COUNCIL OF THE ENUGU UNIVERSITY OF SCIENCE & TECHNOLOGY & ANOR v. E.N. UDE
(2014)LCN/7121(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/E/79/2007
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
Ordinarily, an appellate Court has no business in the evaluation of evidence because of its limitation of not seeing and hearing the witnesses unless the trial court which has the duty of evaluation failed to properly evaluate the evidence adduced by the parties at the trial [WOLUCHEM V. GUDI (1981) 5 SC. 291 ODOFIN V. AYOOLA (1984) 11 SC.72.
In its duty of evaluation, a trial court has the responsibility to fully consider the evidence of the parties, ascribe probative value to it and put same on the imaginary scale of justice to determine the party in whose favour the balance tilts. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
WHETHER AN APPEAL COURT MAY ON ITS FORMULATE AN ISSUES FOR DETERMINATION PERTINENT IN ITS JUDICIAL DETERMINATION OF THE MATTER ON APPEAL
Issues formulated by the parties play a vital role in the determination of a Suit, be it at the trial or appellate stage. At the appellate level such as the instant case, a party is expected to distil from the grounds of appeal in a concise, direct and unambiguous manner what he considers are issues for determination. It is not to obfuscate but to bring out in bold relief the issues to be determined by the court. [FASAKUN V. SIWOKU (2009) 16 NWLR (PT. 167) 305]. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
The appellate court can on its own formulate an issue or issues which it considers relevant to, and pertinent in its judicial determination of the matter on appeal. [OKORO V. STATE (1988) 5 NWLR (PT. 94) 255, LEBILE V. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION OF NIGERIA (2003) 2 NWLR (PT.804) 399. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
JUSTICES:
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. COUNCIL OF THE ENUGU UNIVERSITY OF SCIENCE & TECHNOLOGY
2. ENUGU STATE UNIVERSITY OF SCIENCE & TECHNOLOGY – Appellant(s)
AND
E.N. UDE – Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Enugu State High Court of Justice sitting at Enugu, presided over by Hon. Justice F.K. Ezeike on 26th July, 2005.
The brief literature review of the instant case is that the Respondent as Plaintiff at the trial court instituted an action by ordinary Writ of Summons on 3/4/2002 against the Appellants for unlawful disengagement from the service of the 2nd Appellant. In his 17 paragraph Statement of Claim the Respondent claimed jointly and severally against the Appellants as follows:
“(a) A declaration that the Plaintiff’s retirement age while in the service of the defendants is 60 (sixty years)
(b) A declaration that the purported termination of the Plaintiff’s appointment by the defendants by a letter dated 1st February, 2001 Ref: ESUT/R/185 is unlawful and so null and void.
(c) An Order of reinstatement of the plaintiff into the service of the defendants and payment of all his accrued emoluments.
OR
An Order of payment to the plaintiff all his emolument entitlements up to the retirement age of 60 (sixty) years together with his gratuity and pension in accordance with the operative pension scheme in alternative to his reinstatement.”
Pleadings were settled at the trial court wherein trial was conducted in the Suit. The learned trial Judge in his considered decision gave judgment in favour of the Respondent and ordered as follows:
“(1) That without any amendment to the law, statute Ordinance or Regulation of Enugu State University of Science and Technology, the retirement age of the plaintiff, a Deputy Registrar on monthly take home pay of N82,000.00 per month is 60 (sixty) years
(2) That the letter dated February 2001 reference ESUT/R/85, which letter reorganizing the plaintiff out of his employment without more is unlawful and so null and void.
(3) That the plaintiff haven reached the retirement age of 60 years by December, 2004, cannot be reinstated into the University, rather the defendant should calculate and pay to the plaintiff all his outstanding arrears and allowances from February 2001 till the said attained age of 60 years in December,2004.
(4) That the defendant has no duty and or responsibility to pay to the plaintiff his pension and gratuity; such Order is refused and prayer for the defendants to pay same is dismissed.
(5) That the plaintiff should go to the appropriate authority for such entitlements.”
The Appellants being dissatisfied with the decision of the trial court, filed Notice and Grounds of Appeal dated 18th October, 2005 and filed on 20th October 2005. The Notice of Appeal contains a sole Ground of Appeal. The said Ground of Appeal shorn of its particulars read thus:
GROUND 1
The learned trial Judge erred in law when he held:
“It is the judgment of this court that without any amendment of the Law, Statute, Ordinance or Regulation of Enugu State University of Science and Technology, the retirement age of the plaintiff, a Deputy Registrar on a monthly take home pay of N82,000.00 per month is 60 (sixty) years.”
The Appellant was granted leave on 25th October 2007 to file and argue grounds of Appeal. The additional ground of Appeal read thus –
GROUND 2.
The learned trial Judge did not properly evaluate the evidence led at the trial.
PARTICULARS OF ERROR
The Judgment is unwarranted and is against the weight of evidence.
In accordance with the rules of this Honourable Court, the parties through their legal representatives filed, exchanged and adopted their Briefs of Argument in support of their various contentions in the appeal. The Appellants’ Brief of Argument dated 20/9/2007 and filed on 23/10/2007 was settled by A.O. MOGHOH JNR. The Respondent’s Brief of Argument dated 30/10/2007 and filed on 6/11/2007 was settled by Chief J.C. Ifebunandu. The appeal was taken on 3/2/2014.
The Appellants formulated two (2) Issues for determination in the Appeal. The Appellants’ Issues read thus:
“1. Whether the learned trial Judge properly evaluated the evidence before him in coming to a conclusion.
2. Whether by the combined effect of the Constitution and the regulation thereto of the Federal and State Agencies, the Edicts and Regulations of Enugu State University of Science and Technology are not extant thereto.
In his argument on Issue 1, the Learned Counsel for the Appellants contends that a judgment of court must in civil cases demonstrate a full and dispassionate appraisal of all issues raised in the case and reflect the result of such an exercise. He cites the case of IGANUDE OBODO Vs EMMANUEL OGBA (1987) 2 NWLR (Pt. 54) 1 at 10. He emphasized that the re-organization exercise which affected the Respondent was in effect of the decision reached by the Council to include 35 years of service as age of retirement as well as directive of the State Government. He referred to Exhibit 8 on record.
It is the further contention of the Appellants’ counsel that the learned trial Judge, having gone through the tendered Exhibits at the trial court, particularly, Exhibits 4, 8 and 9, he ought not to have reached the decision being appealed against. He referred to the evidence of the Respondent at pages 19 and 20 of the record of Appeal. He also refers to the evidence of D.W.1 the Registrar of ESUT at page 28 of the record of Appeal.
On the Appellants’ Issue 2, the learned Counsel contends that what the Council did at its 75th Meeting which gave rise to the re-organization was a variation and waiver of the conditions of service which it was ultimately and unilaterally empowered to do so. He went further to state that the Council in amending the statute which it has powers to do, changed the retiring age to include 35 years of service whichever came earlier sequel to the instructions and directives contained in Exhibit 8 – letter from the visitor. He refers to Statute 22, paragraphs 1 – 3 of the Enugu State University of Science and Technology, found in Edict No. 9 of t996, Statute 22, paragraphs 10(1) of the Edict on retiring age of 60 years, Section 24 of the Edict, paragraph 2.9 at pages 13 and 14 of the regulations governing the service of Senior Staff of the University and Statute 20, particularly Section 7 of Edict No. 9 of 1996.
The learned Counsel for the Appellants further contends that the laws and regulations are subject to “the Council decision and as such Council has the final say. He cites the authority of ALAMIEYESEIGHA Vs FRN (2006) 16 NWLR (PT. 1004) AT 1 and GOVERNOR KWARA STATE Vs LAFIAJI (2005) 5 NWLR (PT. 917) AT 139. In conclusion, the Appellants’ counsel urges this court to allow the Appeal and set aside the judgment of the trial court.
In his Respondent’s Brief of Argument, the learned counsel for the Respondent formulated two (2) Issues for determination in the instant Appeal. The Respondent’s Issues read thus:
“(a) What were the conditions of employment of the Respondent as provided by the Statute ie Edict No. 9 of 1996.
(b) Was the Respondent’s employment terminated in accordance with the said Edict.”
In his argument on Issue (a), the Respondent’s Counsel contends that the Respondent’s employment was statutorily Protected and not an ordinary contract of employment. He refers to the authority of UMTHMB V DAWA (2002) FWLR (Pt. 108) P.1402 at P.1423. He further refers to Statute 20 (7), Statute 22 (7), (8) (100) & (12) of Edict No. 9 of 1996. He emphasized that Statute 20 (7) did not incorporate or include the minutes book of the council of the University which the Appellants sought to introduce by tendering Exhibit 9, adding that there was nothing shown in the minutes book as containing any conditions of service or regulations which applied to the staff of the University.
It is the further contention of the Respondent’s Counsel that the Council alone has no power under the Edict to amend a Statute without reference to Section 24 of the Edict and so, the Council could not have amended Statutes 20(7) 22(7) (8) (10) of the Edict as contained in Exhibit 9. The learned counsel states that in order to amend a Statute in the Edict, the Council must approve, the Senate must approve in their different meetings any amendment with the required majority vote before the visitor signs the amendment. He states that the minutes book of the Council did not amend the relevant sections of the Statute as held by the trial court at pages 60 – 62 of the record.
On the Respondent’s Issue (b), his learned counsel contends that Exhibit 5 was in total breach of the conditions of employment of the Respondent. He states that the Respondent pursuant to Exhibit 5 was not given any opportunity to know any reason for the termination of his employment neither did he appear before any committee of the Council to defend any allegation against him. Relying on the authority of OKECHUKWU V. ONUORAH (2000) 12 SCNJ P. 146, the learned counsel states that parties are bound by their contract and must observe the terms therein contained. He refers to the evidence of D.W.1 at page 28 of the records. On this note he states that the Appellants had no reason as provided in Edict No. 9 of 1996 to terminate the Respondent’s employment. He cites the authorities of OLANIYAN V. UNILAG (1985) 2 NWLR (Pt. 9) P.599, SHITTA-BEY V FEDERAL CIVIL SERVICE COMMISSION (1981) 1 S.C P.40. In conclusion, he states that the appeal lacks merit and the court is urged to dismiss same.
I have carefully perused through the record of Appeal in the instant case. I have also weighed the arguments of the parties in relation to their respective issues formulated for determination of this appeal. From the facts built up in the instant case, I am of the view that the nature of the employment between the Appellants and the Respondent is a contract of employment with statutory flavour.
“An employment is said to have a statutory flavour when the appointment and termination of such employment is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions. Hence such an employment is said to enjoy statutory flavour [AUCHI POLYTECHNIC V. OKUOGHAE (2005) 10 NWLR (PT. 933) 279, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; SHITTA-BEY V. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40, RIDGE V. BALDWIN (1963) 2 ALL ER 66, IMOLOAME V. WAEC (1992) 9 NWLR (PT.265) 303.
The crux of the instant litigation was that the Respondent sued the Appellants in reaction to Exhibit 5, claiming that by what the Appellants termed re-organization, he was unlawfully disengaged from the service.
I took a critical look at the Issues formulated by the parties in this appeal, particularly that of the Appellants’ Counsel.
Issues formulated by the parties play a vital role in the determination of a Suit, be it at the trial or appellate stage. At the appellate level such as the instant case, a party is expected to distil from the grounds of appeal in a concise, direct and unambiguous manner what he considers are issues for determination. It is not to obfuscate but to bring out in bold relief the issues to be determined by the court. [FASAKUN V. SIWOKU (2009) 16 NWLR (PT. 167) 305].
The appellate court can on its own formulate an issue or issues which it considers relevant to, and pertinent in its judicial determination of the matter on appeal. [OKORO V. STATE (1988) 5 NWLR (PT. 94) 255, LEBILE V. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION OF NIGERIA (2003) 2 NWLR (PT.804) 399. On this note, I hereby formulate the following issues which I consider relevant to the determination of this case.
ISSUES FOR DETERMINATION
1. Whether by the nature of the contract of Employment between the Appellant and the Respondent, the Appellants disengaged the Respondent in accordance with the statutory Regulations in their term of contract.
2. Whether the learned trial Judge properly evaluated the evidence before him in coming to the conclusion reached in his Judgment.
ISSUE 1:
Enugu State University of Science and Technology was established under Part II, Section 3 of Enugu State Edict No. 9 of 1996, now Enugu State Law, No. 9 of 1996, pursuant to CAP 74 of the Revised Laws of Enugu Sate, of Nigeria, 2004. Statutes 20 and 22 of the said Law of Enugu State provided for the appointment of staff of the University and mode of removing the officers and staff from office. On this note, I hold that the nature of contract of employment between the Appellants and the Respondent is statutory and to that effect it has statutory flavour as the appointment and termination of officers and staff of the University are governed by statutory provisions. In other words, where the contract is governed by the provisions of statute or where the conditions of service are contained in Regulations derived from Statutory provisions, it vest the employee with a legal status higher than the ordinary master and servant. [AUCHI POLY V OKWUOGHAE (2005) 10 NWLR (PT.933) 279, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599, SHTTTA-BEY V. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC. 40, RIDGE V. BALDWIN (19623) 2 ALL ER 66 and IMOLOAME V EAEC (1992) 9 NWLR (PT.265) 303.
I took a look at Exhibit 4 which is a binded copy of Regulations Governing the service of Senior Staff (EUSS 6 – 15) of the 2nd Appellant, as approved by Council of the University. At the front cover of the said copy of the “Regulation is a note stating that:
“The Regulations governing the service of Senior Staff (EUSS 6 -15) contained herein shall not be rescinded or amended or varied except by subsequent regulations made by Council of the Enugu State University of Science and Technology.”
Section 2.9(a) of the Regulation governing the service of Senior Staff of Enugu State University of Science and Technology provides as follows:
(a) The appointment of a staff on tenure may be terminated at any time for reasonable cause by the Council on the recommendation of the appropriate committee of Council/or Senate in accordance with the provision of these Regulations and the University Edict. For the purpose of these Regulations, “reasonable cause” mean:
i) Conviction of any offence which a Disciplinary Committee of Council considers would seriously discredit the University or seriously prejudice the person convicted and render him unfit in the performance of his duties;
ii) Gross persistent neglect of duty or misconduct either in performance of duty or in any other situation;
iii) Conduct of a scandalous or other disgraceful nature including moral turpitude which the Disciplinary Committee considers to be such as to render the person concerned unfit to continue to hold his office.
iv) Failure or inability of the person concerned to comply with the terms or conditions of service resulting from infirmity of mind or body or any other cause;
v) Misrepresentation as to qualification upon application for employment.”
Section 2.9 (b) of the said Regulation provides as follows:
“(b) Before terminating an appointment on grounds of “reasonable cause” other than on grounds of infirmity or body, the Disciplinary Committee of the Council shall;
i) Notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment, and
ii) Give member of staff concerned opportunity of replying to the grounds alleged against him.”
I also took a look at Exhibit 5. It is captioned REORGANIZATION.
The letter expressly stated that the University needs effective reorganization for survival and pursuant to that the Respondent was merely informed that his services are not required by the University with effect from 1st February, 2001.
Reorganization is an act of redundancy which exists where the employer terminates the employee’s appointment in order to achieve a reduction in the work force. The Law provides three modes of selecting employees for redundancy/reorganization as follows:
(a) Last in, first out (LIFO), Last come, first go or last hired, first fired.
(b) Managerial discretion and
(c) Social Selection [Section 20(1)(b) of the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004; AGOMA V GUINNESS (NIG) LTD (1995) 2 NWLR (PT.380) 672.
Statute 22(7)(b) and 8 of the Edict No. 9 of 1996, now Laws of Enugu State provide as follows:
“7(b) The appointment of a member of the administrative or technical staff who holds a pensionable office shall not be determined by the Council unless the person concerned has been notified in writing of the grounds on which consideration is being given to the determination of his appointment and he has been given a reasonable opportunity of making representation in person or through his chosen representative at the meeting of the Council at which the determination of his appointment is to be considered.”
8. For the purposes of this statutes, “good cause” means –
(a) conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office;
(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office.
(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concern unfit to continue to hold his office;
(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the function of his office or to comply with the terms or conditions of his service.
Statute 22 10(1) specified the retiring age for all members of the academic staff, and the administrative or technical staff of the University to be 60 years.
Enugu State University of Science and Technology was establish under the statute i.e, Enugu State Law No. 9 of 1996 Part II, Section 3(1) (2) and (3), Now Revised Laws of Enugu state of Nigeria, 2004. Being a State University established by the Law of the State, the Enugu University of science and Technology is a creation of a statute.
I have carefully perused through the statutes that discussed the condition of service of staff of the University. I could not find anywhere in the statute specifying 35 years of service.
Section 24(1) of the Revised Laws of Enugu State, 2004 provides that statutes shall be made, amended or revoked by the Council and the Senate and with the approved of the visitor.
I have studied all the Exhibits tendered in this appeal. Exhibit 9 is the minutes of the emergency meetings of the Council which gave vent to the issuance of Exhibit 5. At page 4 of the minutes, the Council listed the categories of staff of the 2nd Appellant to be disengaged from service. No. 2 on the list concerns Non-Teaching Staff who have served more than 35 years in the public service. It was on that ground that the Respondent’s name was included in the disengagement list. It is true that the Council acted in compliance with the Enugu State Government Circular through the Secretary to the State Government. The pertinent question is, can somebody, looking at the whole circumstances of this case and after verifying the contents of the Regulations and the Statutes, confidently say that the Council has amended the condition of service of the University? My answer to this question is emphatically NO. In this regard, I find it difficult to believe the reasoning and argument of the learned Counsel for the Appellants that action of the Council against the Respondent was in accordance with the prescription of the Statutes.
In the light of the foregoing, I hold that the Respondent’s disengagement from the service was not in accordance with the Statute regulating or guiding the contract of employment between the parties.
ISSUE 2
Ordinarily, an appellate Court has no business in the evaluation of evidence because of its limitation of not seeing and hearing the witnesses unless the trial court which has the duty of evaluation failed to properly evaluate the evidence adduced by the parties at the trial [WOLUCHEM V. GUDI (1981) 5 SC. 291 ODOFIN V. AYOOLA (1984) 11 SC.72.
In its duty of evaluation, a trial court has the responsibility to fully consider the evidence of the parties, ascribe probative value to it and put same on the imaginary scale of justice to determine the party in whose favour the balance tilts.
In the instant case, I am satisfied that the learned trial Judge performed that duty of proper evaluation in arriving at his findings and conclusion that:
“Without any amendment to the Law, Statute Ordinance or Regulations of Enugu State University of Science and Technology, the retirement age of the Respondent, a Deputy Registrar on monthly take home pay of N82,000.00 is 60 (sixty) years.”
In the face of the overwhelming evidence coupled with the proof of statutory flavour in the contract of employment between the parties in this appeal, I agree entirely with the reasoning of the learned trial Judge that the letter dated 1st February, 2001 reference No. ESUT/R/85 which letter reorganizing the Respondent out of his employment without more is unlawful and so null and void.
On the whole, this appeal is found unmeritorious and it is bound to fail. Consequently the appeal is hereby dismissed. The judgment of the Enugu State High Court of Justice delivered on 26/7/2005 by Hon. Justice F.K. Ezeike in Suit No. E/214/2002 is hereby affirmed with its consequential orders.
Costs of N50,000.00 is awarded to the Respondent against the Appellant.
ADZIRA GANA MSHELIA, J.C.A.: I agree with the judgment of my learned brother Abubakar Jega Abdulkadir, JCA just delivered and for the reasons given in that judgment I too would dismiss the appeal and abide by the consequential orders made therein the lead judgment, including cost.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
Appearances
Mr. A.O. Mogboh Jnr For Appellant
AND
Chief J.C. Ifebunandu with Mr. I.A. Enekwe For Respondent
