PROFESSOR SHUIB OBA ABDUL-RAHEEM & ORS. V. DR. TAIWO OLORUNTOBA-OJU
(2006)LCN/2050(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of July, 2006
CA/IL/64/2005
RATIO
APPEAL: THE PRINCIPLE OF LAW THAT AN ISSUE MUST BE FORMULATED IN RESPECT OF A GROUND OF APPEAL
A cardinal principle of law is that an issue must be formulated in respect of a ground of appeal, and an argument canvassed therefore, but where no issue is raised in respect of the ground of appeal, the ground of appeal must be struck out. PER MUNTAKA-COOMASSIE, J.C.A.
JUSTICES:
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR SHUIB OBAABDUL- RAHEEM (Vice-Chancellor, University of Ilorin)
2. TUNDE BALOGUN (Registrar, University of Ilorin)
3. UNIVERSITY OF ILORIN
4. THE GOVERNING COUNCIL OF UNIVERSITY OF ILORIN – Appellant(s)
AND
1. DR. TAIWO OLORUNTOBA-OJU
2. DR. A. S. AJAYI
3. DR. ADEYINKA BANWO
4. MR. O. O. OLUGBARA – Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): The respondents, who were the plaintiffs in the court below, claimed against the defendants/appellants in their joint amended statement of claim as follows:-
“(a) A declaration that the defendants’ letter dated 15th May, 2001 to the plaintiffs titled “cessation of appointment” purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires null and void and of no effect whatsoever.
(b) A declaration that the plaintiffs are still in the service of the 3rd defendant.
(c) A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to pro-chancellor of the 4th defendant, and the 1st defendant.
(d) A declaration that the defendants are not entitled to summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federal and other relevant statutory as to discipline.
(e) A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.
(f) A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
(g) A declaration that the purported termination of the plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
(h) An order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letter to the plaintiffs in that regard.
(i) An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
(J) An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts as lecturers in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of judgment and thenceforth.”
The defendants now appellants, by a motion on notice dated 27/4/2002, applied for extension of time to file their statement of defence. The motion was heard and granted on 2/5/2002. The said statement was again amended on 17/5/2003. In reply to the statement of defence dated 13/5/2002, on 2/7/2002, the defendants/appellants filed a motion on notice, praying the lower Court i.e. the Federal High Court, Ilorin, for the following:
“An order of the Honourable Court setting the preliminary objection contained in paragraph 1 of the statement of defence for hearing and dismissing and/or striking out the case on the grounds viz.:
(i) The case of the plaintiff is caught by mis-joinder of parties and misjoinder of causes of action.
(ii) The suit of the plaintiffs disclose no reasonable cause of action or any cause of action at all.
(iii) The action of the plaintiffs is statute-barred and therefore liable to be dismissed.
(iv) This court is not the appropriate forum for the institution of this case as it is a trade dispute between employees and employers.
(v) The court lacks the vires and/or jurisdiction to entertain the plaintiffs’ claim as presently constituted. ”
This motion was heard on 2/4/2003 and on 19/5/2003 the learned trial Judge dismissed same. In conclusion, the trial Judge held thus:
” … I therefore reject the contention on behalf of the applicants that this suit is based on trade disputes in respect of which this court has no jurisdiction. In respect of the 2nd leg of this objection that the suit is statute barred,
both sides agreed that the termination was on 15/5 and that this suit was filed on 14/8. I, therefore have no difficulty holding that it has been filed within the 3 months stipulated under the Public Officers Protection Act, Cap. 439, LFN, 1990. There it is trite that the months stipulated in Cap. 359 means calendar months. See the case Kadiri v. Kogi State Government & 3 Ors. supra.
The respondents have also claimed that they did not receive the letters of termination until June 2001.
This boils down to the fact that court has an investigation to make as to when the letters of termination were received. This could only come out when evidence is had (sic) in court by both sides, it is only then that court can determine whether the time stipulation (sic) in the Public Officers Act would be applicable to this matter. The contention that the suit is statute-barred is therefore rejected. In the whole, this application for reasons adduced in the foregoing fails and is dismissed accordingly without any order as to costs”.
See page 61 of the record of proceedings.
The case therefore was adjourned to 24/9/2003 for definite hearing. However, on the 14/11/2003, the defendants now appellants applied to amend the amended statement of defence, the application was granted on the 10/12/2003, and the case adjourned to 29/1/2004 for definite hearing. As a result of this latest amendment, the respondents/plaintiffs also amended the reply to the statement of defence. The amended reply to the statement of defence was dated 17/12/2003. It is to be noted that the defendants again amended their further amended statement of defence, which application was granted on 5/6/2004 which again necessitated the filing of a reply to 2nd further amended statement of defence dated 18/6/2004.
The plaintiffs called Dr. Taiwo Oloruntoba-Oju as their sole witness. He is a senior lecturer at the Department of Modern Languages; the other plaintiffs are also members of the Academic Staff of the University but are sacked. He has been in the University for 17 years, 2nd plaintiff has worked for 20 years, 3rd plaintiff for 12 years, 4th plaintiff 12 years and 5th plaintiff 11 years. Certified copies of the letters of appointment tendered as exhibits 6-10. The employment is permanent and pensionable and the retirement age is 65 years. He stated that none of them has attained up to 50 years.
The relationship between them and the defendants are the condition of service for senior staff in the University Act. The revised regulations governing the conditions of service of senior staff of the University dated 24/3/2004 was admitted as exhibit 11.
No letter was delivered to them on the dates written on the letters.
He stated that they were sacked without any reason. No query was given to us and no hearing was afforded us. The letters of sack dated 15/5/2001 were admitted as exhibits 12 – 16. They received the letters in June 2001, no letter was delivered to them on the dates written on the letters.
He stated further that they were expected to be told the reasons for terminating their appointments. He denied that they ever disrupted examination in the University of Ilorin, he said that he read the news about the disruption of examination in the University in a bulletin of 1l/0512001 which was tendered as exhibit 17. The witness stated that they were not taken through any process at all, no query was given to them and they were not taken before any governing Council.
By regulations of Chapter 8 they should be afforded fair hearing, notice of allegation should be given to them and allowed to defend themselves before the Council. The witness was shocked that they were sacked by the Governing Council meeting of 15/5/2001 tendered as exhibit 20.
Re stated(Sic) that they were treated this way because they were members of ASUU. The witness is the Chairman, the 2nd plaintiff is the Secretary, 3rd plaintiff the Treasurer, 4th plaintiff the Assistant Secretary and 5th plaintiff the coordinating Secretary of the Executive. And as the Executive members, they were responsible for labour matters on the campus. They joined the National ASUU to press for better conditions after writing to the University authority, and it was during the strike action that they were sacked. During this strike, the Federal Government of Nigeria and ASUU went into negotiation on improving the University system. This negotiation led to improved conditions of service. A Professor was earning N60,000.00 before he had an increase to N 100,000.00. The Federal Government of Nigeria (FGN) asked that they be re-instated; the letter of the National University Commission to that effect was tendered as exhibit 21. He stated that the defendants could not terminate their appointments summarily.
Under cross-examination, the witnesses stated that as at 15/5/2001 they were staff of the University. He denied having the knowledge of the termination on the 15/5/2001 but long thereafter.
He admitted that exhibit 15 was the only letter of cessation addressed to him but he was aware of other documents. He admitted that the University did not state any reason for the cessation of appointment but there were advertisement in radio, television, newspapers and minutes of Council where they stated the reasons. He agreed signing memo as to terms of his employment like other plaintiffs. The memo of employment was admitted as exhibit 29. He further stated that the University gives notice in case of lawful termination because an issue between the F.G.N. and ASUU, and it eventually got to the Industrial Arbitration Panel. He attended the sittings of the panel in Lagos until the panel concluded their sittings. He denied knowing whether any award was made by the panel as nothing has been communicated to them. He also admitted under cross-examination, that it was the Governing Council that employed and it was it also that terminated the employment.
The defendants/appellants in turn called one witness, namely, Mr. Maruf Eya Ogbonya who is the Chief Executive Officer administration in the Governing Council office. He knows the plaintiffs, they are former staff of the University. Some times in May 2001, the appointment of these plaintiffs were brought to an end.
He identified exhibits 12 – 16 as the letters of termination. The appointments were terminated in accordance with the rules of the Institution. He testified that exhibits 12 – 16 were delivered to the plaintiffs, and that they were delivered on 15/5/2001. He identified exhibits 28 and 29 as the memo of appointment signed by the plaintiffs. This witness tendered the memo of appointment of the 4th plaintiff as exhibit DW1. He stated that when an employee is on temporary appointment. there would be no memo of appointment attached to the letter but when the appointment is regularized, the letter of appointment is accompanied by a memo of appointment.
He stated that the plaintiffs’ appointment were terminated in accordance with the memo of appointment and not on alleged disruption of examination in one hall; and not also as a result of the participation in ASUU strike. He was shown exhibit 21 on directive from N.U.C. to recall sacked staff, the N.U.C. has not sanctioned the University for not recalling the sacked lecturers, he further stated.
He again said that National ASUU took the N.U.C. to Industrial Arbitration Panel. The panel upheld the action taken by the Universities and that there is no appeal against the decision of the panel. As processes filed before the panel, he tendered the letter from the Minister of Labour and Productivity dated 20/5/2003 to Chairman Industrial Arbitration Panel on trade disputes as exhibit DW2, and the memorandum of 2nd party before the panel dated 24/6/2003 as exhibit 3, 2nd party’s brief of argument was admitted as exhibit DW4, the written address of the 1st party also was admitted as exhibit D5.
Under cross-examination, he testified that the employer or employee can determine the employment, and the employments were terminated on the strength of memo of appointment. He said that he was not aware whether the plaintiffs were arraigned before the court for disruption of examination. He stated that the plaintiffs were not sacked for going on strike or for committing any offence. He further stated that by the provisions of exhibit 11, if a staff is to be sacked for misconduct, he must be taken through disciplinary procedure.
He stated that the parties before the Industrial Arbitration Panel were ASUU and NUC and that it was the FGN that took National ASUU to Industrial Arbitration Panel (I.A.P), and that University of Ilorin was not a patty and the plaintiffs were also not patties before the IAP.
The letter of withdrawal of award of the Arbitration Panel was tendered as exhibit DW7. He agreed that the plaintiffs were not on temporary appointment.
This is the case of the parties before the lower court. I have attempted to extensively set out the facts and evidence of this case in order to enable and empower me to appreciate the facts involved.
The learned counsel to the parties addressed the trial Judge respectfully and on the 2617/2005 the learned trial Judge found in favour of the plaintiffs and granted all their claims. The learned trial Judge concluded, on page 244 of the record of proceedings, as follows:
“In the light of the above, it is my decision that the plaintiffs are entitled to the reliefs asked for in paragraph 25 clauses a – j.
The defendants are also hereby ordered to re-instate and/or restore the plaintiffs to their posts as lecturers in the University of Ilorin with all their rights, entitlements and other perquisites of their offices. The defendants are also hereby ordered to pay to the plaintiffs all their salaries and allowances from February 2001 till this day of judgment and thenceforth. This is my decision.”
The defendants, being dissatisfied with the above decision, appealed to this court by filing their notice of appeal dated 27/7/2005. In compliance with our rules both parties filed their briefs of argument. The appellants also filed a reply brief. The appellants in their main brief dated 17/2/2006 formulated three (3) issues for our determination of this appeal as follows:-
“1. Whether the learned trial Judge was not wrong when he held that the Federal High Court can entertain the case of the respondents when it was apparent from the statement of claim that, the case of the plaintiffs is rooted on industrial action and failure to abide by collective agreement between the Federal Government and Academic Staff Union of Universities (ASUU) Grounds one and two.
2. Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim – Grounds 1,2, 3,5 and 6.
3. Whether the case of the respondents was not caught by issue estoppel having regard to the decision and/or award delivered by the Industrial Arbitration Panel on the same subject matter.”- Grounds 4 and 7.
The respondents in turn, filed their brief of argument on 22/3/2006 and distilled four (4) issues from the grounds of appeal filed. I reproduce them thus:
1. Whether the learned trial Judge was right in holding that the trial court had jurisdiction to entertain the plaintiffs/respondents’ case. Grounds 1 & 2 of the additional grounds of appeal.
2. Whether the learned trial Judge was right in holding that the appellants were wrong in terminating the plaintiffs’ /respondents’ appointments (which appointments are of statutory nature) without giving reasons in the letters of termination – exhibits 12 – 16, when situations and circumstances disclosed in the exhibits tendered by the respondents at the trial clearly show that the respondents’ appointments were terminated for misconduct without the respondents being taken through due process as required by statute (s) that is S. 15 of University of Ilorin Act and exhibit 11. Grounds 2 & 3 of the original grounds of appeal.
3. Whether the learned trial Judge was right in holding that the plaintiffs’ /respondents’ suit not caught by issue estoppel and that there was no valid award by the Industrial Arbitration Panel that could adversely affect the plaintiffs’ /respondents’ case in any way whatever. Grounds 4 & 7 of the original grounds of appeal.
4. Whether the learned trial Judge was right in nullifying and setting aside the termination and granting all their reliefs including the order for their reinstatement to their jobs and payment of their accumulated salaries and allowances. Grounds 1, 5 & 6 of the original grounds of appeal.
The respondents, My Lords, in their brief raised a preliminary objection wherein they urged this court to strike out grounds 1,5 and 6 of the notice of appeal, as they were not covered by the issues for determination formulated by the appellants. The learned counsel to the respondents submitted that the said grounds 1, 5 and 6 are F liable to be struck out. He relied on the cases of. Morakinyo v. Adesoyero (1995) 7 NWLR (Pt. 409), 602; Jibrin v. Saba (2004) All FWLR (Pt. 220) p. 1319 paras. B-C; (2004) 16 NWLR (Pt. 899) 243. Khalil v. Yar’Adua (2004) All FWLR (Pt. 225) 112 at 138; (2003) 16 NWLR (Pt. 847) 446.
The appellants in their reply brief submitted that the objection was unfounded. Issue No.2 formulated by the appellants was referred to and that same has covered grounds 1,5 and 6 complained about.
The grounds of appeal being attacked, without their particulars are herewith reproduced below:-
“1. The trial court erred in law in ordering are-instatement of the plaintiffs back to the employment of the 3rd defendant when from the evidence adduced there had been intervening factors to inhibit reinstatement.
5. The trial court erred in law when he ordered the payment of the plaintiffs’ salaries and allowances from February, 2001 to date judgment when from the material available before the court the plaintiffs were not entitled.
6. The court erred in law in awarding the reliefs granted to the plaintiffs when they did not establish their entitlement to the reliefs so awarded.”
It is worthy of note to mention that all these grounds of appeal challenged the claims of the respondents that were granted by the trial court, and these claims were parts of the reliefs set out in the respondents’ statement of claim. I therefore have no difficulty in coming to the conclusion that issue No.2 formulated by the appellants covered all the issues raised in grounds 1, 5 and 6. I have earlier set out the issues formulated by the parties in this judgment, however for the sake of clarity. I will reproduce issue No.2 formulated by the appellants thus:
“2. Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim.”
(Italics mine for emphasis).
While I agree with the respondents’ counsel on the submission that when a ground of appeal is not covered by the issues formulated, that ground is said to be abandoned and is liable to be struck out.
Likewise an issue for determination derives its potency from the ground of appeal, when an issue for determination does not relate to any of the grounds of appeal filed the said issue is said to be incompetent and is liable to be struck out. See Jibrin v. Saba (2004) All FWR (Pt. 220) 1319 or (2004) 16 NWLR (Pt. 899) 243.
“”. By the same token ground of appeal No. (1) to which the issue is related is also struck out.
A cardinal principle of law is that an issue must be formulated in respect of a ground of appeal, and an argument canvassed therefore, but where no issue is raised in respect of the ground of appeal, the ground of appeal must be struck out.” Per Mukhtar, JCA as she then was at p.255.
However, the position in the appeal at hand is different. The grounds of appeal (1,5 and 6) complained of are clearly covered by issue NO.2 formulated by the appellants. The preliminary objection is unfounded and mis-conceived. Same is hereby dismissed.
In the determination of the appeal proper, I prefer the issues formulated by the appellants in their briefs of argument and I adopt same.
Issue No. 1
Learned counsel to the appellants submitted that in the determination of whether the court is vested with jurisdiction to entertain a particular matter the court will only consider the writ of summons and the statement of claim. He referred to the case of:
(a) Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549;
Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393 at 404.
Learned counsel again referred to paragraphs 9, 10, 11, 12, 13, 14,15,16 and 17 of the amended statement of claim and submitted that the kernel of the respondents’ case was the alleged termination of their appointment by the appellants as a result of their participation in a national strike of ASUU, the contention being that the termination of the appointment was a flagrant violation of the agreement signed between the Negotiation Team of the Federal Government of Nigeria – FGN – and the officials of ASUU. The trial Judge in this case, according to the appellants, only considered the reliefs endorsed in the writ of summons and the amended statement of claim, without considering the averments contained in the amended statement of claim. He cited the case of Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295 at 312. According to the learned counsel, if the trial court had considered the paragraphs of the amended statement of claim referred to, he would have discovered that the respondents’ case borders on trade disputes. He referred to section 47(1) of the Trade Dispute Act (Cap. 432) Laws of the Federation of Nigeria, 1990, and therefore concluded that the only court with exclusive jurisdiction to determine any cause bordering trade dispute is the National Industrial Court, as provided in section 19(1) of the Trade Dispute Act. He therefore submitted that where jurisdiction of a court is expressly ousted by statute, there must be compliance and effect given to it. He relied on the cases of:-
Ajuebor v. A.-G., Edo State (2001) 5 NWLR (Pt. 707) 466 at 481; and NUC v. Oluwo (2001) 3 NWLR (Pt. 699) 90 at 102 – 103.
Issue No.2
Learned counsel submitted that the terms that govern the employment of the respondents with the 3rd appellant are clearly set out in their letters of termination and memoranda as to the terms of their employment. He referred to exhibits 1 – 5 and exhibits 28, 29 and DW1, which were endorsed by the respondents. Hence in line with the terms of contract in the letters of appointment and memoranda the constituted authority of the 3rd appellant terminated the appointment of the respondents and he referred to exhibits 12 & 16. There was nothing like allegation of misconduct in the letters of cessation of appointment and the trial court cannot place reliance on extraneous matters to come to the conclusion that the respondents were terminated based on allegation of misconduct. He cited the case of 1doniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 at 630. He again submitted that parties are bound by the terms of the contract they entered into. He relies on the case of UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 400.
Appointment with Statutory Flavour.
Learned counsel submitted that appointment with statutory flavour can also be terminated in accordance with the terms embodied in the letter of appointment and memorandum if the employee was not removed on ground of mis-conduct. He cited the famous case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599/621.
The learned counsel on the other hand argued that even if the finding of the learned trial Judge that the respondents were removed on the allegation of misconduct was correct, can it be said that they were not given opportunity to defend themselves?, he answered in the positive. He referred to exhibit 20 paragraph 5 where it was stated that ASUU members involved in disruption of examination were invited and given ample opportunity to defend themselves which they turned down. He therefore submitted that the failure of the trial Judge to scrutinize this exhibit with the view of making appropriate finding and to be guided as to requisite weight to be attached to such document had occasioned miscarriage of justice, He cited the cases of Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 622; Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 567.
Issue No.3
On this issue, learned counsel submitted that an award is like a judgment of court of law which binds parties and their privies. The learned trial Judge found as a fact that an award was made on the same subject-matter by the Industrial Arbitration Panel, he therefore ought to have dismissed or struck out the respondents’ case. He submitted further that it is not valid in law for the Honourable Minister for Labour and Productivity to withdraw the award as he lacks the power to do so; he is only empowered to refer the award back to the Arbitration Tribunal, or where there is objection to the award, refer the dispute to the National Industrial Court, otherwise the Minister must confirm the award. He referred, on this point, to sections 12 and 13 of the Trade Disputes Act.
However, in as much as it is not in dispute that the issue bordering on the termination of the respondents forms part of the award delivered by the Industrial Panel, then the issue can be said to have been resolved or determined by the Industrial Tribunal, and as such it would amount to an abuse of judicial process if the same subject matter is being decided by the trial court. The respondents are privies of ASUU, hence they were bound by the award made by Industrial Arbitration Panel. Therefore, the issue of termination of appointments of the respondents constitute an issue of estoppel against the respondents. He relied on the case of:
(i) Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 184; and
(ii) Ogbogu v. Nwonumu Ndiribe (1992)6 NWLR (Pt. 245) 40.
Learned counsel also referred to exhibits DW2, DW3, DW4, DW5, DW6 and DW7 and submitted that the Industrial Arbitration Panel (I.A.P.) is a court and of competent jurisdiction.
The respondents in their brief of argument submitted that the trial court was correct when it held that from the reliefs sought by the plaintiffs in their writ of summons and statement of claim the matter that arose for determination was the unlawful determination of the plaintiffs’ appointments by the defendants. The case is rooted in breach of contract of service by the defendants. He argued that it was a misconception for the appellants to submit that the case is one bordering on trade dispute. He cited the case of Seatruck (Nig.) Ltd. v. Ayo Pyne (1995) 6 NWLR (Pt. 400) 166 at 179. He referred to section 251(1)(p)(r) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the determination of the plaintiffs’ appointments by the defendants was an executive act of the University of Ilorin which is an agency of the Federal Government, as a result, the lower court has jurisdiction to determine the case. He submitted further that notwithstanding the averments in the plaintiffs’ statement of claim to the effect that the appointments were terminated as a result of the plaintiffs’ participation in ASUU strike the fact remains that the defendants exercised executive act to terminate the said appointments, and the reliefs show that they were challenging the wrongful acts of the defendants. He cited the case of NEPA v. Edegbero (2002) 12 SCNJ 173 at 183; (2002) 18 NWLR (Pt. 798) 79.
Learned counsel for the respondents herein referred to the case of Onuorah v. K.R.P.C. (supra) and submitted that the case supports the position that the jurisdiction of the Court is determined by the plaintiffs claims as endorsed in the writ of summons and statement of claim. He further submitted that the nature of the plaintiffs claims which are declaratory and injunctive in nature cannot be entertained by Industlial Arbitration Panel, he cited the cases of Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (No.2) (1987) 1 NWLR (Pt. 49) 284; Kalango & Ors v. Dakuba & Ors. (2003) Vol. 16.WRN 32 at 49. He also referred to exhibit DW5 which was prepared by the appellants’ counsel before the I.A.P. in which he said that the proper court to exercise jurisdiction is the lower court and not the Industrial Arbitration Panel. This changing his position now amounts to inconsistency and hypocrisy. He further contended that this case has been pending before the lower court before the crisis broke out between the National ASUU and the FGN which led to the FGN to approach the I.A.P. for help This case was filed on 14/8/01 while LA.P. matter was filed in 2003.
On the issue of the validity or otherwise of the termination of the plaintiffs’ appointment he submitted that the appellants cannot summarily terminate the appointments of the respondents based on letters of employment and/or memorandum signed by the plaintiffs, as the employment was governed by the Unilorin Act, Cap. 455, Laws of the Federation, coupled with the fact that the said appointments are of permanent nature and pensionable nature. He submitted that section 15 of Unilorin Act is superior to the memorandum, particular regulation 1.1.3 (page 1 of exhibit 11) subject the letter of appointment and memorandum to the provisions of the Unilorin Act. Counsel cited the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 602, 603 and 628; and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 164.
Learned counsel contended that in Olaniyan’s case, as in this case, no reasons were stated in the letter of termination as reliance was placed on the memorandum of appointment, but evidence at the trial disclosed that they were sacked for alleged misconduct, and it was for this reason that the court set aside the termination and ordered their reinstatement, as their appointments cannot be summarily terminated under S. 17 of the University of Lagos Act which is in pari materia with section 15 of the Unilorin Act. He relied on exhibits 17, 18, 19 and 20 that the respondents’ appointments were terminated for alleged misconduct i.e. disruption of examination. He dismissed the submission of the appellants’ counsel that the respondents got fair hearing before the determination of the employment by virtue of exhibit 20. He then submitted that this point was not part of their case at the lower court, and they cannot now set up a different case at the appeal court, he relied on the case of Akuneziri v. Okenwa (2000) 12 SCNJ 242/267; (2000) 15 NWLR (Pt. 691) 526. Even then, the portion referred to in exhibit 20 do not meet the standard for fair hearing as stated in the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) at 550.
On the 3rd issue, learned counsel submitted that the respondents case was not caught by issue estoppel because the matter submitted for adjudication by the respondents to the lower court had neither been deliberated upon nor determined previously by any court of competent jurisdiction. The award, the appellants claimed, was made by the Industrial Arbitration Panel was never tendered by the appellants, hence a party who seeks to rely on a judgment or a plea of issue estoppel has a duty to procure the judgment. He relied on section 132(1) of the Evidence Act and the case of Samano v. Ilesanmi (2001) FWLR (Pt. 54) 377 at 382. Hence the appellants submission on the award by Industrial Arbitration Panel is speculative. It is not the duty of this court to fish for an award made by Industrial Arbitration Panel on which on issue estoppel is being raised when same was not tendered before the court.
Learned counsel for the respondents added that exhibits DW2, DW3, DW4 and DW5 by themselves cannot sustain the assettion that the respondents were caught by issue estoppel they are mere pleadings and address and not the decision of the Industrial Arbitration Panel.
On the other hand, counsel continues, even if the award has been tendered, which is not conceded, it could still not have qualified for the plea of issue estoppel, this is because the conditions stated in those cases – Osunrinde (supra), Nwopara Ogbogu v. Nwonuma Ndiribe (1992) 6 NWLR (pt. 245) 40 have not been met – for example:
(i) IAP. is not capable of giving a final decision on a matter referred to it until the Minister has confirmed it and published same in the Gazette – S. 13(2) of the Trade Dispute Act, Cap. 43, Laws of the Federation, 1990. In this case it was alleged that the Minister of Labour by exhibit DW7 withdrew the alleged award;
(ii) The issue in this case and at the IAP. are different.
This case involves the determination of contract of service while the case of I.A.P. is a Trade Dispute between FGN and ASUU.
(iii) The parties are also not the same.
Finally, learned counsel submitted that the trial court was right in setting aside the letter of cessation of appointments and reinstating the respondents to the employment of the defendants. This is in line with the decision in the case of University of Nigeria Teaching Hospital Mgt. Board v. Nnoli (1994) 10 SCNJ 71 at 75; (1994) 8 NWLR (Pt. 363) 376. That since the appointments of the respondents are governed by S. 15 of the Unilorin Act, Cap. 455, Laws of the Federation, 1990, non-compliance with the Act and exhibit 11 renders the appellants act null and void – Bamgboye v. University of Ilorin (1999) 6 SCNJ 296; (1999) 10 NWLR (Pt. 622) 290.
The appellants, in their reply brief submitted that the assertion of the learned counsel to the respondents at page 15 of their brief is baseless and cannot be supported by evidence from the record. There is nothing in the record to show that the office of Yusuf O. Ali & Co. signed exhibit DW5 or had over bearing input in preparing and filing same as claimed by the respondents’ counsel. Learned appellants’ counsel on page 8 of their reply brief submitted that the respondents’ counsel’s contention in his brief of argument at paragraph 3.03 is not permitted by law as counsel cannot give evidence from the bar, let alone in his written address or brief of argument. He then urged this court to expunge paragraph 3.03 of the respondents’ brief of argument or discountenance same.
The summary of the appellants’ complaint under issue No. 1 is firstly, that the ruling of the trial court was unjustified vis-a-vis the competence of the respondents’ claims. The appellants as defendants objected to the competence of the respondents’ claims. I have read and digested the argument of both counsel on the issue. I think the gravement of objection was that from the writ of summons and statement of claim of the respondents it was apparent that their claim was rooted in trade dispute. The appellants therefore raised an objection that the proper forum for the trial of their case was the National Industrial Court – NIC – which has the vires to try industrial disputes and implementation of collective agreements which were the basis of the respondents’ case. I have earlier on referred to paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 and to be found at pages 75 – 76 of the record of proceedings. My Lords, after careful and calm consideration it is my view that the central points of the respondents’ case before the lower court was the alleged termination of their appointments by the appellants as a result of their participation and partaking in a national strike by ASUU. The argument of the respondents being that the termination was a flagrant violation or breach of the agreement signed between the Negotiating Team of the Federal Government and the officials of the Academic Staff Union of Universities (ASUU). The relevant statement of claim reads thus.
“9. The plaintiffs state further that the defendants have punished and victimized them because they are officers and members of Academic Staff Union of Universities Unilorin Branch who have been opposed to the obnoxious and objectionable policies and style of administration of the 1st defendant ably assisted by the 2nd defendant and condoned painfully (but surprisingly) by the 4th defendant.
(10) The plaintiffs state further that there has been protest in form of strike action by the Academic Staff Union (ASUU Unilorin) members were sometime in February, 2001 against the high handedness of the 1st defendant by which he has destroyed the career of nearly 50 Academic Staff of the University.
(11) The plaintiffs aver further that their action local protest/strike action was suspended in April, 2001 when the national strike by ASUU National commenced. The 1st plaintiff as Chairman of the Union at the Unilorin ASUU wrote to the 1st defendant to intimate him of the said commencement of the national strike … The defendants in a letter signed by the 2nd defendant responded in a letter of 4th April, 2001 to the 1st defendant and acknowledged receipt of 1st plaintiff’s letter and the commencement of the said national strike. The said letters is (sic) hereby pleaded.
(12) The plaintiffs stated that the defendants intimated them by making them to suffer a lot of humiliation and deprivations as a result of their participation in the national strike which is their legitimate and constitutional right to do so as a members of ASUU.
But the plaintiffs had to press forward in order that Unilorin shall not be isolated, in that what was being agitated and being sought from the Federal Government was for the benefit of Nigerian Universities including Unilorin and for better welfare of all staff including the 1st and 2nd defendants who will invariably enjoy the fruits of the struggle.
(13) The plaintiffs also state that there was a clarion call from their (ASUU) National Secretariat directing all Academic Staff of Universities to participate in the said strike. The plaintiff plead and shall rely at the trial on letter dated April 14th, 2001 from the Unions National Secretariat signed by their president to this effect.
(14) The plaintiffs state that eventually the Federal Government of Nigeria through its organ and agencies like the Federal Ministry/Minister of Education.
National Universities Commission and Government Negotiating Team (at which 1st defendant was a member) but headed by Professor Ayo Banjo former Vice-Chancellor of University of Ibadan, negotiated with ASUU team led by their president, Dr. Oladipo Fashina.
(15) The plaintiffs state that the defendants victimized them by purporting to terminate their appointment during the said strike and thereby wrongfully and prejudicially disrupted (sic) their light to continuous employment with the University. The plaintiffs state that this action is contrary to and against the agreement signed between Negotiating Team and ASUU that no one should be victimized as a result of participation in the said strike.
(16) The plaintiffs plead and shall rely at the trial on copy of the agreement signed by the Federal Government owners of the Universities and ASUU. Plaintiffs also plead copy of the three joint communiqu’C3’A9 issued and signed by Professor Ayo Banjo JP, for on behalf of Federal Government and Dr. Oladipo Fasina on behalf of ASUU”.
I have taken pains of reproducing the above averments in the statement of claim in order to show, even at the risk of repetition, that the substratum of the respondents’ case, ab initio was the alleged wrongful termination of their employment during the national strike action embarked upon by ASUU which termination runs foul of the collective agreement between the Federal Government “the owner of the University and ASUU”.
The subject matter herein has some elements of trade dispute.
The jurisdiction of a court is sometimes limited especially by the type of subject matter. It is a well settled law that courts are creatures of statute and it is the statute that created a particular court that will also confer on it its jurisdiction. This may be extended, not by the courts, but by the legislature, for it is part of the interpretative functions of the courts to expound the jurisdiction of the court but not to expand it. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at p. 561 – para. B per Oputa, JSC.
It is my candid view that the lower court, formerly the Federal Revenue Court has limited jurisdiction in civil causes and matters.
The National Industrial Court has also limited jurisdiction. The Shalia Court of Appeal has limited jurisdiction so also the Customary Court of Appeal. No court should be allowed to usurp the powers of other. No court should be allowed to starve the other. The respondents’ choice of the Federal High Court in my view is wrong.
I may not be correct though Specific jurisdictions were assigned to the Federal High Court but trade disputes shall be thrashed out in the National Industrial Court.
The appellants’ issue No.1 is therefore a direct challenge to the trial court’s finding/ruling as to the jurisdiction. The trial court, my Lords, ought to have struck out the case of the respondents on the ground of lack of jurisdiction of the subject-matter which were predicated on trade dispute and implementation of collective agreements. The best cause for the trial court definitely was to, as I stated, decline jurisdiction – Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212/228 – 229 per Oguntade, JSC. I think, the learned Judge of the lower court was wrong in looking beyond the writ of summons and statement of claim in order to convince himself that he can assume jurisdiction in this matter. It was ably stated by the Supreme Court that in determining whether a court has jurisdiction in a matter or not, the court will examine or consider the nature of summons and statement of claim. I am always readily bound by the decision of the Supreme Court. I am not saying that the Federal High Court will have no jurisdiction to entertain a matter stemming from organ or agents of the Federal Government like Unilorin. Far from that, I am not unaware though that the Decree No. 107 of 1992, Decree No. 60 of 1991 both created and widened the jurisdiction of the Federal High Court. The crux of the argument and submissions of the learned counsel for the appellants is that in view of the fact that the plaintiffs/respondents’ claims are based and predicated on trade disputes only the National Industrial Court has jurisdiction to hear the matter. In my little understanding of the law over the years is that the court, especially when its jurisdiction is challenged, in this manner by filing a notice of preliminary objection, is only better and safer for that court to look only the writ of summons and statement of claim to decide for itself whether it has jurisdiction or not. “This is because, (to borrow Tobi, JSC’s statement) only the claims or reliefs donate jurisdiction to the court”.
See Onuorah v. K.R.PC. Ltd. (2005) 6 NWLR (Pt. 921) 393. The court is not allowed, for one moment, to look elsewhere apart from the writ of summons and statement of claim. The trial court should have accepted that fact and struck out the respondents’ claims. After all, case comes, case goes. I finally abide by the decisions of my Lords Akintan and Tobi, JJSC on pp. 404 – 405; and 406 – 407 respectively in the above Supreme Court’s case. The issue is resolved in favour of the appellants herein.
On the 3rd issue formulated by the appellants, the decision is equally interesting. After looking and considering the argument for and against, I hold that it will be difficult to hold that the trial court had no jurisdiction to have entertained the case on issue estoppel.
Before I delve seriously into issue No.3, I wish to digress a little to summarize the stance taken by the appellants in their brief, namely, that the termination of appointments of the respondents had been the subject of the decision before the Industrial Arbitration Panel which has made an award against ASUU, the union to which the respondents belonged. It was then contended that since the issue of termination of the appointments of the respondents had been the subject of an award by the Industrial Arbitration Panel, then the trial court had no jurisdiction to have entertained the case as constituted. Furthermore, the respondents in their pleadings and evidence at the trial did not deny the fact that the issue of the termination of their appointments was part of the reference to I.A.P. in the dispute between ASUU and the Federal Government.
According to the learned counsel for the appellants the details of which were stated earlier in this judgment, the respondents did not dispute the fact that an award was made by I.A.P. in which it upheld that ASUU has filed an objection against the award and that the Minister of Labour and Productivity had put the award in abeyance.
The respondents’ counsel challenged this issue vehemently and submitted that the respondents’ case was not caught by issue estoppel.
The said judgment was not produced by the appellants who sought to rely on it. A lot of authorities were cited in support. He argued also that some conditions stated in the cases were not met. See Osunayinde supra and Ogbogu v. Nwonnma Ndiribe (1992) 6 NWLR (Pt. 245) 40. The conditions are that:
(i). the LA.P. is not capable of giving a final decision
(ii) the issues are different; and
(iii) the pat1ies are also not the same.
I do not buy the idea that since the Minister has withdrawn the award that alone should have made the trial to continue having jurisdiction. That contention lacks legal backing on the ground that the Minister of Labour can neither, lawfully, withdraw, set aside nor nullify an award by the I.A.P. The Minister can however lawfully affirm an award or remit same to the Appeal Tribunal. See section 32(1), (2) – (5) of the Trade Disputes Act (supra).
Above could have been the end of this judgment. There would have been no need for me to go further and treat issue No.2. This is because I do not believe that the claims as presented should have been in the lower court. I am not supposed to consider the modes of termination of the appointments of the respondents. All what I know is that there was need for the appellants under section 15(1) of the University of Ilorin Act, Cap. 455 to give the respondents a hearing. Whether the evidence, which has not been challenged, that members of the ASUU i.e. the respondents were invited to defend themselves but turned the invitation down. Whether that is sufficient to say that the respondents were accorded hearing, is another issue altogether. However, there is another mode of cessation of the appointments of the respondents under S. 15(3) of the same Act, under which the appellants alleged to have acted in removing the respondents. I have also closely considered the relevant exhibits and found that it is not permissible for me to consider the issues under issue No.2 as distilled by the appellants, It means that I cannot at the moment decide on the correctness or otherwise of the decision of the trial court that the termination of the appointments of the respondents was wrongful because according to the trial Judge, the respondents were not heard.
It is therefore now firmly settled that once a preliminary objection succeeds, as in the instant case, there would be no need to go further to consider the other issues formulated, It even means that since the lower court lacked jurisdiction to heal the matter, as the claims are incompetent before it (lower court), this court will lack jurisdiction to entel1ain the present appeal. See Chief Bright Onyemeh & Ors. v. Lambert Egbuchulam (1996) 4 SCNJ 237 at 249; (1996) 5 NWLR (PI. 448) 255; and Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.
All what I have been labouring to state my Lords is that in the final analysis I hold that the appeal has merit. It is therefore allowed.
The judgment of the lower court, Federal High Court, Ilorin per Olayiwola, J., delivered on 26th July, 2005, is in its entirety set aside. N10,000.00 costs to the appellants herein against the respondents.
ABDULLAHI, J.C.A.: I have had the privilege of reading in a draft form the lead judgment of my learned brother Muntaka-Coomassie, JCA, just read and delivered in the open court.
I am in agreement with his reasoning and conclusions that the appeal is meritorious and must be allowed. By way of emphasis, I will make my own contribution.
This is an appeal against the judgment of the Federal High Court, Ilorin in a case No. FHC/CS/28/2001, delivered by P. F. Olayiwola (J) on the 26th July, 2003 in which the learned trial Judge granted all the reliefs claimed by the plaintiffs/respondents herein and specifically ordered the reinstatement of the plaintiffs to their posts as lecturers in the University of T1orin,the 3rd appellant with all the rights, entitlements and other perquisites of offices. The background facts are:
The respondents who were the plaintiffs in the lower court, issued a writ of summons against the appellants who were the defendants claiming many reliefs and order from the court. The appellants filed a statement of defence and by leave of the trial court amended the said statement of defence. The amended further statement of defence could be found at pages 161-167 of the record.
As can be gathered from the pleadings and evidence adduced by both parties, the case of the respondents was that, their appointments as lecturers with the 3rd appellant were terminated On account of their participation in strike action embarked upon by the Academic Staff Union of Universities (ASUU) nation wide and that due notice of suspension of the Local ASUU strike which was in progress and joining National ASUU strike was communicated to the appellants.
The respondents, even though no reason was given in the letters terminating their appointments alleged that their appointments were terminated on account of the strike action and disruption of examinations. The respondents further alleged that they were not heard on the allegations before their appointments were terminated.
The appellants’ case as the defendants before the trial court was that the letters of appointment contain the terms governing the contract of employment between the parties and that either of the respondents or the 3rd respondent could terminate the contract of employment in accordance with the terms stipulated in the memorandum duly signed by both parties.
The appellants before the trial court also contended that the court ought not to grant the reliefs of the respondents having regard to the fact that the Industrial Arbitration Panel had considered the issue of the appointments of the respondents and delivered an award infavour of the 3rd appellant.
On 26/7/2005, the learned trial Judge found for the respondents and granted all their claims. Aggrieved with the judgment of the learned trial Judge, the appellant expressed so by appealing to this court by filing a notice of appeal on the 27th July, 2005, which contains 9 grounds of appeal. The judgment of the trial court is on pages 215 – 244 of the record.
The appellants vide the leave granted by this court, on 13th February, 2006 filed a notice of appeal against the interlocutory ruling of the trial court delivered on 18th May, 2003. Leave was granted to consolidate the interlocutory appeal with the substantive appeal and argue both in the same brief of argument.
On 19th May, 2003, argument on the preliminary objection was taken and in a reserved ruling delivered by the learned trial Judge, he held that he is possessed with the requisite jurisdiction to entertain the case of the plaintiffs.
The appellants were dissatisfied with the ruling and especially on the point bordering on whether the proper forum for the determination of this case is not the National Industrial Court being matter connected with trade dispute and implementation of collective agreement.
The question to be asked at this stage is, what determines the jurisdiction of a court? It has been decided in a long line of decided authorities that, it is a fundamental principle that jurisdiction is determined by the plaintiff’s claim. It is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. In the case of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) P. 517 at p.
561, the apex court Per Oputa, J.S.C. held as follows:
“The jurisdiction of a court may be limited either by the amount or value of the property litigation or as to the type of subject-matter it call handle. Courts are creatures of statute and it is the statute that created a particular court that will also confer on it its jurisdiction. This may be extended, not by the courts, but by the Legislature for as this court observed in the African Newspapers of Nigeria Ltd. supra, it is part of the interpretative functions of our courts to expound the jurisdiction of the court but not to expand it. (P.561, para. B).”
Again, in the case of Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) p. 221 at 227, Oguntade, JSC, held thus:
“Jurisdiction is the blood that gives life to the survival of an action in a court of law, without jurisdiction the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. ”
Also, one of the indicia of jurisdiction as decided by the apex court in Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 at 595; (1962) 2 SCNLR 341 is that the subject-matter of the case is within the jurisdiction of the court. Jurisdiction may therefore imply the power or authority of a court to adjudicate over a particular subject-matter.
Having stated the law and all that, I now proceed to examine the statement of claim side by side with the relevant provisions of the Trade Dispute Act with a view to finding out whether or not the trial court was right in assuming jurisdiction. However, I do not intend to reproduce all the paragraphs of the statement of claim with the element of trade dispute for that has been efficiently done in the lead judgment. Nonetheless, the following paragraphs that consider germane, on this aspect of the cases are hereunder reproduced for careful examination and scrutiny and they are as follows:
“13. The plaintiffs also state that there was a clarion call from their (ASUU) National Secretariat directing all Academic Staff of Universities to participate in the said strike. The plaintiffs plead and shall rely at the trial on a letter dated April 14th, 2001 from the Union National Secretariat signed by their President to this effect.
14. The plaintiffs state that eventually, the Federal Government of Nigeria through its organ and agencies like the Federal Ministry/Minister of Education, National Universities Commission and Government Negotiating Team (at which 1st defendant was a member) but headed by Professor Ayo Banjo former Vice-Chancellor of University of Ibadan, negotiated with ASUU teams led by their President, Dr. Oladipo Fashina.
15. The plaintiffs state that the defendants victimized them by purporting to terminate their appointment during the said strike and thereby wrongfully and prejudicially disrupted (sic) their right to continue employment with the University. The plaintiffs state that this action is contrary to and against the agreement signed between Negotiating Team and ASUU that no one should be
victimized as a result of participation in the said strike.
16. The plaintiffs plead and shall rely at the trial all copy of the agreement signed by the Federal Government owners of the Universities and ASUU. Plaintiffs also plead copy of the three joint communiqu’C3’A9 issued and singed by Professor Ayo Banjo. JP. FNAL on behalf of Federal Government and Dr. Oladipo Fasina on behalf of ASUU. ”
It is pertinent to pause at this stage and ask, what is a trade dispute.
Trade dispute as defined in section 47(1) of the Trade Dispute Act (Cap. 432) Laws of Federation of Nigeria, 1990 to mean:
“Any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. ”
A hard look at the case of the plaintiffs/respondents as contained in their statement of claim, no doubt revolved around the employment or no employment of the respondents. This brings me to the examination of section 19( 1) of the Trade Dispute Act. The section provides thus:
“There shall be a National Industrial Court for Nigeria (in this part of this Act referred to as (“the court”) which shall have such jurisdiction and powers as are conferred on it by this or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith.”
And section 20(1) of the Act provides as follows:-
“20( 1) The courts shall, to the exclusion of any other court, have Jurisdiction –
(a) to make awards for the purpose of settling trade disputes; and
(b) to determine questions as to the interpretation of-
(i) any collective agreement,
(ii) any award made by an arbitration tribunal or by the court under Part 1 of this Act,
(iii) the terms of settlement of any trade dispute as recorded in any memorandum under section 7 of this Act. ”
The provisions of the two section set out supra are very clear and unambiguous and effect must be given to them. I am of the considered view that by virtue of the provisions of the said sections, the National Industrial Court has exclusive Jurisdiction to determine questions as to the interpretation of collective agreement and make award for the purpose of setting trade disputes. The learned trial Judge was wrong to assume jurisdiction in the case at hand which borders on trade dispute.
Learned counsel for the respondents strenuously argued that there is no dispute between the pat1ies as to the statutory nature of the plaintiffs’ employment with the University of Ilorin, the three appellants never canvassed that the plaintiffs/respondents appointments’ have no statutory flavour. Learned counsel then submitted that the defendants/appellants’ position that they can terminate their appointments summarily or without cause based on letters of employment and/or memorandum signed by them (plaintiffs) on assumption of office is completely wrong proposition of the law.
It is the contention of the learned counsel that the employment of the respondent being permanent and pensionable staff is governed by Unilorin Act and since they were sacked on ground of misconduct, i.e. disruption of examinations, they must be given the oppol1unity to defend themselves in accordance with section 15(1) of the Act.
Learned counsel for the appellants on the other hand, is of the view that assuming but not conceding the point that their appointment is governed by section 15(1) of the Unilorin Act, submitted that the respondents were given ample opportunity to defend themselves but turned it down. He referred exhibit 20 to buttress the point.
May, I say at this juncture that I am in complete agreement with the learned counsel for the respondents that they (respondents) are entitled to be given the opportunity to defend themselves before their appointments were terminated under section 15(1) of the Unilorin Act. There are long chains of decided authorities on this point. See the cases of Olaniyan v. University of Lagos (1985) 2 IWLR (Pt. 9) 599 at p. 62 and Eperokun and Ors v. University of Lagos (1986) NWLR (Pt. 34) 162 at 164.
However, that is not the end of the matter. The question to be asked is, were the respondents given the opportunities to defend themselves before their appointments were terminated? In the light of exhibit 20, this question must be answered in the affirmative.
It is clear from the said exhibit that the respondents were given the opportunity to defend themselves but for reasons which are difficult to comprehend decided not to avail themselves with it. The adage that you can take a horse to a river but you cannot force it to drink the water is apt in this case. Section 36(1) of Constitution of the Federal Republic of Nigeria talks of giving adequate opportunity to a person to defend himself. It does not provide for forcing or compelling a person to defend himself. Far from it. That being so I am of the strong view that the respondents were given an opportunity to defend themselves on the allegation of disrupting examinations but for reasons best known to them refused/or neglected to do.
In sum, for these reasons and the fuller ones stated in the lead judgment of my learned brother, Muntaka-Coomassie, JCA. I too allow the appeal and set aside the judgment of the lower court. I abide with the order on costs made in the lead judgment.
OGUNWUMIJU, J.C.A. (Dissenting): I have read very carefully the lead judgment just delivered by my learned brother Muntaka-Coomassie, JCA and with the greatest respect, I wish to depart from his views. The following are my reasons:
This is an appeal against the judgment of Hon. Justice, P. F. Olayiwola of Federal High Court, Ilorin delivered on 26th day of July, 2005 entering judgment in favour of the plaintiffs in respect of all the heads of their claim.
The appellants were the defendants at the trial court and the respondents were the plaintiffs. The facts which gave rise to this appeal are as follows:
The respondents were employed at different times in different departments as lecturers of the University of Ilorin (hereinafter called Unilorin). By letters admitted as exhibit 12 – 16 and dated 15th May, 2001, the appointments of the respondents were terminated by the appellants. The respondents, aggrieved by the action of the appellants, filed a writ of summons at the Federal High Court, Ilorin on 14th of August, 2001. The statement of claim was also filed the same day. An amended statement of claim was subsequently filed on 8/10/2003 by the respondents. The appellants by leave of court filed an amended statement of defence, later a second further amended statement of defence on 16/6/2004. The appellants claimed by paragraph 25 of their amended statement of claim the following:
“a. A declaration that the defendants’ letter dated 15th May, 2001 to the plaintiffs titled “Cassation of Appointment” purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires null and void and no effect whatsoever:
b. A declaration that the plaintiffs are still in the service of the 3rd defendant.
c. A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the pro-chancellor of the 4th defendant, and the 1st defendant.
d. A declaration that the defendants are not entitled to summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other relevant statutory as to discipline.
e. A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “Cassation of Appointment ” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and personable staff of the University.
f. A declaration that the contents of any purported letter of appointment or memorandum purportedly by the plaintiffs cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff on Unilorin and all other matters connected or pertaining thereto.
g. A declaration that the purported termination of the plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
h. An order setting the purported termination of plaintiffs appointment and nullifying the defendants’ letter to the plaintiffs in that regard.
I. An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
j. An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts as Lecturers in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February, 2001 till the day of judgment and thenceforth.” (Pages 6-7 of the records)
At the trial, the respondents called one witness who tendered several exhibits. The appellants also called one witness who tendered exhibits. The sole respondents’ witness was Dr. Taiwo Oloruntoba-Oju. He tendered the letters of appointment of the respondents as exhibits 6-10. He assel1ed that their employment was permanent and pensionable. He said that the respondents were sacked contrary to the University regulations because no query or disciplinary hearing was conducted. He tendered the letter of cessation of appointment all dated 15/5/2001 as exhibits 12- 16. He said no reasons were given in the letters for their appointments being terminated. He said there was an allegation heard from the news media that they disrupted the conduct of examinations. The University also published a bulletin exhibit 17 that the respondents disrupted examinations. He said the University Council deliberated on the allegations for which the respondents were never called to respond or react and sacked them. He claimed that they were victimized because they are officers of Academic Staff Union of Universities hereinafter referred to as ASUU. He was the Chairman, the 2nd plaintiff was the secretary, the 3rd plaintiff the treasurer, the 4th plaintiff the assistant secretary, the 5th plaintiff the co-ordinating secretary of the executive. He swore that there was the local ASUU strike to redress issues plaguing the University of Ilorin before they joined the National ASUU strike. He said the national strike led to improvement in the University system. The Federal Government asked the appellants to reinstate the respondents by exhibit 21 but the appellants refused to comply. He asserted that the appellants could not terminate their employments summarily. He conceded that the issue of the respondents’ termination went to the I.A.P. Mr. Marcel Eya Ogbonna, the sole appellants’ witness is the Chief Executive Officer Administration of the 3rd appellant. He said that even though exhibit 21 was not complied with by the appellants, the National Universities Commission hereinafter referred to as NUC did not sanction them. He said the National ASUU took the NUC to the Industrial Arbitration Panel who gave a decision in favour of the NUC against which the ASUU have not appealed. He maintained that the respondents were relieved of their posts in accordance with their memorandum of appointment. He was emphatic that the respondents were not sacked for disrupting examinations, for going on strike or for committing any offence.
He conceded that the respondents were not taken through any disciplinary procedure. After completion of hearing, both counsel addressed the court.
In a considered judgment, the learned trial Judge gave judgment in favour of the respondents and held as follows:
“In the light of the above, it is my decision that the plaintiffs are entitled to the reliefs asked for in
paragraph 25 clauses a – j.
The defendants are also hereby ordered to reinstate and/or restore the plaintiffs to their posts as lecturers in the University of Ilorin with all their rights, entitlements and other perquisites of their offices.
The defendants are also hereby ordered to pay to the plaintiffs all their salaries and allowances from February, 2001, till this day of judgment and thenceforth, This is my decision”
(Page 244 of the records)
The appellants being dissatisfied, filed an appeal against the judgment in this court. The appellants’ counsel’s brief of argument was filed on 21/2/2006. A reply brief to the respondents’ counsel’s brief was also filed on 6/4/2006. Alhaji Yusuf Ali, SAN moved the adoption of the briefs. Mr. Baiyeshea moved the adoption of the respondents brief dated 22/3/2006 and filed the same day.
The appellants’ counsel identified 3 issues for determination:
“1. Whether the learned trial Judge was not wrong when he held that the Federal High Court can entertain the case of the respondents when it was apparent from the statement of claim that, the case of the plaintiffs is rooted on industrial action and failure to abide by collective agreement between the Federal Government and Academic Staff Union of Universities (ASUU).
2. Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim.
3. Whether the case of the respondents was not caught by issue estoppel having regard to the decision and/or award delivered by the Industrial Arbitration Panel on the same subject matter.”
The respondent filed a reply brief and identified 4 issues for determination. They are stated as follows:
“1. Whether the learned trial Judge was rights in holding that the trial court had jurisdiction to entertain the plaintiffs/respondent’s case. Grounds 1 & 2 of the additional grounds of appeal.
2. Whether the learned trial Judge was right in holding that the appellants were wrong in terminating the plaintiffs ‘/respondents’ appointments (which appointments are of statutory nature) without giving reasons in the letters of termination – exhibits 12-16, when situations and circumstance disclosed in the exhibits tendered by the respondent at the trial clearly show that the respondents’ appointments were terminated for misconduct without the respondents being taken through due process as required by statute( s) that is S. 15 of University of Ilorin Act and exhibit 11. Grounds 2 & 3 of the original grounds of appeal.
3. Whether the learned trial Judge was right in holding that the plaintiffs’/respondents’ suit was not caught by, issue estoppel and that there was no valid award by the Industrial Arbitration Panel that could adversely affect the plaintiffs ‘/respondents ,case in any way whatsoever. Grounds 4 & 7 of the original grounds of appeal.
4. Whether the learned trial Judge was right in nullifying and setting aside the termination of plaintiffs/respondents’ appointments and granting all their reliefs including the order for their reinstatement to their jobs and payment of their accumulated salaries and allowances. Grounds 1, 5 & 6 of the original grounds of appeal ”
Respondents’ counsel raised preliminary objection to this appeal as follows:
“i. The respondents hereby raise preliminary objection to the effect that grounds 1, 5 and 6 of the original notice of appeal have not been covered by the three issues formulated by the appellants in their brief of argument.
ii. And the respondents shall contend in further preliminary objection that the arguments proffered in respect of the three issues formulated by the appellants did not cover the said grounds 1, 5 and 6 of the grounds of appeal in the notice of appeal dated 27th July, 2005 and filed same dated.”
Learned appellants counsel’s reply brief was mainly a reply to the preliminary objection raised by the respondents’ counsel in his brief.
I will in the determination of this appeal adopt the issues as formulated by the appellants’ counsel. They adequately cover all the grounds of appeal and are more specifically and contextually drafted. Issues 2 and 4 of respondents’ counsel are the same as issue 2 of the appellants’ counsel.
The respondents’ counsel raised a preliminary objection in their brief wherein they urged this court to strike out grounds 1,5 and 6 of the notice of appeal as none of the three issues formulated by the appellants covered them. He argued that in effect, the grounds are deemed abandoned and should be struck out. He cited the following cases: Morakinyo v. Adesoyero (1995) 7 NWLR (Pt.409) p. 602: Jibrin v. 8aba (2004) All FWLR (Pt. 220) p. 1319; (2004) 16 NWLR (Pt.899) 243; Khalil v. Yar’adua (2004) All FWLR (Pt. 225) p. 112 at 138, (2003) 16NWLR (Pt. 847) 446; Comex Ltd. v. Nigeria Arab Bank Ltd. (1997)4 SC 38 or4SCNJ38 at 52; (1997) 3 NWLR (Pt. 496) 643.
The appellants’ counsel in reply to the above argument urged this court to discountenance it as it is misconceived. He argued that the particulars set out in support of each ground of appeal were meant to elucidate and advance the reasons for the complaint on each ground. He cited Shanu v. Afribank (Nig.) Plc. (2002) 6 SCNJ 454 at 470-471; (2002) 17 NWLR (Pt. 795) 185. He argued that the issues covered all the grounds of appeal and none has been abandoned.
I have carefully read the grounds of appeal complained of and the issues formulated thereon. To my mind, issue 2 by the appellant adequately covers grounds 1,2,3,5 and 6 contained in the notice of appeal. The respondents’ counsel is light in his statement of the law that where no issue is formulated on a ground of appeal, the ground is deemed abandoned and should be struck out. See Comex Ltd. v. Nigeria Arab Bank supra at p. 52 of the SC report. However, that is not the factual situation here. Grounds 1, 5 and 6 and the particulars thereof linked them to issue 2. In Iwuoha v. NIPOST (2003) 4 SCNJ 258 at 278, Niki Tobi, JSC said:
“The essence of particulars is as the name implies, to particularize in specific language the grounds of appeal.
In other words, where the grounds of appeal are not explicit, particulars will fill the space by stating specific details.
The appellants’ counsel gave enough pat1iculars to substantiate the grounds of appeal and supplied whatever the respondents’ counsel’s imagined lacuna in the said grounds might be. The grounds were explicit enough and easily linked to the issue.
In the circumstance, my view is that the preliminary objection should be over-ruled as it is in fact misconceived and it is hereby dismissed.
Issue One: Whether the learned trial Judge was not wrong when he held that the Federal High Court can entertain the case of the respondents when it was apparent from the statement of claim that the case of the respondents was rooted in industrial action and failure to abide by collective agreement between the Federal Government and the ASUU. At the trial, the appellants had raised this issue in paragraph 1 of their amended statement of defence and urged the court to strike out the case. The argument on it was taken and the lower court gave a ruling on 19th May, 2003 as follows-
“I am persuaded by the argument of the respondents’ counsel that the termination was an executive act of the University of Ilorin and that the Federal High Court has jurisdiction in respect of this by virtue of section 251(1) p.q.r. of the 1999 Constitution.
I therefore reject the contention on behalf of the applicants that this suit is based on trade disputes in respect of which this court has no jurisdiction.”
(Pages 60 & 61 of the records)
The appellants’ counsel argued that the court must consider both the writ of summons and the statement of claim in the determination of whether a court is vested with jurisdiction to entertain a particular matter. He referred to Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) p. 517 at 549; Onuorah v. K.R.PC. Ltd. (2005) 6 NWLR (Pt. 921) p. 393 at 404. He referred to paragraphs 9-17 of the statement of claim which he argued show that the kernel of the respondents’ case at the trial court was the alleged termination of their appointments by the appellants as a result of their participation in a National strike by ASUU. The respondents had contended in their statement of claim that the termination was a flagrant violation or breach of the agreement signed between the Negotiating Team of the Federal Government and the officials of ASUU. He also cited Adelusola v. Akinde (2004) 12 NWLR (Pt.887) p. 295 at 312. He submitted that paragraphs 14-16 of the respondents’ statement of claim show that they brought a trade dispute before the trial court. He submitted that a trade dispute is defined in S. 47(1) of the Trade Disputes Act, Cap. 432 to mean-
Any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.”
He submitted that the respondents’ case at the lower court revolved around the employment or non-employment by the appellants. Thus, the Federal High Court is not vested with the requisite jurisdiction to entertain any matter that has to do with settlement of trade disputes. He submitted that only the National Industrial Court is vested with jurisdiction to determine a trade dispute by virtue of sections 19 and 20(1) of the Trade Disputes Act and effect must be given to these provisions since they are clear and unambiguous. He cited Araka v. Egbue (2003) 17NWLR (Pt. 848) pg. 1 at 21; Adewumi v. A.-G., Ekiti State (2002) 2 NWLR (Pt. 751) p. 474 at 512; Ajiebor v. A.-G., Edo State (2001) 5 NWLR (Pt. 707) p. 476 at 481; N.U.C. v. Oluwo (2001) 3 NWLR (Pt. 699) p. 90 at 102-103.
In reply to the argument of appellants’ counsel on this issue, the respondents’ counsel argued that it is the nature of the claim or reliefs sought by the plaintiff that determines the jurisdiction of the court and not necessarily the facts averred for the evidence that the plaintiffs would need to establish their entitlements to the said claims. He cited Sea Trucks (Nig.) Ltd. v. Ayo Pyne (1995) 6 NWLR (Pt.400) p. 166 at 179. He urged the court to agree with the reasoning of the learned trial Judge that S. 251(1) (p), (q) and (r) of the 1999 Constitution confers jurisdiction on the Federal High Court to determine any issue that arises consequent on an executive act of the University of Ilorin which is an agency of the Federal Government. He cited NEPA v. Edegbero & Ors. (2002) 12 SCNJ 173 at 183; (2002) 18NWLR (Pt. 798) 79. He argued that the nature of the respondents’ claims are declaratory and injunctive in nature and thus cannot be entertained by the Industrial Arbitration Panel or the National Industrial Court.
He submitted that only the Federal High Court has jurisdiction and is vested with powers to grant such reliefs. He argued that the National Industrial Court at present cannot grant the reliefs sought by the respondents in their claim and would have no jurisdiction to grant the claim. He cited Western Steel Workers Ltd. v. Iron Steel Workers Union of Nigeria (No.2) (1987) 1 NWLR (Pt.49) p. 284 (1987) 2 SC 11, (1987) 2 SCNJ at 16 which had been re-affirmed in Kalango & Ors. v. Dokubo & Ors. (2003) Vol. 16 WRN 32 at 49 as being the valid state of the law at present.
Learned counsel also referred to exhibit DW6 to show that the appellants’ defence team have changed positions on this issue as it suited them. He argued that at page 16 of exhibit DW6 the appellants’ counsel had claimed that the Federal High Court and not the I.A.P. had jurisdiction, whereas at the Federal High Court, the same set of advocates claim that it is the LA.P. and not the Federal High Court that is vested with jurisdiction.
It is trite that a court must have jurisdiction to exercise judicial powers over a dispute. See Kalu v. Victor Odili (1992) 5 NWLR (Pt.240) 130. The claim of the plaintiff determines jurisdiction. To determine the jurisdiction of a court over a claim, the totality of the averments in the statement of claim must be considered. See Adelusola v. Akinde (supra) at page 312 where Edozie, JSC said inter alia-
“To ascertain the plaintiffs’ claim it is necessary to examine not only writ of summons or the claim portion of the statement of claim but also other paragraphs of the statement of claim.”
On this issue, the learned trial Judge held as follows –
“I am persuaded by the argument of the respondents’ counsel that the termination was an executive act of the University of Ilorin and that the Federal High Court has jurisdiction in respect of this by virtue of section 251(1) p.q.r. of the 1999 Constitution.
I therefore reject the contention on behalf of the applicants that this suit is based on trade disputes in respect of which this court has no jurisdiction.
(Pages 60 & 67 of the records)
The thrust of the appellants’ counsel’s argument is that the totality of the respondents’ statement of claim shows that there was a trade dispute between the parties. I will set out verbatim the amended statement of claim at the trial filed on 8/10/2003.
“1. The plaintiffs are members of the Staff of University of Ilorin as Lecturers. Their appointment letter are hereby pleaded.
2. The plaintiffs’ appointments are confirmed and they enjoy the status of permanent and pensionable employees of the University of Ilorin. The plaintiffs plead their letters of confirmation.
3. The plaintiffs state that their employment with the 3rd defendant is statutory in nature and the University of Ilorin Act, Cap. 455 governs the terms of their said employment. The plaintiffs state also that as permanent and pensionable employees, the Pension Act of Nigeria is also relevant to their employment and status.
4. The first defendant is the Vice Chancellor of the 3rd defendant and the plaintiffs aver that the 1st defendant has worked tirelessly and in conjunction with the 2nd defendant and Chairman/Pro-chancellor of the 4th defendant to terminate the plaintiffs’ appointment with the 3rd defendant.
5. The plaintiffs state that they have been staff of the 3rd defendant until sometime in May, 2001 when the defendants circulated information to the whole world that the plaintiffs’ appointment had been terminated even before issuing out letters to that effect to them.
6. The plaintiffs plead and will rely at the trial on some daily newspapers such as Herald. Punch, Tribune and Comet of between 16 to 31st of May, 2001 wherein the press release issued by the defendants on the issue of the purported termination of plaintiffs’ appointment was reported.
7. The plaintiff state that the defendants in purporting to terminate their appointments claimed in their press release and information to the whole world which was published in some of the said newspapers that they (plaintiffs) allegedly disrupted exam illations in the University of Ilorin with Drs. Idowu Awopetu (OAU. Ile-lfe), Abraham Ojo (of FUT, Akure) on May 2, 2001.
The plaintiffs plead Unilorin Bulletin titled “Special Edition”, Vol. 5 No. 19 of May 17, 2001. The plaintiffs also plead copy of the defendants ‘press release issued on May 16, 2001 by one 1siaka Aliagan on this issue.
Defendants are given notice to produce same at the hearing of this case.
The plaintiffs having informed the whole world about this allegation of wrong doing against them, the defendant acted quite contrary to the provision of Unilorin Act by purporting to terminate their appointments without giving them the opportunity of being heard and thereby breaching their fundamental rights to fair hearing as enshrined the 1999 Constitution of Federal Republic of Nigeria and as such the termination of their appointment is null and void and of no effect whatsoever.
9. The plaintiffs state further that the defendants have punished and victimized them because they are officers and members of Academic Staff Union of Universities Unilorin Branch who have been opposed to the obnoxious and objectionable policies and style of administration of the 1st defendant ably assisted by the 2nd defendant and condoned painfully (but surprisingly) by the 4th defendant.
10. The plaintiffs state further that there has been protest inform of strike action by the Academic Staff Union (ASUU Unilorin) members since sometime ill February 2001 against the high handedness of the 1st defendant by which he has destroyed the career of nearly 50 academic staff of the University.
11. The plaintiffs aver further that their action local protest/strike action was suspended in April 2001 when the national strike by ASUU National commenced. The 1st plaintiff as Chairman of the Union at Unilorin ASUU wrote to the 1st defendant to intimate him of the said suspension of the local strike and commencement of the national strike. The plaintiffs plead and rely on the said letter dated 3rd April, 2001. The defendants are hereby given notice to produce the 1st plaintiff’s letter at the trial. The defendants in a letter signed by the 2nd defendant responded in a letter of 4th April, 2001 to the 1st defendant and acknowledged receipt of 1st plaintiffs letter and the commencement of the said national strike. The said letter is hereby pleaded.
12. The plaintiffs state that the defendants intimidated them by making them to suffer a lot of intimidation and deprivations as a result of their participation in the national strike which is their legitimate and constitutional right to do as members of ASUU. But the plaintiffs had to press forward in order that Unilorin shall not be isolated, in that what was being agitated and being sought from the Federal Government was for the benefit of Nigerian Universities including Unilorin and for better welfare of all staff including even the 1st and 2nd defendants who will invariably enjoy the fruits of the struggle.
13. The plaintiffs also state that there was a clarion call from their (ASUU) National Secretariat directing all Academic Staff of Universities to participate in the said strike. The plaintiffs plead and shall rely at the trial on letter dated April 14, 2001 from the Unions National Secretariat signed by their President to this effect.
14. The plaintiffs sate that eventually the Federal Government of Nigeria through its organs and agencies like the Federal Ministry/Minister of Education, National Universities Commission and government Negotiating Team (of which 1st defendant was a member) but headed by Professor Ayo Banjo former Vice-Chancellor of University of 1badan, negotiated with ASUU Team led by their President, Dr Oladipo Fashina.
15. The plaintiffs state that the defendants victimized them by purporting to terminate their appointment during the said strike and thereby wrongfully and prejudicially disrupted their right to continue employment with the University. The plaintiffs state that this action is contrary to and against the agreement signed between Negotiating Team and ASUU that no one should be victimized as a result of participation in the said strike.
16. The plaintiffs plead and shall rely at the trial on copy of the agreement signed by the Federal Government Owners of the Universities and ASUU. Plaintiffs also plead copy of the joint communique issued and signed by Professor Ayo Banjo JP, FNAL on behalf of Federal Government and Dr. Oladipo Fasina on behalf of ASUU.
The plaintiffs state that as a result of the peculiar and circumstances of University of Ilorin where the administration headed by 1st defendant is interested only in totally eliminating 100 members of the academic staff and denying them of their only means of livelihood and possibly drive them to extinction for participation in the national strike over which they were purportedly sacked, the Federal Government through the National Universities Commission had to write a letter to the effect that the purportedly sacked teachers be recalled.
18. The plaintiffs plead and shall rely at the trial on letter dated 29th June, 2001 from NUC with ref No. UNC/ES/261 and signed by Professor Munzali Jibril, OFR. Executive Secretary to the Pro-chancellor of 3rd defendant and copied to 1st defendant. The plaintiffs shall also rely on the list of affected staff attached to the said letter and same is hereby pleaded. The defendants are given notice to produce their copy at the trial.
19. The plaintiffs state that the said letter directed the defendants to reverse their action in purportedly sacking the plaintiffs. The plaintiffs state that at the University of Nigeria. Nsukka (UNN) where a similar situation existed with only 2 academic staff being affected, the Authorities there have complied with the said letter by reinstating the 2 Academic Staff. But the defendants have been obstinate and have refused to comply with the said letter.
20. The plaintiffs have instead written what they term to the “Important Information to members of University Community” ref No. UI/RO/P7 dated 12th July, 2001 and signed by the 2nd defendant in which they have stated that the plaintiffs will not be reinstated. The said document is hereby pleaded and defendants are given notice to produce their copy at the trial of this case.
The said document was copied to various persons, offices and notice boards within the university and plaintiffs have a copy which they will rely upon at the hearing of this case.
21. The plaintiffs shall contend at the trial that ab initio the defendants took the wrong step in purporting to terminate their appointments without following due process of law and the plaintiffs shall also contend that the defendants cannot rely on letters of employment or so-called memorandum to override, breach or sideline the clear provisions of Unilorin Act of appointments, promotion and discipline of staff.
22. The plaintiffs states that even though the defendants claimed to have purportedly terminated the plaintiffs’ appointments on 15th May, 2001 the letters were not received until sometime in June, 2001 and the plaintiff’s state that since they were not employed on the pages of newspapers or through radio, they did not expect that the defendants will act in outdated military fashion by purporting to terminate their appointments most irregularly. And the plaintiffs claim that the defendants purportedly terminated their appointments for the same cause and under the same circumstances and situation.
23. The plaintiffs state further that being confirmed employees of defendants of permanent and pensionable status their appointments cannot and should not be summarily terminated by the defendants except by, strict compliance with relevant statutory provisions, which the defendants have now violated with impunity and the plaintiffs shall crave in aid all relevant Laws, Acts and statutes at the hearing of this case.
24. The plaintiffs shall rely at the trial all other documents to further establish that the defendants actually sacked the plaintiffs for the allegation of disrupting examination in May 2001 without giving the plaintiffs the opportunity, of being heard at all and without subjecting them to due process. The said documents are memo of 14/5/2001 from the Registrar to the Vice-Chancellor, Official Query of Obafemi Awolowo University O.A. U. dated 2nd July, 2001 to Dr. J. I. Awopetu on same subject of alleged disruption of examination at Unilorin; another letter of 21st August, 2001 by OAU to Dr J. I. Awopetu with an attachment being the official report of Unilorin authorities to authorities of OA U on the same matter of alleged disruption of examination at Unilorin on 2nd May, 2001 and the alleged role of Dr. J. I. Awopetu; Unilorin Bulleting of August 24, 2001, ISSNO 331, Vol.5 No.26 particularly at page 3 thereof And other relevant documents.
25. Whereof the plaintiffs claim against the defendants are as follows –
a. A declaration that the defendants’ letter dated 15th May, 2001 to the plaintiffs titled “cessation of appointment” purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires, null and void and of no effect whatsoever:
b. A declaration that the plaintiffs are still in the service of the 3rd defendant.
c. A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 20th June, 2001 with ref NUC/ES/261 to the Pro-chancellor of the 4th defendant, and the 1st defendant.
d. A declaration that the defendants are not entitled to summarily terminate the plaintiffs’
appointments without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other relevant statutory as to discipline.
e. A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.
f A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiff, cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other mailers connected or pertaining thereto.
g. A declaration that the purported termination of the plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
h. An order selling aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letter to the plaintiffs in that regard.
i. An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with ref No. NUC/ES/261 to the defendants to reinstate the plaintiffs.
j. An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts as lecturers in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of judgment and thenceforth.”
(Pages 74-48 of the records)
It is not in dispute that the 3rd appellant being a creation of an Act of the National Assembly is an agent of the Federal Government.
See Akeem v. Unibadan (2003) 10 NWLR (Pt. 829) page 584 at pg. 596,601. It is also not in dispute that the 1st, 2nd and 4th appellants derive their powers from the 3rd appellant. Not only that, it is also not in dispute that the cause of action arose out of the administrative action or executive decision of the appellants.
Section 251(1)(r) of the 1999 Constitution is reproduced as follows –
“(r) Any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The present action is for declaratory and mandatory orders challenging the executive action of the appellants and the principal purpose of these reliefs is to nullify the executive decision of the appellants. In such a case, the action to my mind, would come within the provisions of S. 251(1)(r) of the 1999 Constitution. See Ogundare, JSC in NEPA v. Edegbero & Ors. (supra) at page 183 of the SCNJ report. See also Akpabio, JCA in Sea Trucks v. Aya Pyne where the Court of Appeal in similar circumstances held that the case of wrongful dismissal of individual workers should not be treated as a trade dispute. Akpabio, JCA further posited that if this door is opened, and an ordinary claim for wrongful dismissal is allowed to be turned into a trade dispute, it would open a floodgate of litigation to the Industrial Court which had no power to grant declaratory orders. The case of the respondents at the trial court was to my mind a challenge of the 3rd appellant’s unlawful neglect of the provisions of the Unilorin Act by which it was created and from which it derived its powers. Averments in the pleadings taken out of context cannot erase that issue of law and fact. A careful reading of the whole statement of claim clearly shows that the reliefs sought were declaratory in nature, notwithstanding paragraphs 9-16 which seek to adduce reasons why the respondents’ appointments were terminated and why it should not be so. The establishment and jurisdiction of the National Industrial Court is as stipulated in S.19(1) and S. 20(1) of the Trade Disputes Act, Cap. 432, Laws of the Federation, 1990. They are stated below:
“19( 1) There shall be a National Industrial Court for Nigeria (in this part of this Act referred to as “the court”) which shall have such jurisdiction and powers as are conferred on it by this or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith.
20(1) The court shall, to the exclusion of any other court, have jurisdiction –
(a) to make awards for the purpose of settling trade disputes; and
(b) to determine questions as to the interpretation of-
(i) any collective agreement;
(ii) any award made by an arbitration tribunal or by the court under Part I of this Act;
(iii) the terms of settlement of any trade dispute as recorded in any memorandum under section 7 of this Act.”
Oputa, JSC in Western Steel Workers Ltd. v. Iron Steel Workers Union (No.2) (supra) at p. 17 of the SCNJ report was the opinion that –
” … the fact that the plaintiffs in their writ and statement of claim mentioned the Labour Act, 1974 does not automatically and ipso facto make their dispute with the respondents one cognizable only by the National Industrial Court …”
Suffice it to say, the nature and scope of the powers of the Industrial Court as spelt out in the Trade Disputes Act and interpreted by the Supreme Court in Western Steel v. Iron Steel remained valid at the time the cause of action arose in this case. By that Act, the Industrial Court can only make awards and determine questions as to the interpretation of the three types of documents specified. See Ikongbeh, JCA in Kalango & Ors. v. Dokubo & Ors. supra.
Learned respondents’ counsel also raised the issue of the inconsistency in the position taken on this issue by legal counsel representing the appellants at the IAP and the trial court. The appellants’ solicitors had argued at the IAP that it is an abuse of court process to refer a matter pending before a superior court to an inferior tribunal. See page 17 paragraph 4 of exhibit DW5. This is very unfortunate. I am of the view that the National Industrial Court did not have jurisdiction over the claims of the respondents at the lower court and the case was properly brought before the Federal High Court. The 1st issue is resolved against the appellants.
Issue 2: Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim.
On this issue, learned appellants’ counsel submitted that the terms that govern the employments of the respondents with the 3rd appellant are as clearly set out in their letters of appointment and memoranda as to terms of appointment – Exhibits 1-5 and exhibits 28,29 and exhibit DWI respectively. He argued that on the face of exhibits 12-16 the letters terminating the appointments of the respondents, their appointments were terminated in accordance with the rights conferred on the appellants to so do by the terms of the contract expressly stated in the letters of appointment and memoranda as to terms of appointment. He argued that since there was no allegation of misconduct on the face of the letters of termination, the court cannot rely on extraneous material to come to the conclusion that the respondents’ appointments were terminated for misconduct. He cited Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) p. 589 at 630; U.B.N Ltd. v. Ozigi (1994) 3 NWLR (Pt.333) p. 385 at 400. The latter case in support of the contention that extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument in accordance with S.32(1) of the Evidence Act. He cited also Comptoir Comm. & Ind. Ltd. v. O.G.S.C. (2002) 9 NWLR (Pt.773) p. 629 at 654-655. He also cited interestingly Oputa, JSC in Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) p. 599 at p. 621 wherein His Lordship held –
“If there was no finding that the appointee is being removed on the ground of misconduct, then the employment of the appointee is terminable by six months’ notice or six months’ salary in lieu of notice according to clause 6 of the agreement.”
He submitted that exhibits 17, 18, 19 and 20 relied upon by the trial Judge to come to his conclusion that the appointments of the respondents were terminated for misconduct are extraneous.
In reply, learned respondents’ counsel submitted that there is no dispute as to the statutory nature of the respondents’ employment with the 3rd respondent. He argued that exhibit 11, the Senior Staff Regulations of the University and S. 15 of the Unilorin Act itself provide that the employment of the respondents cannot be terminated without due process. He cited Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599; Eperokun & Ors. v. Unilag (1986) 4 NWLR (Pt. 34) p.162; (1986) 7 SC (Pt.) p. 106. He submitted that both cases were rightly relied upon by the learned trial Judge to arrive at the conclusion that the appellants were wrong to have sacked the respondents without taking proper disciplinary measures.
The learned trial Judge held as follows on this point –
“The sum total of the above is that although the defendants did not state any reason for the termination of the appointment of the plaintiffs, the plaintiffs were actually terminated for a cause i.e. disrupting examination of the students, which requires a hearing which was not made available to them.
I would therefore hold that the plaintiffs have been denied fair hearing by the defendants in this action.”
(Page 240 of the records)
The relevant paragraphs of the letter of appointment of the respondents and the memoranda duly executed containing the terms of their appointments would be reproduced hereunder: Paragraph 3 of the letter of appointments of the respondents provides thus-
The appointment may be terminated by either party giving three months notice in writing or paying three months salary in lieu of notice provided that the termination of appointment shall not be earlier than 30th September in any year and that in the event of any act or omission, which the University may adjudge willful misconduct on your part, the University may terminate the appointment summarily, without notice or salaries in lieu. ”
Paragraph 6 of the memorandum as to terms of the appointment duly signed by the respondents also contain similar provision to wit “Neither the University nor the Assistant Lecturer shall terminate the appointment without having given three months’ notice in writing of the intention to do so, or having tendered payment of three months salary in lieu of notice. ”
The crux of the issue at hand is the question that having regard to the facts and circumstances of this case, can it be said that the respondents were not sacked by the appellants for misconduct notwithstanding that exhibits 12-16 the “cessation letters” were silent on any reason?
Both the Unilorin Act and Revised Senior Staff Regulation exhibit 11 made pursuant to it do not contain the provisions for unilateral termination of appointment by either patty upon notice being given.
In fact, the introductory/ preliminary section of the regulation exhibit 11, is to the effect that all contracts made between the University Council and its senior staff should contain a provision that the terms and conditions therein are subject to the provisions of the Act, the statutes and regulations of the University. Clause 1.1.3 states as follows –
“A member of staff shall hold office on such terms and conditions of services as may be set out in any contract in writing between him and the University such contract being signed on behalf of/he University by the Registrar or by such other persons as may be authorized for that purpose by the University, and any such contract shall contain or be deemed to contain a provision that the terms and conditions therein specified are subject to the provisions of the Act, the statutes and regulations of the University.”
Olaniyan v. Unilag is a case with facts similar to the facts of this case. Therein University authorities sought to terminate the appointments of senior academic staff by the mere issue of six months’ notice and payment of salary in lieu of the said notice. They refused to state that the termination of appointment was ignited by the recommendations of the visitation panel before whom the appellants were never brought to defend themselves. S. 15 of the Unilorin Act is in pari materia with S. 17 of the Unilag Act, the effect of which was the fulcrum of the case in Olaniyan v. Unilag.
The Justices of the Supreme Court in Olaniyan v. Unilag were unanimous in holding that where there was no imputation of misconduct, the University could terminate the employment of their senior staff after the requisite notice. However, where there is any allegation or imputation of misconduct, the provisions of S. 17 of the Unilag Act and regulations made thereunder must be followed. See the lead judgment of Oputa, JSC in Olaniyan v. Unilag at page 621 of the NWLR. Also Obaseki, JSC, in Eperokun v. Unilag held on page 137 of the Supreme Court report:
“It cannot be silent on the misconduct and use it as a ground for removing him. Section 17(1) of the Act makes it mandatory, on the council to give notice of those reasons to the person in question. Thus, failure to give reasons for the termination when there are circumstances loudly proclaiming the reasons affords no sanctuary. ”
At page 618 of the NWLR in Olaniyan’s case, Oputa, JSC held that;
“The point being made here is that both the regulations governing service in the University especially its paragraph 15 dealing with termination by the University and each memorandum as to the term of appointment of each appellant especially Clauses 6 and 7 thereof must be consistent with the powers expressly given to the University and the University Council by section 17 of the Act No.3 of 1967 otherwise those regulations and the memoranda will be inconsistent with the source of their power and therefore null and void. ”
The learned Justice Oputa held further at paragraphs G-H of page 618 of the same Law Report of the same case that:
“This case must therefore, of necessity, revolve around section 17 of the Act and cannot be determined without reference to S. 17 which is the only section that can give life and validity to the regulations and the agreements exhs. P1, P18 and P12A. It is therefore a very material error in law to decide the termination of the appointments of the appellants without reference to section 17 of the Act No.3 of 1967.”
The 3rd and 4th appellants acting under the hands of the 1st and 2nd appellants are creations of the Unilorin Act and they must not act except within the four walls of the statute creating their positions. Any agreement outside the statute is ultra vires the statute.
The question here is, whether or not in the circumstances of this case, the appellants could act outside the provision of the Unilolin Act. As said earlier, if there was no allegation or imputation of misconduct, they could so act, but if there was, they were bound to act within the stipulations of S. 15 of the Unilorin Act.
The provisions of S. 15(1) of the Unilorin Act states as follows-
“15( 1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University, other than the vice-chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall-
(a) give notice of those reasons to the person in question;
(b) afford him an opportunity of making representations in person on the matter to the council; and
(c) if he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements –
(i) for ajoint committee of the council and the senate to investigate the matter and to report on it to the council, and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter;
(iii) and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council. ”
The contents of the letters written by the appellants to the respondents – Exhibits 12-16 are dated the same day, headed “cessation of appointment” and all substantially state as follows –
“Cessation of Appointment
I am to inform you that the University does not require your services any longer and, in tune with your letter of appointment ref No. UI/SSE/PF/1910 of 24th February, 1987 and the memorandum of appointment which you signed on 4th March, 1987 you will be paid three months salaries in lieu of notice. ”
The case of the appellants is that the respondents were sacked because their services were no longer required. The respondents however led evidence to show that that was not the case. The respondents tendered exhibits 17, 18, 19 and 20 to prove that the reason for terminating their appointments despite all pretensions to the contrary was the allegation of willful disruption of examinations and participating in the strike action. Exhibit 17 was a bulletin circulated by the University in which it was claimed that the respondents were sacked for disrupting examinations. Exhibit 20 is the minutes of the meeting of the 4th appellant held on 15th May, 2001. The 2nd item treated and the minutes spanning paragraphs 5444 to 5450 wherein the “report of the administrative fact finding committee on the physical disruption of the end of semester examinations by some ASUU officials on Wednesday 2nd May, 2001” was considered and the decision taken that the appointment of the respondents be terminated. It is obvious at least to me and I share the view of the learned trial Judge that there are circumstances not only suggesting but shouting from the rooftops and proclaiming that the respondent were sacked for disrupting end of semester examinations. The silence in their letters of termination notwithstanding, if willful disruption of semester examinations is not a misconduct, then I wonder what is.
When the mandatory procedure set out by statute is not complied with, any disciplinary action taken by the appellants against the respondents must be declared null and void. I agree with the learned trial Judge that it is wrong for appellants to argue that the fact that the parties signed the memorandum of agreement makes their agreement a mere matter of master and servant under common law. In Bamigboye v. Unilorin supra where the purport and implication of S. 15 of the Unilorin Act was exhaustively discussed and decided upon, Onu, JSC in the leading judgment in Bamigboye v. Unilorin held obiter at page 316 of the SCNJ report that-
“Section 15 of the University of Ilorin Act confers on the University staff a “Special status” over and above the normal contractual relationship of master and servant. Consequently, the only way to terminate such a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute i.e. in the case in hand, the University of Ilorin Act. ”
At no time were the respondents called to defend themselves in accordance with the provisions of S. 15 of the Unilorin Act.The full court of seven Justices of the Supreme Court in Eperokun v. Unilag held unanimously per Irikefe, CJN reading the leading judgment:
“The appellants were entitled to be heard, at least this was the view taken in Ridge v. Baldwin (1964) A. C. p. 42 on which the learned Judge had sought to rely. The conduciveness of the atmosphere within the university at the time for a hearing is an irrelevant matter, the law intended and the courts should ensure that entrenched rights are not tossed carelessly out of the window.
In my view, constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the spectre of misconduct hanging over his head without being given an opportunity of clearing his name. ”
(See page 122 of the SC report)
To my mind, in public employment, where the employee is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should be, in the interest of justice, a presumption that the employment cannot be terminated by mere notice, but should be terminated only for misconduct or other specified reasons. To terminate an employee on a permanent status and deprive him of all the pension and other rights offered by the express terms of the contract, is not a right which the parties must have intended the master to have and one which no reasonable person could have contemplated he would claim.
When a misconduct has occurred, the provisions of S. 15 of the Unilorin Act must be followed to the letter. In this case, the provisions were sidetracked while the decision to terminate the respondents’ appointments was taken and implemented by the appellants. The learned trial Judge was right in coming to the conclusion that the appellants wrongfully terminated the respondents’ appointments without complying with the provisions of S. 15(1) of the Unilorin Act. See also A.B.U v. Molokwu (2003) 9 NWLR (Pt.825) pg. 265 at pg. 284.
In the circumstances, the appellants cannot be allowed to ignore the law that created them and hide behind the letters of appointment and to terminate the appointments of the respondents without due process as outlined by
S.15 of the Unilorin Act.
My humble opinion is that in view of the foregoing, there is no way the termination of the respondents’ appointments in this case can be lawful without recourse to section 15(1) of the Unilorin Act, Cap. 455, Laws of the Federation of 1990. The matter cannot be limited to the letters of appointments and memoranda as claimed by the appellants. This is because the right to exercise summarily terminate the respondents’ appointments by payments of salaries in lieu of notice which the appellants claim they have done by exhibits 12-16 will make those exhibits to be inconsistent with section 15 of Unilorin Act and therefore void.
The 2nd point made on this issue by learned appellants’ counsel is that there was evidence to show that the respondents were offered opportunity to defend themselves before their appointments were terminated. Learned counsel relied on page 5 paragraph j of exhibit 20 which states as follows –
“(j) The ASUU members involved in the disruption of the Wednesday, May 2,2001 second semester examination were invited and given ample opportunity affair hearing which they turned down. ”
He relied on Bayo v. Njidda (2004) 8 NWLR (Pt. 876) p. 544 at pg. 622 to submit that all documents tendered in evidence must be scrutinized by the court to ascertain its evidential value and to conclude that the respondents were given an opportunity to be heard. He cited F.BN Plc. v. Excel Plast Ind. Ltd. (2003) 13 NWLR (Pt.837) p. 412 at 448 and said all documents must be examined and considered as a whole. He urged the court not to rely on the oral evidence of the respondents and to hold that exhibit 20 – documentary evidence tendered by them show clearly that they were given opportunity to be heard. He cited Fagunwa v. Adibi (2004) 17NWLR (Pt.903) p. 544 at p. 567; Owhonda v. Ekpechi (2003) 9 SCNJ 1 at 19; (2003) 17NWLR (Pt. 849) 326. He submitted that the evidence of exhibit 20 is an admission against interest by the respondents and the trial court ought to have used this evidence led by the respondents to demolish the respondents’ case. He cited Iheanacho v. Chigere (2004) 7 SCNJ 272 at 284; (2004) 17 NWLR (Pt. 901) 130. He submitted that the respondents were not able to succeed on the strength of their own case and the claims should have been dismissed. He cited Oduwole v. LSDPC (2004) 9 NWLR (Pt. 878) p. 382 at 400-401.
Learned respondents’ counsel on this point vehemently protested this change of gear by the appellants’ counsel and urged this court to resist what he calls a bizarre and unjust argument. He argued that no evidence whatever was led in support of the imaginary fair hearing now claimed to have been conducted by the appellants.
He urged the court to discountenance the appellants’ round about turn and to hold that they cannot make a different case from what they made at the trial court. He cited Akuneziri v. Okenwa (2000) 12 SCNJ 242 at 267.
This point is about face by the appellants who never canvassed it at the lower court and whose case at the trial court is diametrically opposed to the position now being canvassed by them.
Issues were never joined in fact or in law over this. The case of the appellants at the trial court was that the respondents were sacked for no other reason than that their services were no longer required.
Then when and where did the issue of being heard over allegation of misconduct surface? The appellants cannot make a different case from the case they made at the trial court. See Societe Generale France v. Societe Generale Bank (Nig.) Ltd. (1997) 4 SCNJ 60, (1997) 4 NWLR (Pt.497) 8; Akuneziri v. Okenwa (2000) 12SCNJ 242 at 267; (2000) 15 NWLR (pt.691) 526 and Kwajaffa v. Bank of the North (2004) 5 SCNJ 121 at 136-137 where Musdapher, JSC said-
“The case of the appellant as argued in the Court of Appeal must be consistent with the case on appeal to the Supreme Court. The Supreme Court will not allow a party to put up a different case from the case it had put up at the Court of Appeal without leave …”
The whole convoluted argument made by appellants’ counsel on this point is with respect merely self-serving and cannot be held up to scrutiny. How on earth can a document made by an adversary with no impute at all by the party who tendered it be taken as admission against self-interest by the party who tendered it? There is absolutely no admission by the respondents on this point. Quite the contrary. The document was tendered to prove that the appellants acted without hearing the respondents at all. It is my opinion that the document proved that issue of fact. Anyone can write in a report whatever they wish to write in spite of the factual situation on ground.
The gravamen of the respondents’ claim is that they were not given fair hearing. The doctrine of fair hearing and the rules of natural justice are not fanciful or esoteric. They are based on practical substantial doctrine and should be so implemented. The maker of exhibit 20 is the 4th appellant who claimed therein to have “heard” the respondents before they were sacked.
The appellants did not plead or prove any form of communication inviting the respondents to answer to the allegation against them. They did not plead or prove the where and when of the Council’s “hearing” in respect of the allegation of disrupting examination made against the respondents. There are clear and acceptable standards required by law for there to be fair hearing: see Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 617 where the court per Oputa, JSC held at paragraphs E-F that-
“Another but related view is that fair hearing (even in an Administrative Board or a Disciplinary Investigation Panel as the one set up by the Vice-Chancellor in this case) implies the right in the appellants to know what and what were being alleged against them; what evidence has been given; and what statements had been made affecting them; and they must be given a fair opportunity to correct and contradict such evidence. It also follows that the panel must not hear evidence, or receive representation behind their backs …
DW 1 said the respondents were never heard on the matter. There is absolutely no evidence that the respondents were arraigned before the Senior Staff Disciplinary Committee, the Senate or the Council before their appointments were terminated. Thus the appellants were in complete violation of the rules of natural justice as entrenched in the 1999 Constitution and as embodied in S. 15(1) of the Unilorin Act. S. 15(1) states the step by step procedure to be adopted when disciplinary measures are taken against a senior administrative or academic staff. For reasons given above, the 2nd issue is resolved against the appellants.
Issue Three: Whether the case of the respondents was not caught by issue estoppel having regard to the decision and/or award delivered by the I.A.P. on the same subject matter.
The appellants’ counsel argued on this point that DW1 tendered the letter from Hon. Minister of Labour and Productivity of 20/5/2003 to the Chairman Industrial Arbitration Panel on Trade Dispute.
The letter was admitted and marked as exhibit DW2. The various processes filed and exchanged by ASUU and Federal Government were admitted as exhibits DW3, DW4, DW5. The panel eventually made an award and exhibit DW6 is the notice of objection to the award while exhibit DW7 is the letter from Minister of Labour and Productivity in which the award was said to have been set aside.
Learned appellants’ counsel further argued that the Industrial Arbitration Panel (IAP) considered several matters in which the issue of the termination of appointments of the respondents featured
prominently was considered by the panel.
He submitted that the learned trial Judge having found as a fact that an award was made on the same subject matter by the Industrial Arbitration Panel, the learned trial Judge ought to dismiss the case of the respondents and/or strike it out.
He submitted that in the same vein, that there is nothing in the Trade Disputes Act, Cap. 432, Laws of Federation, 1990 which empowers the Honourable Minister to withdraw the award. What the Minister is empowered to do is either to refer the award back to the Arbitration tribunal or where there is objection to the award, refer the dispute to the National Industrial Court, otherwise, the Minister must confirm the award. He referred to sections 12 and 13 of the Trade Disputes Act.
He also submitted that it will amount to an abuse of judicial process if the same subject matter that has been determined by the Industrial Tribunal is also being decided by the trial court, especially when the processes and the facts showing that the issue had been determined by the Industrial Arbitration Panel were before the trial court. He cited Balogun v. Adejobi (1995) 1 SCNJ 242; (1995) 2 WLR (Pt. 376) 131; Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) p. 156 at 184; Nwopara Ogbogu v. Nwonuma Ndiribe (1992) 6 NWLR (Pt. 245) p. 40.
Learned respondents’ counsel on this point was emphatic in his argument that the ‘award’ which the appellants are using as a ‘previous decision’ was not tendered by the appellants at the lower court. Thus they failed to discharge a very important burden of proof. He cited Saimoua v. Ilesanmi (2001) FWLR (Pt.54) p. 373 at p. 382. He submitted that the IAP is incapable of giving a final decision on the matter between the parties.
The learned Judge of the trial court held at pages 240-242 of the records:
“As for the issue whether the dispute at the IAP was between the same parties in this case and at the IAP, the trial Judge also had no difficulty in holding that the suit before him at the Federal High Court was between their employers on a Contract of service and therefore different from the dispute between the Federal Government and National ASUU at the IAP The documents exhibits DW1, DW2, DW3, DW4, DW5, DW6 and DW7 clearly show that the parties to the dispute and issues submitted at IAP are different from the parties and issues involved in this case and DW1 confirmed this in his testimony under cross-examination. The witness admitted that University of Ilorin and the plaintiffs were not parties to dispute at IAP ”
When a plea of issue estoppel is raised by a defendant as in this case, it is to bar a party from re-litigating an issue conclusively decided in a previous suit in a latter suit. See: Milad, Benue State v. O. P. Ulegede (2001) 10 SCNJ 43; (2001) 17 NWLR (pt. 741) 194.
Thus, issues raised by the same parties or privies on the same subject matter and settled in a previous suit before a court of competent jurisdiction will not be entertained. See Chief Agbaka v.Chief Jeremiah Amadi (1998) 7 SCNJ 367, (1998)11 NWLR (Pt.572) 16SC; Ezekiel Adedayo v. Alh. Yakubu Babalola (1995) 7 SCNJ 306, (1995) 7 NWLR (Pt. 408) 383.
The finding in a suit which operates as estoppel should not be treated as if the case is being brought up for review on appeal. It is the duty of the court before whom it is brought to give effect to it, not depart from it or question its finality. See: Archbold Ebba v. Chief Warri Ogodo (2000) 6 SCNJ 100, (2000) 10 NWLR (Pt. 675) 387.
Estoppel by record inter parties includes issue estoppel which applies to points of law or facts and mixed law and facts. See Chief Sampson Okon Ito v. Chief Okon Udo Ekpe (2000) 2 SCNJ 91, (2000) 3 NWLR (Pt. 650) 678.
The question here, is whether the appellants herein could use the proceedings and findings of the IAP as a shield against the suit brought by the respondents at the lower court.
It is important to note that the issues before the IAP were:
(a) Denial of rights of students to lectures since December 2002.
(b) Withholding of students examination result since March 2002
(c) Insistence on reinstatement of 44 sacked lecturers of the University of Ilorin.
(d) Insistence on definite annual allocation to the Universities over the next five years.
It is important to note that the proceedings and findings of the IAP were never tendered at the trial court.
In my humble view, the issues and parties at the IAP are quite different from the ones before the lower court. The case before the trial court was a case of master and servant and was initiated years before the case at the IAP which was between the Federal Government and National ASUU. The latter action was a trade dispute while the case at the lower court was not. The relevant considerations when issue estoppel is brought up, is the statements of claim of the parties in respect of the two cases. The claim of the respondents at the trial court was for declarations on points of law and mandatory orders compelling the appellants to do certain things which are outside the purview and powers of either the IAP or the National Industrial Court. See Western Steel Workers Ltd. v. Iron & Steel Workers Union (No.2) (1987) 1 NWLR (Pt. 49) 284; Kalango v. Dokubo (2003) WRN Vol. 16. pg. 32 at pg. 49. Thus the ‘decision’ of the IAP which does not have the force of declarations, mandatory, injunctive or possesory orders in favour or against a party cannot form issue estoppel.
Moreover, where there is submission that there is issue estoppel, there is need for the issues in the present case to be directly in issue in the previous suit relied upon, not collateral or incidental thereto. See: Ezewilhe Ikoku v. Reuben Ekeukwu (1995) 7 SCNJ 180, (1995) 7 NWLR (Pt.410) 637 SC. From the exhibits tendered at the trial court, the issue of the termination of appointment of the Ilorin lecturers was not the main issue decided at the IAP. By letter dated 31/3/04, ASUU objected to the award. By another letter exhibit D44 dated 21/8/04, the award was withdrawn by the Minister and the matter sent back to the IAP for reconsideration.
In any event, the case of master and servant brought before the lower court was first in time. The amendment made by the appellants to their statement of defence bringing up the matter of issue estoppel was filed on 11th of December 2003, more than two years after the cause of action in respect of this case arose. It cannot thus come within the definition of ‘previous decision’ on the issue. The IAP is not a court with concurrent or superior jurisdiction to the Federal High Court. It is in fact an inferior tribunal to which the Federal Government and the national body of the ASUU later resolved to settle their protracted dispute. My humble opinion is that the appellants cannot use whatever decision or consequence of the decision arrived at the IAP as a retroactive bar to litigation by the respondents in the circumstances of this case. See Ikeni v. Efamo (2001) 5 SCNJ 144, (2001)10 NWLR (Pt.720) 1; Ebba v. Ogodo (2000) 6 SCNJ 100, (2000) 10 NWLR (Pt.675) 387.
In the circumstances, the 3rd issue is resolved in favour of the respondents.
For all the reasons given above, this appeal completely lacks merit and it is hereby dismissed. I award N10,000 costs against the appellants for the respondents.
Appeal allowed.
Appearances
Alhaji Yusuf O. Ali, SAN (with him, Mr. K. K. Eleja, S. A.
Bello, B. Akintunde [Miss] and N. Uregbulam [Miss]) For Appellant
AND
Mr. John Olusola Baiyeshea (with him, Dayo Akinlaja, Funke Abolarin [Miss],
Wahab Ismail, Uloma Alua [Miss] and Oloyede Oyadiran) For Respondent
