16 NWLR (Pt. 1113) 236; UBN vs. Ayodare & Sons. (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052) 567 (2007) 4 KLR (Pt. 235) 2002.
In keeping with this hallowed principle of law, the said exhibit KGS6, having not been signed by the Registrar of the first appellant, was not authored by him in due obeisance to the provision of section 33(2) and (3) of the said Kwara State Polytechnic Law. The net effect, a pernicious one at that, of that pitfall is that the exhibit was not, properly, issued in consonance with the law. The first appellant having overlooked the method decreed by that law, in retiring the respondent, the appellants’ attempt at retiring him, via that exhibit, was never accomplished. In the eyes of law, the exhibit is null and void while the respondent remains in the employ of the appellants, see UBN Ltd. vs. Ogboh (1995) 2 NWLR (Pt. 380) 647; Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227. In the result, I resolve issue two against the appellants.
In the light of these reasons, added to detailed ones catalogued in the leading judgment, I, too, dismiss the appeal. I abide by the consequential orders made in the leading judgment.
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Appearances

R.O. Balogun Esq,
A. Ahmed Esq.
Y.Y. Ajibade Esq
O.A. Fajenyo Esq.,For Appellant

AND

Y.A. Alajo Esq.
G.A. Faleye (Mrs.)For Respondent