DR. J. I. OKWUSIDI V. LADOKE AKINTOLA UNIVERSITY (2011)

DR. J. I. OKWUSIDI V. LADOKE AKINTOLA UNIVERSITY

(2011)LCN/4435(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2011

CA/I/151/2004

RATIO

TERMINATION OF EMPLOYMENT: CONDITIONS THAT MUST BE PROVED BY A PERSON CLAIMING THAT THE TERMINATION OF HIS APPOINTMENT WAS UNLAWFUL

It is trite law that the onus is on the Appellant to prove that the termination of his appointment was unlawful and to discharge the onus, he must prove that: (1) He is an employee of the Respondent. (2) Place before the court the terms and conditions of his employment thereby placing the terms of the contract. (3) Who can appoint and who can remove him and (4) In what circumstances the appointment can be determined by the employer and the breach of the terms. See OKOMU OIL PALM CO. LTD V. ISERHIENRHIEN (2001) 6 N.W.L.R. Part (710) page 660 at page 673, EMOKPAE V. UNIVERSITY OF BENIN (2002) 17 N.W.L.R. Part 795 page 139, AMODU V. AMODE (1990) 5. N.W.L.R. Part 150 at page 356, ADENIRAN V. NEPA (2002) 14 N.W.L.R. Part 786 at page 30 and OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R. Part 1157 page 83 at 135 paras F-H. PER MODUPE FASANMI, J.C.A.

EMPLOYMENT WITH STATUTORY FLAVOUR: WHETHER WHERE THE TERMS AND CONDITIONS OF A CONTRACT OF EMPLOYMENT OR SERVICE ARE SPECIFICALLY PROVIDED FOR BY A STATUTE OR REGULATIONS, IT WILL BE SAID TO BE A CONTRACT PROTECTED BY STATUTE OR AN EMPLOYMENT WITH STATUTORY FLAVOUR

Where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations, it is said to be a contract protected by statute or an employment with statutory flavour. See the cases of BAMIGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR Part 622 at 290, EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 N.W.L.R. Part 34 at 162, OLANIYAN V. UNIVERSITY OF LAGOS (1985) Part 9 at 599 and UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD V. DAWA (1991) 16 N.W.L.R. Part 739 page 424, U.N.T.H.M.B. V. NNOLI (1994) 8 N.W.L.R. Part 353 at 376 and OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R, Part 1157 page 83 at 137 paras C-F. PER MODUPE FASANMI, J.C.A.

CRIMINAL OFFENCE: WHETHER A PERSON ACCUSED OF A CRIMINAL OFFENCE MUST BE TRIED IN A COURT OF LAW AND THE NEED TO ENSURE THAT THE PROVISIONS OF SECTION 36(4) OF THE 1999 CONSTITUTION ARE ADHERED TO

Where a person is accused of a criminal offence, he must be tried in a Court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. If the allegation is one that touches the commission of a crime, it is only a Court that could convict him. For once such criminal allegations are involved; care must be taken that the provisions of Section 36(4) of the 1999 Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. See the case of F. C. S. C. V. LAOYE (1989) 2 N.W.L.R Part 106 page 652 at 679 where the learned jurist Eso J.S.C. referred to the case of GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 N.W.L.R Part 18 page 550 paras F-G thus: “I would like to emphasis herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved, Care must be taken that the provisions of Section 33 (4) of the Constitution are adhered to.” In the same vien, the court is not saying that the Respondent cannot institute disciplinary measure against an employee where there has been a criminal accusation, but care must be taken to ensure that the provision of section 35(4) of the 1999 Constitution is adhered to. The jurisdiction of the Courts cannot be usurped by the panel set up by the Respondent to investigate these allegations. See the case of Dr. O. G. SOFEKUN V. N. O. A. AKINYEMI AND OTHERS (1980) Federation of Nigeria Law Reports page 184. PER MODUPE FASANMI, J.C.A.

DUTY OF COURT: WHETHER THE COURT MUST NOT GO OUTSIDER THE FOUR WALLS OF THE DOCUMENT IN INTERPRETING A DOCUMENT

It is trite law that in interpreting a document the court can not go outsider the four walls of the document. PER MODUPE FASANMI, J.C.A.

CERTIORARI PROCEEDINGS: FUNCTION OF A WRIT OF CERTIORARI

It is trite that in Certiorari proceedings, the Court is mainly concerned with whether the record on the facts showed errors of jurisdictional irregularities. Put in another way, a writ of Certiorari lies at common law to remove the proceedings of inferior court of record or other persons or bodies exercising judicial or quasi-judicial functions for the purpose of being quashed. It may be an alternative to appeal and serves as a means of controlling inferior courts or tribunals. It could be employed to quash proceedings conducted without jurisdiction or in excess of it. See the cases of ORTESE V. MIL. GOVERNOR OF BENUE STATE (1991) 4 N.W.L.R. Part 183 at 102 and ODUWALE V. FAMAKINWA (1990) 4 N.W.L.R. Part 143 at 239 particularly at 252 Akpata J.C.A. had this to say: “It is true that certiorari lies where it appears on the face of the record that the decision was erroneous point of law. It is not every error of law that is subject to certiorari where a tribunal is dealing with a case within its jurisdiction if that were so, virtually every decision by an inferior tribunal will be questioned by certiorari proceedings” See also Ajayi v. S.E.C. (2009) 13 N.W.L.R. Part 1157 page 1 at 27 paragraphs C-E. PER MODUPE FASANMI, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

DR. J. I. OKWUSIDI Appellant(s)

AND

LADOKE AKINTOLA UNIVERSITY Respondent(s)

MODUPE FASANMI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of an Oyo State High Court delivered in Ogbomoso on the 25th day of February, 2004.
The brief facts of the case are that the Appellant was an employee of the Respondent wherein he was employed on the 6th of January, 1994 as a Lecturer in the Department of Physiology of the Ladoke Akintola University. The letter of temporary appointment was conveyed to the Appellant. Appellant’s appointment was regularized vide letter dated 20th July, 1995. Subsequently his appointment was confirmed through letter dated 14th May, 1997 reference No. REG/ESTAB/SS/PR.317. Para. 2 of the letter of confirmation, dated 14th May, 1997 thereof states:
“By this confirmation, your appointment is to retiring age, but shall be subject to the regulations of the University and such conditions of service as may be approved by the Council of the University from time to time.”
Appellant accepted the confirmation of his appointment through a letter dated 27th May, 1997.
Appellant’s appointment was later terminated through a letter dated 6th November, 2002. The notice of termination of Appellant’s appointment by the Respondent was communicated to the Appellant by the Registrar of the University. Mr. J. A. Oladokun. Dissatisfied with the termination of his appointment, Appellant challenged the mode of the termination of his appointment by the Respondent conveyed to him by the Registrar of the University and Secretary of the Governing Council through the mode of judicial review of administrative action – Certiorari. Appellant was granted ex-parte application for leave to apply for an order of Certiorari for the purpose of being quashed the decision to terminate the Appellant’s appointment as contained in the letter dated 6th November, 2002.
At the hearing of the substantive application, arguments were canvassed by learned counsel for the parties and the lower court in a well considered judgment dismissed the application of the Appellant on the 25th of February, 2004.
Dissatisfied with the judgment of the lower court, Appellant filed his notice of appeal on the 27th of April, 2004. In compliance with the rules of this court, Appellant filed his brief of argument on the 5th of April, 2005 but deemed properly filed and served on the 7th of November, 2005. Respondent filed a notice of preliminary objection that the ground of appeal No. (e) Contained in the Appellant’s notice of appeal is incompetent and same should be struck out. Respondent filed his brief of argument on the 25th of November, 2005.
At the hearing of the appeal, Respondent’s Counsel was absent in Court. No reason given for his absence. The Courts record showed that Respondent was served with the hearing notice for the day through his Counsel Awomolo Otaru & Co. on the 28th of June, 2010. Hence the Respondent’s brief filed on 25/11/05 was deemed argued pursuant to Order 17 rule 9 subrule (4) of the Court of Appeal rules 2007.
Appellant distilled four issues for determination thus:
(1) Whether the Learned Trial Judge was right in holding that the appointment of the Appellant is not one governed by Statutory Provisions.
(2) Whether the Learned Trial Judge was right in his finding that Respondent acted within its right under the contract to determine the contract and terminate the Appellant’s appointment by giving him three months notice.
(3) Whether the Learned Trial Judge was right in holding that no other person than the Registrar would be more competent to convey the messages contained in the letter of termination.
(4) Whether in certiorari proceedings, the Learned Trial Judge was right in making a finding on the allegation levied against the Appellant.
Learned Counsel for the Respondent distilled three issues for determination thus:
(1) Whether the Learned Trial Judge was right in holding that the appointment of the Appellant was terminated in accordance with the terms and conditions of the contract between the parties.
(2) Whether the Registrar of the University was authorized to communicate the letter of termination of the Appellant’s appointment to the Appellant.
(3) Whether issues were joined by the parties on the drugging and rape of Miss Olutoyin Olalere by the Appellant.
The preliminary objection dated 26/10/05 but filed on 27/10/05 by the Respondent on ground 5 of the notice of appeal that it is incompetent was not argued by the Respondent in its brief of argument filed on 25th November, 2005. The preliminary objection is therefore deemed abandoned and accordingly struck out.
The issues raised by the Appellant and the Respondent are similar but couched differently. The appeal will be determined on the issues raised by the Appellant.
Issue One
Whether the Learned Trial Judge was right in holding that the appointment of the Appellant is not one governed by Statutory Provisions.
Learned Counsel for the Appellant submitted that the Respondent was created by Ladoke Akintola university of Technology Edict No. 1 of 1990. Therefore every act of the Respondent like appointment or termination of staff must be done within the status of the Edict creating it to render such act intra vires and right. The relationship that existed between the Appellant and the Respondent i.e. the University was created by, conditioned by and subject to the express provisions of the Ladoke Akintola University of Technology, Ogbomoso Nigeria Edict No. 1 of 1990 investing the Respondent with power to appoint or remove staff. He referred to the cases of OLANIYAN V. UNILAG (2004) 15 W.R.N. page 44 at 57 and SHITTA-BAY V. F.P.S.C. (1981) 12 N.S.C.C. at 28. He contended that the learned trial Judge instead of applying the conditions laid down in section 17 (1-3) of the Ladoke Akintola University of Technology, Ogbomoso Nigeria Edict No. 1 of 1990 and Chapter 4 (10) (iii) of the conditions of service (senior staff) approved by the Council on 15th October, 1992 contained at page 31 of the record, based his decision on exhibits A & G i.e. letter offering temporary appointment to the Appellant as Lecturer 1 and Ladoke Akintola University of Technology, Ogbomoso, Nigeria conditions of service (senior staff) approved by the council on 15th October, 1992. He argued further that the fact that the Appellant had a contract of service with the Respondent and the contract contained provisions for its determination is not sufficient in law to ignore the express provision of the law governing the determination of the contract. The procedure laid down for terminating a confirmed employee’s appointment is laid down by the Ladoke Akintola Edict No. 1 of 1990. Section 17 (1-3) of the Edict requires that there should be an inquiry and a right to be heard before a court of competent jurisdiction as the principles of natural justice requires. The report of the panel set up was not made available to the Appellant until 31/3/2003 and this was attached to a further counter-affidavit as Exhibit A by Mr. J. A. Oladokun. Appellant was never suspended and no reason whatsoever was given to him for the termination of his employment before the letter of termination was served on him. The letter was not signed on the direction of the Council. Learned Counsel submitted that there was no strict compliance with the laws governing the termination of University’s employee’s employment. He urged the court to resolve issue one in favour of the Appellant.
Learned Counsel for the Respondents in reply to issue one submitted that the learned trial Judge was right in holding as follows:
“Where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavour regardless of the fact that the other contracting party is the creation of statute. It will not make any difference.”
It is a well-known and widely accepted principle of law that parties are bound by the terms and conditions of their contract. He submitted that the letter of appointment dated January 6th 1994 expressly stated the terms and conditions of appointment. All appointments whether temporary or confirmed are subject to the terms contained in the conditions of service. There was no change of the fundamental terms of appointment embodied in the contract first entered into by the University and the Appellant. He referred to the case of AMODU V. AMODE (1990) 5 N.W.L.R. Part 150 Page 356 at 373 where the learned jurist, Wali J.S.C. opined as follows:
“The term of the contract of service is the bedrock of Appellant’s case.”
He went further to state that Appellant’s Counsel Submission in his brief stating that since the Appellant was a confirmed employee or staff of the Respondent, his termination must be in accordance with Edict No. 1 of 1990 is begging the point. He opined that parties have duly entered into a contract of service specifying in clear and unambiguous terms, the mode and manner of termination of the appointment. He referred to the cases of SULE V. NIGERIAN COTTON BOARD (1985) 6 S.C. at 62 and ADEGBITE V. COLLEGE OF MEDICINE, UNIVERSITY OF LAGOS (1973) 5 S.C. at 149. The cases cited by Learned counsel for the Appellant according to the Respondent’s Counsel are distinguishable from the instant case because:
(i) There was denial of fair hearing in these two cases unlike in this case where the Appellant is not canvassing lack of fair hearing.
(ii) There was no other condition of service in these two cases except the statutes creating the respective bodies and
(iii) The Appellant herein accepted the confirmation of his appointment to be bound by the terms and conditions contained in the letter of appointment earlier referred to herein.
Learned Counsel for the Respondent urged the court to resolve this issue against the Appellant.
It is trite law that the onus is on the Appellant to prove that the termination of his appointment was unlawful and to discharge the onus, he must prove that:
(1) He is an employee of the Respondent.
(2) Place before the court the terms and conditions of his employment thereby placing the terms of the contract.
(3) Who can appoint and who can remove him and
(4) In what circumstances the appointment can be determined by the employer and the breach of the terms. See OKOMU OIL PALM CO. LTD V. ISERHIENRHIEN (2001) 6 N.W.L.R. Part (710) page 660 at page 673, EMOKPAE V. UNIVERSITY OF BENIN (2002) 17 N.W.L.R. Part 795 page 139, AMODU V. AMODE (1990) 5. N.W.L.R. Part 150 at page 356, ADENIRAN V. NEPA (2002) 14 N.W.L.R. Part 786 at page 30 and OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R. Part 1157 page 83 at 135 paras F-H.
Appellant was employed by the Respondent on a temporary appointment on the 6th of January, 1994 as Lecturer 1. This appointment was regularized vide letter dated 20th July, 1995. This was subsequently confirmed through a letter dated 14th May, 1997 reference No. REG/ESTAB/SS/PR. 317. Paragraph 2 of the letter states interalia.
“By this confirmation, your appointment is to retiring age but shall be subject to the regulations of the University and such conditions of service as may be approved by the Council of the University from time to time.”
The Respondent was created by Ladoke Akintola University of Technology Edict No. 1 of 1990 investing the Respondent with power to appoint or remove staff. Respondent had the conditions of service (Senior Staff) approved by the council on the 15th of October, 1992. See page 70 of the record of appeal. By virtue of the foregoing documents, Appellant claimed that his employment is protected by statute and therefore enjoys special legal status over and above the ordinary common law master and servant relationship.
Where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations, it is said to be a contract protected by statute or an employment with statutory flavour. See the cases of BAMIGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR Part 622 at 290, EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 N.W.L.R. Part 34 at 162, OLANIYAN V. UNIVERSITY OF LAGOS (1985) Part 9 at 599 and UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD V. DAWA (1991) 16 N.W.L.R. Part 739 page 424, U.N.T.H.M.B. V. NNOLI (1994) 8 N.W.L.R. Part 353 at 376 and OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R, Part 1157 page 83 at 137 paras C-F.
The question whether a contract of employment is governed by statute or not depends on the contract itself or the relevant statute. The duty to construe is the exclusive preserve of the courts. By the provisions of the Ladoke Akintola University of Technology Ogbomoso Nigeria Edict No. 1 of 1990 and exhibit C i.e. the provisions of the conditions of service (Senior Staff) approved by the Council on 15th October, 1992 particularly Chapter 4 (10) (iii) states that the appointment of a confirmed employee shall be terminated by Council in accordance with the provisions of the Ladoke Akintola University Edict No. 1 of 1990. I am of the view that the contract of employment of the Appellant is governed by statute. I am not inclined to the view expressed by the learned counsel for the Respondent that there was no change of the fundamental terms of appointment embodied in the contract first entered upon by the Respondent and the Appellant. The subsequent letter of confirmation of the Appellant’s appointment has changed the fundamental terms of appointment with the Respondent.
The letter of confirmation of appointment of the Appellant dated 14th May, 1997 attached to the motion on notice dated 5th, February, 2003 page 64 of the record had superseded Exhibit A i.e. the letter of temporary appointment. After exhibit A, there had been regularization of appointment in July 1995 and the confirmation of appointment on 14th May, 1997.
With these documents, the relationship between the Appellant and the Respondent has all the trappings of a contract with statutory flavour. Appellant therefore being a holder of public office with legal status in the established pensionable cadre of the University of the Ladoke Akintola University of Technology is entitled to remain in office until he attains the retiring age or until he is properly removed. The learned trial Judge was wrong in his holding that the appointment of the Appellant is not one governed by statutory provisions Issue one is hereby resolved in favour of the Appellant.
Issue Two
Whether the Learned Trial Judge was right in his finding that the Respondent acted within its right under the contract to determine the contract and terminate the Appellant’s appointment by giving him three months notice
Learned Counsel for the Appellant submitted that Appellant’s employment is an employment with statutory flavour. The conditions governing the termination of Appellant’s employment are expressly provided for by the Ladoke Akintola University of Technology Edict No. 1 of 1990 which Edict also established the University. Learned Counsel for the Appellant submitted that Section 17 subsections 1-3 of the Ladoke Akintola University of Technology Ogbomoso, Nigeria Edict No. 1 of 1990 deals with discipline of academic, administrative and technical staff of the University. Also Chapter 4 section 10 (iii) of the Conditions of Service of Senior staff deals with the termination of confirmed employees of the University. He contended that since the Respondent did not comply with the statutory provision, the termination of the Appellant’s employment is null and void. He referred to the case of PSYCHIATRIC HOSPITAL V. EJITAGHA (2000) 2 S.C.N.Q.R. Part II page 1360 at 1369. He submitted that the conditions of termination in the temporary appointment are no longer applicable to the Appellant since the temporary appointment had been superseded by the confirmation of appointment.
Learned Counsel for the Appellant canvassed that the learned trial Judge failed to consider section 17 (3)(a) of the University Edict which deals with conviction for any offence which the Council considers. There must be a conviction for the offence not just an allegation that the Appellant committed the offence. The Panel set up has no power or competence to investigate such an allegation and concluded his submission that the learned trial Judge failed to advert his mind to the fact that drugging and raping constitute serious criminal offences which can only be investigated by the police. He urged the court to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent in reply submitted that the termination of the Appellant’s appointment was based or predicated on the conditions of service entered into between the parties. The letter of appointment dated 6th January, 1994 expressly stated the terms and conditions of appointment. He reproduced section 17 (1) of Edict No. 1 of 1990 of the University which states thus:
“If it appears to the Vice-chancellor that there are reasons for believing that any confirmed member of the academic, administrative or technician staff of the University other than those whose removal is governed by statute should be removed from office or employment on the ground of misconduct or inability to perform the functions of his office or employment, the Vice-Chancellor shall-
(a) Give notice of those reasons to the person in question.
(b) Afford him an opportunity of making representations on the matter.”
Learned Counsel for the Respondent contended that the Appellant cannot rely on section 17(1-3) of Edict No. 1 of 1990 because
(i) The Appellant was not employed under the statute.
(ii) The letter of appointment and the letter of confirmation of appointment stated in equivocal terms the mode and manner of termination of appointment.
He submitted that Appellants termination of appointment was in accordance with the terms and conditions of service which the Appellant subscribed to and accepted and that the lower court’s interpretation of section 17(1-3) of Edict No.1 of 1990 of the University is therefore justified. Learned Counsel for the Respondent urged the court to resolve this issue against the Appellant.
Section 17(3) of Ladoke Akintola University of Technology Ogbomoso Nigeria Edict No. 1 of 1990 gives the Council the power to suspend any member of staff from his duties or his appointment terminated for good cause. Section 17(3) (c) gives the meaning of good cause as conviction for any offence which Council considers to render the person unfit for the discharge of his duty.
It is a total misconception on the part of the learned counsel for the Respondent to understand and suggest that the Conditions of service entered into on the 6th of January, 1994 between the Appellant and the Respondent i.e. exhibit A is the one binding between the parties. It is true that the Appellant was given a temporary appointment as Lecturer 1. The terms and conditions are contained in exhibit A at pages 60-61 of the record of appeal. This was followed by regularization of appointment at page 62 of the record of appeal, followed by confirmation of appointment at pages 63 and 65 of the record. With due respect, I do not see it as reasonable to hold that exhibit A is the binding terms and conditions between the Appellant and the Respondent in view of the subsequent letter of confirmation of appointment which reinforced the applicability of the conditions of service. This is because the question of what is the applicable condition of service in the circumstance must only be decided upon a consideration of the entire circumstance and peculiar facts of this case. Any reference to or reliance on exhibit A after the subsequent letter of confirmation which had expressly been admitted and acknowledged by the Respondent is erroneous and inappropriate. The finding of the Learned Trial Judge at pages 151-152 of the record of appeals that:
“Where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavor regardless of the fact that the other contracting party is the creation of statute. It will not make any difference.”
is erroneous and unjustified.
On the Learned Counsel for the Appellant’s submission that the Panel set up by the Respondent has no power or competence to investigate misconduct of the Appellant.
Section 138 subsection 1 of the Evidence Act states that:
“If the Commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”
In the instant case, Appellant was never suspended by the Respondent. No reason was given for the termination of his employment. The letter was not signed on the directive of the Council. The allegations of drugging and raping of Miss Olutoyin Olalere levelled against the Appellant are criminal in nature. Where a person is accused of a criminal offence, he must be tried in a Court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. If the allegation is one that touches the commission of a crime, it is only a Court that could convict him. For once such criminal allegations are involved; care must be taken that the provisions of Section 36(4) of the 1999 Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. See the case of F. C. S. C. V. LAOYE (1989) 2 N.W.L.R Part 106 page 652 at 679 where the learned jurist Eso J.S.C. referred to the case of GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 N.W.L.R Part 18 page 550 paras F-G thus:
“I would like to emphasis herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved, Care must be taken that the provisions of Section 33 (4) of the Constitution are adhered to.”
In the same vien, the court is not saying that the Respondent cannot institute disciplinary measure against an employee where there has been a criminal accusation, but care must be taken to ensure that the provision of section 35(4) of the 1999 Constitution is adhered to.
The jurisdiction of the Courts cannot be usurped by the panel set up by the Respondent to investigate these allegations. See the case of Dr. O. G. SOFEKUN V. N. O. A. AKINYEMI AND OTHERS (1980) Federation of Nigeria Law Reports page 184
The panel set up has no power or competence to investigate such allegations. The available facts have showed errors of jurisdictional irregularities. The process of termination of appointment as laid down in Edict 1 of 1990 was not complied with. The Provisions of Regulations of termination of appointment must be followed to the letter as any breach would render the exercise of termination null and void. See ADENIYI V. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 N.W.L.R Part 300 at page 426. Mere writing a letter terminating the Appellant’s employment without giving any reason for the determination of the employment runs foul of section 17 (1) (a) of the University’s Edict No. 1 of 1990. See O.A.U VS. ONABANJO (1991) 5 N.W.L.R. Part 193 at 549. Issue two is hereby resolved in favour of the Appellant.
Issue Three.
Whether the Learned Trial Judge was right in holding that no other person than the Registrar would be more competent to convey the messages contained in the letter of termination.
Learned Counsel for the Appellant submitted that the Learned Trial Judge’s finding was based on mere assumption and not on any plausible evidence. There is no evidence that the Registrar, Mr. J.A. Oladokun was acting on the directives of the Council of the University. He submitted that the Registrar is by virtue of First Schedule, Section 5 (2), of Edict 1 of 1990 the Secretary to the Senate, Congregation and Convocation of the Respondent. One may ask “was the Registrar acting in the position of a Secretary to the Senate or Registrar of the Council. He contended that the court in interpreting a document cannot go outside the four walls of the document. He canvassed that the Learned Trial Judge went outside the four walls of exhibit D i.e. the letter of termination. Learned Counsel for the Appellant urged the court to resolve issue three in favour of the Appellant.
Learned Counsel for the Respondent submitted that the issue is a very mute point by Learned Counsel for the Appellant because:
(i) The Registrar of the University is the Secretary to the Governing Council and Secretary of the Congregation. He referred to paragraph 9 of the Further Counter-Affidavit to the motion on notice for Certiorari dated 5th February, 2003. This averment was not denied by the Appellant. It was the Registrar of the University that signed the Appellant’s letter of appointment dated Jan. 6th 1994, the Regularization of the Appellant’s appointment vide letter of July 20th, 1995 and confirmation of his appointment dated May 15th 1997. The contents of the letter of termination of the Appellant conveyed a directive through the Registrar to the Appellant. Learned Counsel for the Respondent argued further that the issue of the Registrar signing the letter of termination of the Appellant’s employment was no longer a live issue in view of the amendment of the Appellant’s relief contained at page 139 of the record. The Registrar by signing the letter of termination acted within his powers and functions as the Secretary to the Governing Council and the Congregation. He urged the court to resolve issue three against the Appellant.
The point in issue here is whether the termination of the Appellant’s appointment vide the letter dated 6/11/2002 was valid, legal and proper in all the circumstances of this case. The amendment of the Appellant’s relief contained at page 139 of the records states:
“An order of Certiorari removing into this Honourable Court for the purpose of being quashed the decision of Ladoke Akintola University of Technology; Ogbomoso, Nigeria purportedly terminating the Appointment of the Applicant and communicated to the Applicant through letter reference number REG/ESTAB/SS/PF.317 dated 6/11/2002.”
I will also reproduce the relevant portion of the letter of termination below for clarification. The letter was annexed to the motion paper by the Applicant now the Appellant before this court as exhibit ‘D’.
“LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY, OGBOMOSO, NIGERIA.
6/11/2002
REG/ESTAB/SS/PF.317
Dr. J. I. Okwusidi
Department of Physiology
Faculty of Basic Medical Science
Lautech
Ogbomoso.

Dr. Okwusidi,
TERMINATION OF APPOINTMENT
I write to inform you that the University no longer requires your services. Consequently, your appointment as Senior Lecturer in the Department of Physiology is hereby terminated with immediate effect.
In line with the terms of your appointment, the Bursar is being requested to pay you three (3) months salary in lieu of notice of termination.
You are requested to hand over to your Head of Department any University property in your possession and make adequate arrangement with the Bursar for the payment of any entitlement due to you less your indebtedness.
Yours Sincerely
(Sgd) J.A. Oladokun
Registrar.

It is not in doubt that the Appellant is a confirmed officer of Ladoke Akintola University of Technology by virtue of his letter of confirmation dated 14th May 1997. At page 12 of the record of proceedings, paragraph 2 of the letter of confirmation states inter alia:
“By this confirmation, your appointment is to retiring age, but shall be subject to the Council of the University from time to time.”
(Underlining is mine for emphasis)
From the contents of this letter, Appellant’s letter of appointment is made subject to the regulations and the conditions of service approved by the Council of the University which is the condition of service approved by the Council on the 5th of Oct. 1992. This is because whenever the phrase “subject to” is used, the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on or limited and restricted in application to the section to which they are made subject to. In other words, the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable, subordinate and inferior to the provisions of the other enactment. See the cases of LABIYI V. ANRETIOLA (1992) 8 NWLR Part 258 at 139, TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 N.W.L.R. Part 117 at 517 and F.R.N. V. OSAHOM (2006) 5 N.W.L.R. Part 973 at 261.
Now coming to the conditions of service of senior staff approved by the Council on the 15th of Oct. 1992, section 4 subsection 10 (iii) reads:
“The appointment of a confirmed employee shall be terminated by Council in accordance with the provisions of the Ladoke Akintola University of Technology Edict No. 1 of 1990”
See page 33 of the record of appeal.
Section 17 subsections 1-3 of the Ladoke Akintola University of Technology Edict No. 1 of 1990 stipulates the procedure for discipline of academic, administrative and technical staff of the institution. Section 17 (2) (c) stipulates who should remove employee from office. For the purpose of clarity, section 17 (2) (c) states:
“If Council after considering the report of the investigating committee is satisfied, that the person in question should be removed, Council may so remove him by an instrument in writing signed on the directive of Council”
If one stretches the interpretation of section 17 (2) (c) of Edict 1 of 1990 to a breaking point, it cannot be extended to cover a blanket letter of termination of appointment without the directive of the Council. The letter of termination of appointment at page 14 of the record issued to the Appellant runs foul of section 17 (2) (c) of the Ladoke Akintola University of Technology Ogbomoso, Nigeria Edict No. 1 of 1990. It is the Council that may so remove the Appellant by an instrument in writing signed on the directives of the Council or put in another way it is the Council that has the power to terminate the employment of the Appellant who is a confirmed employee of the University.
Learned Counsel for the Respondent’s submission that the letter of termination was regular or valid by virtue of section 150 subsections (1) & (2) of the Evidence Act is misconceived. The learned trial Judge in dealing with whether the termination of the Appellant’s appointment vide letter dated 6/11/2002 was valid ignored the express provisions of the Ladoke Akintola University of Technology Edict Cap 67 Laws of Oyo State which expressly vests the power to suspend or terminate the appointment of a confirmed employee such as the Appellant on the Council of the University. Since there is no evidence that the Registrar conveyed the decision or directive emanating from the Council from the contents of the letter of termination, mere writing to say?
“I write to inform you that the University no longer requires your services”
Will not avail the Respondent. It is trite law that in interpreting a document the court can not go outsider the four walls of the document.
Issue three is hereby resolved in favour of the Appellant.
Issue Four
Whether in Certiorari proceedings, the Learned Trial Judge was right in making a finding on the allegations levied against the Appellant.
Learned Counsel for the Appellant submitted that Certiorari is concerned mainly with jurisdictional irregularities or errors in the face of the record. In certiorari proceedings, the court does not go into the substance of the case and determine whether certain allegations have or have not been established. The Learned Trial Judge fell into the error when in his decision he tried to justify the wrongful termination of the Appellant’s appointment. He urged the court to resolve this issue in favour of the Appellant and finally to set aside the decision of the learned trial Judge and quash the decision of Ladoke Akintola University of Technology, Ogbomoso terminating the appointment of the Appellant as contained in the letter reference No. REG/ESTAB/SS/PE. 317 of 6th of Nov. 2002.
Learned Counsel for the Respondent submitted that the learned Trial Judge did not make any finding on the issue of drugging and raping Miss Olutoyin Olalere and further submitted that the learned trial Judge was right in arriving at a just decision based on the contract of employment between the parties. He concluded that the lower Courts interpretation of section 17 subsections 1-3 of Edict No. 1 of 1990 of the University is therefore justified. He urged the court to resolve the issue against the Appellant.
It is trite that in Certiorari proceedings, the Court is mainly concerned with whether the record on the facts showed errors of jurisdictional irregularities. Put in another way, a writ of Certiorari lies at common law to remove the proceedings of inferior court of record or other persons or bodies exercising judicial or quasi-judicial functions for the purpose of being quashed. It may be an alternative to appeal and serves as a means of controlling inferior courts or tribunals. It could be employed to quash proceedings conducted without jurisdiction or in excess of it. See the cases of ORTESE V. MIL. GOVERNOR OF BENUE STATE (1991) 4 N.W.L.R. Part 183 at 102 and ODUWALE V. FAMAKINWA (1990) 4 N.W.L.R. Part 143 at 239 particularly at 252 Akpata J.C.A. had this to say:
“It is true that certiorari lies where it appears on the face of the record that the decision was erroneous point of law. It is not every error of law that is subject to certiorari where a tribunal is dealing with a case within its jurisdiction if that were so, virtually every decision by an inferior tribunal will be questioned by certiorari proceedings”
See also Ajayi v. S.E.C. (2009) 13 N.W.L.R. Part 1157 page 1 at 27 paragraphs C-E. The allegations of drugging and raping of Miss Olutoyin Olalere leveled against the Appellant are criminal in nature. The jurisdiction of the courts cannot be usurped by the panel set up by the Respondent to investigate the criminal allegations leveled against the Appellant and take a final decision affecting his legal right. Drugging and raping constitute serious criminal offence which can be investigated by the police. The panel set up has no power or competence to investigate such allegations. The facts on record showed jurisdictional errors or irregularities. I am on one with the learned Appellant’s counsel submission that the Learned Trial Judge fell into the error by justifying the wrongful termination of the Appellant’s appointment. Issue four is resolved in favour of the Appellant.
The Respondent on the 28th of May, 2004 filed a Respondent’s notice that the Judgment of the lower court be affirmed on other grounds apart from those relied upon by the trial court.
He relied on section 150 (1) & (2) of the Evidence Act which provides as follows:
“15 (1) When any judicial or official act is shown to have been done in a manner substantially regular; it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that any person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.”
And the case of Wuyep v. Wuyep (1997) 10 N.W.L.R. Part 523 page 154 at 165.
Learned Counsel for the Appellant submitted that the Registrar must state in what capacity he so acts or writes and from where he derives his authority.
A Respondent who wishes that a judgment should be sustained on a ground other than the ground of Judgment ought to file a cross-appeal or Respondent’s notice of intention pursuant to Order 9 rule 2 of the Court of Appeal Rules 2007. See Ozigbo v. P.D.P (2010) 9 N.W.L.R. Part 1200 page 601 at 631-632 H-A. I do not equally understand the Respondent by any of the issues he has formulated as seeking for the affirmation of the Judgment of the lower court upon other grounds apart from those relied upon by the said court. In the circumstance, the filing of a Respondent’s notice that the Judgment of the lower Court be affirmed on other grounds has no basis.
Finally, the appeal is meritorious and it succeeds. The judgment of the lower court delivered on the 25th of Feb. 2004 is hereby set aside and the decision of Ladoke Akintola University of Technology Ogbomoso purportedly terminating the appointment of the Appellant contained in the letter reference number REG/ESTAB/SS/PE.317 is null and void. In the circumstance, the purportedly termination of the Appellant’s appointment by the Technology Ogbomosho is hereby quashed. I award a cost of (N30, 000.00) thirty thousand naira in favour of the Appellant.

SIDI DAUDA BAGE, J.C.A.: I have before now the judgment just delivered by my learned brother, M. FASANMI, J.C.A. The issues raised in the appeal have been dealt with in detail.
I entirely agree with the reasoning and conclusion arrived at, that the appeal is meritorious. The appeal is also allowed by me.
I abide by all the consequential orders made in the said lead judgment including the order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was opportuned to read in advance the incisive judgment prepared by my learned brother, Fasanmi, J.C.A., which tallies with my reasoning.
And I adopt same as mine.
The appellant, a confirmed academic staff of respondent university, had his employment governed by statute – The Ladoke Akintola University of Technology Edict (now law) No. 1 of 1990. By virtue of the statutory flavour of his employment, due process had to be followed in determining the employment – See Eperokun and Others v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 175 thus:
“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. As I had stated earlier, the only issue in this appeal is whether in the circumstances disclosed by the evidence, the court of first instance could say that this was a simple case of termination and no more or of removal from office on the ground of alleged misconduct. The decision in OLANIYAN established that it was removal for misconduct. I am in no doubt that nothing that was said in argument before us has rendered invalid the conclusions in that judgment. Similarly, no ground has been shown why the decision in this case should not have accorded, with that reached in the OLANIYAN case.
I hold that the provisions of Section 17 of the University of Lagos Act No.3 of 1967 were available to the appellants and it was ULTRA VIRES of the respondent to have sought to terminate the employment of each appellant as it did. I agree with learned counsel for the appellants’ submission that the case here was that of VIRES, that is of administrative law and not of a simple contractual relationship.”
See also Olaniyan v. University of Lagos (1985) NWLR (Pt. 9) 599.
Appellant was accused of drugging and raping a female student of respondent University. The allegation carried moral turpitude and criminality. A disciplinary panel set up by the Governing Council of respondent university found the allegations of drugging and rape of the female student by appellant proven.
To the extent that rape is a criminal offence, the administrative panel lacked the competence to inquire into it. By inquiring into the criminal allegation, the administrative panel usurped the functions of the courts of law see Sofekun v. Akinyemi (1980) FNR 184; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652 at 679; Biishi v. Judicial Service Commission (1991) 6 NWLR (Pt. 197) 331.
The letter of termination of the appellant’s employment was signed by the Registrar of respondent university. It reads:
“I write to inform you that the university no longer requires your services. Consequently your appointment as Senior Lecturer in the Department of physiology is hereby terminated with immediate effect.
In line with the terms of your employment, the Bursar is being requested to pay you three (3) months salary in lieu of notice of termination.
You are required to hand over to your Head of Department any university property in your possession and make adequate arrangement with the Bursar for the payment of any entitlement due to you less your indebtedness.
Yours Sincerely,
Sgd.
J. A. Oladokun
Registrar.”
The above copied letter of termination of appellant’s employment was not shown to have been signed by the Registrar of respondent university on behalf of the Governing Council of the respondent university. By section 17 (2)(c) of the respondent university Edict (now law) No. 1 of 1990, either the Governing Council or a person directed by the Governing Council would be competent to write and sign a letter terminating the appointment of a confirmed staff in the category of appellant before the termination would be valid.
The Registrar of respondent university having not shown in the letter terminating appellant’s employment that he was so directed by the respondent university Governing Council, the said Registrar acted ultravires and the court below exercising its supervisory jurisdiction should have issued a certiorari order quashing the offending letter on ground of lack of jurisdiction of the Registrar to issue it.
It is for the above rendered reasons and the fuller reasons given in the judgment of my learned brother Fasanmi, J.C.A., that I allow the appeal and abide by the consequential orders contained in the said judgment.