AKANDE v. IBB UNIVERSITY, LAPAI & ANOR (2020)

AKANDE v. IBB UNIVERSITY, LAPAI & ANOR

(2020)LCN/14908(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/377/2015

RATIO

LABOUR LAW: WHETHER AN EMPLOYEE THAT ACCEPTS PAYMENT AFTER THE EMPLOYMENT IS BROUGHT TO AN END CAN COMPLAIN ABOUT THE DETERMINATION OF THE EMPLOYMENT CONTRACT

Where an employee accepts payment after the employment is brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. See the case of Ekeagwu Vs. Nigerian Army 2006 11 NWLR (Pt. 991). 382 CA; Alhassan vs. ABU Zaria 2011 11 NWLR (Pt. 1259) 467 and PWTHANG vs. Ceddi Corp Ltd 2012 2 NWLR (Pt. 1285) 492.
An extension of this principle is that where an employee collects his terminal benefits or his retirement benefits and stop coming to work thereof, he has by his conduct accepted the letter and its content. In such a circumstance, the plea of estoppel will avail the employer. See the case of NEPA Vs. Eboigbe 2009 8 NWLR (Pt. 1142) 150 CA. PER OLABISI IGE, J.C.A.
SOLICITOR: WHETHER IT IS ETHICAL TO PASS SOLICITOR FEES TO THE OPPOSING PARTY

However, it is unethical and an affront to public policy to pass on the burden of solicitors fees to the opposing party. See the case of Guinness Nig Plc Vs. Nwoke 2000 12 NWLR frt. 689) 135 at 150 PER OLABISI IGE, J.C.A.
FAIR HEARING: RIGHT TO FAIR HEARING

By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal Panel or body. See:-
1. ARIORI ORS V MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23 – 24 per OBASEKI, JSC.
2. CHIEF J.L.E. DUKE V GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 AT 366 B – C per GALADIMA, JSC who said:-
“It now remains for me to consider whether the appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent.
By the term “fair hearing within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against him and be given ample opportunity to react or respond thereto.”
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a Party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside forthwith.
See:
NICHOLAS CHUKWUJEKWU UKACHUKWU VS. PDP & ORS (2014) 2 SCM 2002 AT 223 F – D 224 A – H per K.M.O. KEKERE-EKUN, JSC who said:
“The Fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity:
All FWLR (Pt. 403) 1240 @ 1255 A- B (200B) 1 SCM 204: Adigun vs. A, G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor vs. A. G. Anambra State (1991) 3 NWLP. (Pt. 1225) 329, 2010 12 (Pt. 2) 120.” PER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

EDUN AKANDE APPELANT(S)

And

IBRAHIM BADAMASI BABANGIDA UNIVERSITY, LAPAI 2. THE GOVERNING COUNCIL OF I.B.B. UNIVERSITY, LAPAI RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court of Nigeria delivered by HON. JUSTICE P. O. LIFO on 16th February, 2015 dismissing the suit of the Claimant now Appellant which he filed against the Defendants now Respondents in this appeal.

The Appellant as claimant sought from the lower Court the following reliefs:
1. An order nullifying the defendants’ letter dated 17th April, 2013 to the claimant titled “termination of appointment” purported to terminate the claimant appointment with the defendants.
2. An order setting aside the purported summary termination of the claimant appointment and nullifying the defendants letter to the claimant in that regard.
3. An order compelling the defendants to reinstate and or restore the claimant to his post as acting head of department in the I. B. B. University Lapai with all his rights, entitlements and order perquisites of his office.
4. OR IN ALTERNATIVE, to paragraph 3 above, payment of the (N250,000,000.00) Two Hundred and Fifty Naira only to the claimant as general and exemplary

damages for unlawful termination of his appointment.
5. An order compelling the defendant to pay the claimant his salaries and allowances from 1st May 2013 till the day of judgment.
6. Payment of the cost of filing and prosecution of this matter.

The same reliefs are replicated in paragraph 29 of the Appellant’s Statement of Complaints. Pleadings were duly exchanged and the matter proceeded to trial. After the adoption of Written Addresses by Learned Counsel to the parties the Learned trial Judge gave considered judgment on 16th February, 2015, wherein he said on pages 145 – 146 of the records as follows:
“It should be remembered that the claimant in the process of defending himself before the committee shouted on top of his voice and repeatedly threatened the committee. I consider this attitude as gross insubordination and disrespect to constituted authority. Moreover, by Exhibit 016, the claimant was stated to be a man of hot temper and can lose his posture and even faint when enraged. This piece of evidence about the disposition of the claimant is not denied or controverted in anyway throughout the trial.
By section/article

11(f)(iv) of Exhibit 11, it is stated as follows;
“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 and conditions of his service.”
Can it be said that the temperament and emotions of the claimant is congenial for training of young ones where morals, discipline, decorum, decency and tolerance are the hallmarks? I doubt seriously.
By the provision and conduct of Exhibit 24A, the claimant was paid his three months’ salary in lieu of notice and his terminal benefits all totally the sum of N3,550,844.11 on the 18th of April, 2013, forty two days before he instituted this suit. Where an employee accepts payment after the employment is brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. See the case of Ekeagwu Vs. Nigerian Army 2006 11 NWLR (Pt. 991). 382 CA; Alhassan vs. ABU Zaria 2011 11 NWLR (Pt. 1259) 467 and PWTHANG vs. Ceddi Corp Ltd 2012 2 NWLR (Pt. 1285) 492.
An extension of this principle is that where an employee collects his terminal benefits or

his retirement benefits and stop coming to work thereof, he has by his conduct accepted the letter and its content. In such a circumstance, the plea of estoppel will avail the employer. See the case of NEPA Vs. Eboigbe 2009 8 NWLR (Pt. 1142) 150 CA.
The Claimant in this case was paid the 3 months salary in lieu and his final entitlements. He accepted same and stopped going to report for duty and waited more than a month to file a complaint in Court; moreover, he did not protest by exercising his right of appeal as provided for in article 6.3 of Exhibit 018 of the condition of service. He has accepted the sum as settlement of his termination entitlements; he cannot be heard to complain.
On the issue of claim for filing and prosecution of this case, there is no evidence whatsoever in the entire trial to show the cost of filing and prosecution of this suit as such special damages need to be proved specifically. Is the claimant expecting the Court to calculate the cost of filing this suit as well as the cost of prosecuting? i.e. the solicitors fees and out of pocket expenses?
However, it is unethical and an affront to public policy to pass on the

burden of solicitors fees to the opposing party. See the case of Guinness Nig Plc Vs. Nwoke 2000 12 NWLR frt. 689) 135 at 150
On the whole, once it is shown that termination is in accordance with the terms of the employment the issue of natural justice does not arise. See the case of ADAMS VS. LSDPC 2000 5 NWLR (PT.656) 291.
From the available evidence and the exhibits in this case I hold that the termination of the claimant’s employment was lawful. Consequently, issues one and two formulated for determination by the claimant counsel are resolved in the affirmative while issue three is resolve in the negative.
On the issues formulated by the defendant counsel for determination, issue one is resolved in the negative while issue two is resolve in the affirmative.
For the avoidance of doubt, I hold that the claimants case fails and is accordingly dismissed.
I make no order as to cost.”

The Appellant was aggrieved by the judgment and has by his Notice of Appeal dated 2nd April, 2015 and filed on 14th April, 2015 appealed to this Court on two grounds which with their particulars are as follows:
<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

GROUNDS OF APPEAL
GROUND ONE
(i) The learned trial judge erred in law when it held thus:-
“Fair hearing means, an opportunity to be heard. The various exhibits earlier highlighted shows that the claimant was given a query, there was a response, he appeared before a disciplinary committee and he was appropriately disciplined.”
PARTICULARS OF ERROR
i. The evidence before the Court was that the and 2nd Respondent who noted the purported disrespectful language in EXHIBIT EMA20 constituted three of its members, as members of the senior Staff disciplinary committee that tried the Appellant.
ii. The report of the senior staff Disciplinary committee EXHIBIT EMA16 made reference to some facts which were neither part of the query issued to the Appellant, nor its reply to it.
iii. The Appellant was not heard on all the issues considered in EXHIBIT EMA16 before terminating its appointment based on the said EXHIBIT EMA16.
GROUND TWO
The Judgment is against the weight of evidence.
Further grounds of Appeal shall be filed on receipt of the record of proceedings.
RELIEFS SOUGHT FROM COURT OF APPEAL
(i) An order allowing the appeal.

(ii) An order setting aside the judgment of the lower Court and in its place granting reliefs 1, 2, 3, 5 or 4 stated in the Appellants complaint at the trial Court.”

The Appellant’s Brief of Argument was dated and filed the 20th November, 2015 but deemed properly filed on 20th February, 2018 while the Respondents’ Joint Brief of Argument dated 13th June, 2018 was filed on 2nd July, 2018. It was deemed properly filed on 14th January, 2019. The Appellant filed Reply Brief on 25th January, 2019.

The Learned Counsel to the Appellant distilled two issues for determination:
i. “Whether the requirement of fair hearing have been complied with by the Respondents’ before the purported termination of the Appellant’s employment/appointment on 17/4/2013 (Distilled from Ground 1)
ii. Whether the Appellant is entitled to the reliefs’ sought before this Court.” (Distilled from Ground 2).

On his part, the Learned Counsel to the Respondents also nominated two issues for determination viz:
1. Has the Appellant made out any case of denial of a fair hearing for which the Court can grant the reliefs sought?
2. What is the

competence or otherwise of the Appellant’s second issue for determination deriving from ground No. 2 of the ground of appeal?

The appeal will be determined on the two issues nominated by the Appellant. The two issues will be taken together:
ISSUE 1 AND 2
1. “Whether the requirement of fair hearing have been complied with by the Respondents’ before the purported termination of the Appellant’s employment/appointment on 17/4/2013
2. Whether the Appellant is entitled to the reliefs’ sought before this Court.

The Learned Counsel to the Appellant AMOS SANYA ALI Esq., who settled the Appellant’s Brief of Argument’s premised his submission on Section 36(1) of the Constitution of the Federal Republic of Nigeria and contended that the Respondents deliberately breached the Constitution when they terminated the Appellant’s appointment.

According to him, the Respondents constituted disciplinary committee over what they considered to be Appellant’s uncouth language in Exhibit EMA012. That this complaints of Respondents were made in Exhibit EMA06. He referred the Court to pages 78 & 90 of the record. He also relied on

Exhibit EMA021. He named those who he said tried the Appellant to carry out their pre-determined objective in that they referred to Appellant as insubordinate to constituted authority. He relied on pages 75 and 139 of the record as well as page 15 of supplementary record of appeal.

According to Learned Counsel to the Appellant, the Disciplinary Committee of the 2nd Respondent was not constituted in such a manner as to ensure its independence and impartiality. That there was a real likelihood of bias as according to him, 2nd Respondent was the complainant, prosecutor, witness and also the executioner.

That any pecuniary interest, no matter how small is sufficient to disqualify three of the Committee members of the Senior Staff Disciplinary Committee from adjudicating on the matter. He relied on the case of GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550. That justice must not only be done but should manifestly and undoubtedly be seen to be done.

He also complained that the Senior Staff Disciplinary Committee that tried the Appellant, aside its composition, went on a frolic of its own in its Report Exhibit EMA01 outside the subject

of Exhibit EMA06 which was the query issued to the Appellant. He referred to pages 2 and 3 of Exhibit EMA016, the report of the committee particularly paragraphs 1 – 7 which he said were considered by the said Committee. He referred to pages 86 – 89 of the record of appeal.

According to Learned Counsel to Appellant, DW1 misled the lower Court when DW1 stated that items 7 was part of subject matter of the query to the Appellant. He placed reliance on page 78 of the record of Appeal and page 15 of supplementary record. He submitted that oral evidence was expressly excluded from the content of Exhibit EMA06 and EMA016 (query and EMA016).

That the Appellant was not heard at all on all the items in Exhibit EMA016 which he said were exclusively within the knowledge of the committee set up by the Respondents. That Exhibit EMA016 expressly violates the principle of audi alteram partern in and as such null and void.

That DW1 admitted he was only seconded to the Respondents in October, 2010 and as such, Learned Counsel to Appellant submitted that example 3 and others mentioned on Exhibit EMA016 are not within DW1’s knowledge as he was not in the

Respondents’ service as at then. He therefore urged the Court to discountenance Exhibit EMA016 in its entirety as being hearsay and not of any probative value. That no weight could be attached to it. That the said Exhibit EMA016 is the basis for the purported termination of the Appellant’s appointment. That the said Exhibit EMA016 is hearsay. He also relied on Exhibit EMA07.

That the nature of evidence against the Appellant was withheld from him in breach of his right to fair hearing. That he was not given a fair hearing before Respondent purportedly imposed punishment on him. That constitutional guarantee to fair hearing is applicable to all trials whether judicial quasi – judicial, or administrative. He relied on the cases of:
1. WILSON V. AG Bendel (1985) 1 NWLR (PART 2) 572 at 574 – 575.
2. AIYETAN V. NIFOR (1987) 2 NWLR (PART 59) 48
3. MUBI V. T.I.M. YUSUF & ANOR
4. NNOLI V. UNIVERSITY OF NIGERIA TEACHING BOARD & ANOR (1994) 10 SCNJ 71.

He urged the Court to hold that both the composition and the report of the Senior Staff Disciplinary Committee Exhibit EMA016 trampled upon the Appellants right to fair hearing

guaranteed under Section 36(1) of the 1999 Constitution as amended. That the termination of Appellant’s employment/appointment based on Exhibit EMA016 is null and void.

In response to the above submissions, the Learned Counsel to the Respondent Solomon MENEGBE, Esq., submitted that the onus was on the Appellant to establish his case in accordance with the Rules of Court, Section 132 and 133 of the Evidence Act and his pleadings. He relied on the cases of ADEDEJI V. OLOSO (2007) 133 AT 196 and EZINWA V. AGU (2004) 3 NWLR (PART 861) 43 449 B. That a perusal of the Appellant’s Pleading and Witness Statements on Oath along with exhibits tendered do not disclose or reveal any violation of Appellants terms of employment. He relied on the Cross Examination of the Appellant on page 13 of Additional whereat the Appellant said he was paid his salaries and three months salaries also in lieu of Notice. That the Appellant stated he did not tell the Respondents to remove the monies paid to his Account. He contended, it amounts to raising new issues for the Appellant to now complain of composition of disciplinary committee without seeking leave to do so. That no evidence

of victimization was put forward by the Appellant. He relied on the case of UNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR (PART 417) 225, ADAMS V. UMAR (2008) LPELR 3591 CA at 104 – 105.

The Learned Counsel to the Respondent submitted that in the absence of any pleading concerning breach of conditions of service, the Appellant has not made out any case of infractions of his rights.

On the relief being sought by the Appellant to the effect that this Court should order Appellant’s reinstatement to his post as acting Head of Department in the 1st Respondent, the Respondent’s Learned Counsel stated that it is on record that the said Department has been subsumed into a new Faculty of Languages and Communication Studies and that Appellant’s Appointment was not terminated as Head of Department but as a Staff of the University.

That the appeal of Appellant borders on facts not pleaded and issues not joined at the trial Court. He urged the Court to discountenance the Appellants claims. He relied on the case of NSIEGBE ANOR V. MGBEMENA ANOR (2007) ALL FWLR (PART 364) 1776. He submitted that any evidence obtained under Cross Examination of DW1 on facts not

pleaded goes to no issue. He urged the Court to resolve issue 1 against the Appellant.

On issue 2, the Learned Counsel to the Respondent is of the view that issue 2 is incompetent having been formulated from an omnibus ground of appeal. He submitted argument on issue 2 has no bearing to issue No 2 as couched. He stated the issue is incompetent. He relied on the cases of NONGU V. LGSC & ANOR (2011) LPELR – 4851 (CA) and AMADI V. NNPC (2000) 6 SC (PART 1) 66 at 72.

On what is an omnibus ground of appeal in Civil Proceedings, he relied on the case of OMOTOSHO & ORS V. IFE NORTH LOCAL GOVERNMENT (2009) LPELR – 8728 (CA). He submitted that an Omnibus ground of appeal cannot be utilized to formulate an issue of law in an appeal. He relied on the case of AKINLAGUN VS. OSHOBOJA (2006) ALL FWLR (PART 325) 53 at 75 and ADEJOH V. OLOFU & ORS (2014) LPELR – 22347 CA among other cases cited.

On the merit, it is the submission of the Learned Counsel that this Appellate Court will not lightly interfere with findings of facts by lower Court unless it is shown to be perverse. He submitted that the Appellant has not challenged the findings made by the

lower Court and as there is no evidence, according to Learned Counsel of any specific findings of facts by the lower Court that is perverse. He urged the Court not to disturb the findings of fact made in this case by the lower Court. He relied on the case of OBIDIKE V. STATE (2014) LPELR – 22590 SC.

In Reply Brief of Argument filed on behalf of Appellant, his Learned Counsel insisted that issues were joined on lack of fair hearing. He referred to paragraphs 2, 22 and 28 of Statement of Complaint on pages 6 – 7 of record and paragraph 19 of the Joint Statement of Defence of the Respondents. He further relied on Exhibit EM016 (Report of the Disciplinary Committee) which he said contained extraneous matter that were not made part of the query given to Appellant by Respondents on issue of insubordination.

On issue 2, Learned Counsel to the Appellant said he “has no reply argument to issue no 2.

By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or

authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal Panel or body. See:-
1. ARIORI ORS V MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23 – 24 per OBASEKI, JSC.
2. CHIEF J.L.E. DUKE V GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 AT 366 B – C per GALADIMA, JSC who said:-
“It now remains for me to consider whether the appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent.
By the term “fair hearing within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side

has the right to know what case is being made against him and be given ample opportunity to react or respond thereto.”
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a Party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside forthwith.
See:
NICHOLAS CHUKWUJEKWU UKACHUKWU VS. PDP & ORS (2014) 2 SCM 2002 AT 223 F – D 224 A – H per K.M.O. KEKERE-EKUN, JSC who said:
“The Fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or

determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity:
All FWLR (Pt. 403) 1240 @ 1255 A- B (200B) 1 SCM 204: Adigun vs. A, G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor vs. A. G. Anambra State (1991) 3 NWLP. (Pt. 1225) 329, 2010 12 (Pt. 2) 120.”

The sheath anchor of his case is that he was not heard on all issues considered in Exhibit 16 before he was terminated based on Exhibit EMA16 and that the Lower Court was wrong in holding that by the various Exhibits tendered, the Appellant was given a query to which he respondent and he, Appellant also appeared before disciplinary committee that disciplined the Appellant.

The Learned Trial Judge was right in its findings. The evaluations of the oral and documentary evidence relating to the termination of Appellant’s appointment were diligently carried out

by the trial Court. The Appellant was not denied any opportunity of fair hearing or of being heard by the Respondents.

It was the Appellant’s letter of 8/1/2013, Exhibit 012 to the Respondents that ignited his problems with the Respondents soon after his previous letter of termination of appointment was rescinded by the Respondents and Appellant was recalled to his duty. The said letter Exhibit 012 reads:
“The Vice Chancellor,
IBB University, Lapai,
Niger State
08/01/2013
Attention: The Registrar.
Sir,
RE: LETTER OF RECALL TO DUTY ON THE APPOINTMENT REQUEST FOR STATUTORY PAYMENT OR RESTORATION OF OUTSTANDING SALARIES FOR THE MONTHS OF JULY 2011 TO NOVEMBER 2012.
I wish to refer to the letter Ref: MTEST/GEN/D02/614/1 dated 28/11/2011 (copy attached) from the Ministry of Tertiary Education, Science and Technology, Minna Niger State on the termination of my appointment in error as it was based on the intention of the IBB University, Lapai to phase out Arabic end French Programmes.
Sequel to my letter dated 23/10/2012 (highly necessary/relevant) in the File Ref: SPF/141 on the above subject matter and the

current letter dated 27/11/2012 (copy attached) in compliance to your directives to assume duty immediately as the Arabic and French programmes which are statutorily in existence since the inception of the University in 2006, the programmes are still existing, no longer phasing out and continue to exist in the interest of the general public and humanity as a whole, considering the socio-economic implications and general damages emanated from the Vice Chancellor error in terminating my appointment unlawfully, solely predetermined without following due process and ironically on the 06/07/2011 (copy attached marked “X”) a day before the management meeting on the 07/07/2011 and exactly the period I lost my Father despite my communication on the death to the management, AND, taking cognizance of the Vice Chancellor’s error, having been reinstated on my duty/Appointment; I humbly request for the statutory payment, or restoration of my outstanding salaries for the months of July, 2011 to November, 2012 along with subsequent wages salaries increase as pronounced and considered by the Federal and State Governments as statutorily paid to date to other colleagues

Lecturers of Arabic and French studies (those appointed/recruited in May 2010 inclusive) who, in the interest of transparency, justice and equity, could have had their appointments terminated as well for the same reason if really the programmes are phased out as mentioned in the attached letter dated 28/11/2011 after necessary investigations as directed by His Excellency, the Chief Servant and Governor of Niger State, from the Ministry of Tertiary Education, Science and Technology, Minna – Niger State contradicting Item 5.3 minutes of the 13th regular Meeting of the Governing Council, IBB University, Lapai held on 12th May, 2010, on the Councils earlier intervention and true position or directives for implementation of the phasing out of Arabic and French programmes but to allow the existing students of the programmes involved to graduate AND NOT to terminate the appointment of lecturers of the programmes in reference precisely my appointment without any intention or indication to resign or withdraw from the service while students are still offering the courses till date.
Thank you sir, for your kind consideration of the statutory payment or restoration

of my outstanding monthly salaries from 2011 to November, 2012 as paid or restored in the month of December, 2012.
Edun, M. Akande
French Unit
IBB University Lapai
Niger State – Nigeria
GSM: 08055604132
Cc: Chairman Governing Council, IBB University, Lapai
For your Information and necessary action please.”

The Respondents queried the Appellant for what they considered uncouth language employed in this letter of 8th January, 2013. This was by letter dated 28/1/2013 Exhibit EMA019 titled “Letter of Query” and it reads:
“IBRAHIM BADAMASI BABANGIDA UNIVERSITY P.M.B 11 LAPAI, NIGER STATE, NIGERIA OFFICE OF THE REGISTRAR
Vice-Chancellor: Prof. Ibrahim A. Koto, mfa Fcisson, Fonae Ph.D (BUK)
Registrar: Samaila Mulammed, B.A Ed ABU, N.A. BUK, PGFPA, ASCON.
Your Ref:
Our Ref: SPF/141
28th January, 2018
Letter of Query
Your letter dated 8th January, 2013 in which you requested for the payment of your outstanding salaries refers.
The Council at its meeting on Monday 21st January, 2013 noted with great concern the disrespectful language you used in the said letter,

which is an act of insubordination to the constituted authority.
You are hereby requested to explain within 24 (twenty four) hours on receipt of this letter, the reason why disciplinary action shall not be taken against you for your misconduct.
You should route your response through your head of Department.
Thank you.
Signed
Samaila Muhammad
Registrar/Secretary to Council.”

The letter of query was replied on the same date. The Appellant said in the representation he made to the Respondents as aforesaid as follows:
“The vice Chancellor,
IBB University, Lapai,
Niger State.
Attention: The Registrar.
Through: Ag. Head, French Department.
Re: Letter of Query Arising from Letter of Request for payment of Outstanding Salaries (July 2011 to November, 2012).
With all humility and total respect that I wish to refer to your letter dated 28/01/2013 received the same date at 18:23:09 on the above subject matter and subsequently submit the followings:
1. That, the use of language in my letter of request dated 8/01/2013 as reflected in your letter in reference was never a sign

of disrespect on my part to the constituted authority as “disrespect” is never in my character and not in my intention to do so.
2. That the course of my presentation for more clarification and logically the true positions of the scenario, circumstances that led to the termination of my appointment while forwarding my official request for the payment of outstanding salaries as courtesy of Human Rights demands, if the “Choice of language” in the letter is taken as “disrespectful”. I am very sorry and ask for Council Management to temper justice with mercy.
Thank you.
EDUN M. A.
French – Department
IBB University, Lapai.”

The letter terminating the Appellant’s appointment on 17th April, 2013 from Respondents employment was tendered as Exhibit EMA07. The letter reads in full:
“IBRAHIM BADAMASI BABANGIDA UNIVERSITY P.M.B 11 LAPAI, NIGER STATE, NIGERIA OFFICE OF THE REGISTRAR
Vice-Chancellor Prof. Ibrahim A. Koto, mfa Fcisson, Fonce Ph.D (BUK)
Registrar: Samaila Muhammed, B.A Ed ABU, N.A. BUK, PGFPA, ASCON.
Your Ref:
Our Ref: SPF/141
17th April, 2023
Mr. Edun, Mercillin Akande,

Department of French,
Faculty of Languages & Communication Studies,
IBB University,
Lapai.
Termination of Appointment
The University Governing Council at its 21st Regular Meeting held on Monday, 15th April, 2013 had received the report of the Senior Staff Disciplinary Committee which deliberated on your case.
The Senior Staff Disciplinary Committee recommended the termination of your Appointment and Council has given approval with effect from 30th April, 2013.
Bases on the contents of this letter, all your entitlements have been worked out thus:
1. Fourteen (14) months outstanding salaries (i.e. 17 months less the 3 months paid to you in lieu) which amounts to N2,923,314.25.
2. Payment of Three (3) months. (May, 2013 – July, 2013) in lieu of notice of termination of appointment to N627,529.86.
The total amount sent to your account is N3,550,844.11 (see attached P. V. and deposit slip)
You are expected to handover all properties belonging to the French Department and the Staff Identity Card to the Head of Department (French) and the Chief Security Officer, respectively.

Wishing you success in your future endeavors.
SIGNED
Sama’ila Muhammad
Registrar.”

I am of the firm view that from the close and calm reading of the above documentary evidence, the Appellant vehement complaint of denial of fair hearing is grossly unfounded.

I believe it is also necessary to bring to the fore the content of the minutes of meeting of Respondents Governing Council of 15/4/2013 which also reads thus:
“IBRAHIM BADAMASI BABANGIDA UNIVERSITY (Office of the Registrar)
Minutes of the 21st Regular Meeting of the Governing Council        Action
Held on Monday 15th – April 2013 at the IBB University Council Chamber Lapai
1. Mai. Suleyman A. Ndanusa, OON Pro-Chancellor/Chairman
2. Prof. Ibrahim A. Koto Vice Chancellor/Member
3. Prof. Faruk R. Haruna.            Member
4. Dr. Mohammed N. Maiturare        “
5. Dr. Gambo T. Yusuf            “
6. Engr. Inuwa K. Musa, MFR FNSE, mni   “

Hon. Abdulahi M. Sani            “
8. Mr. James D. Chidawa            “
9. Prof. Baba Alfa                “
10. Dr. Muhammad Y Auna            “
11. Alh. Yahaye B. Aliyu            “
12. Prof. Michael O. Ogunlana        “
13. Alh. Adamu Ahye Garafim        “
14. Mr. Jide Olukoju                “
15. Dr. Elizabeth M. Angutu, mni        “
16. Alh. Salihu M. Ahmed            “
17. Alh. Shehu K. Mohammad        “
18. Mal. Samaila Muhammad    Registrar/Secretary
Absent
19. Hon. Isa Liman Kantigi

In Attendance
20. Alh. M. D. Suleyman Bursar
21. Mr. Sunday A. Opoola Secretarial
22. Musa M. Mahmood Secretarial
Report of the Senior Disciplinary Committee on the case of Mr. Mercellin.
The Chairman of the committee presented the report to Council in respect of the above assignment given to them. The Committee observed that after thoroughly examining and interacting with Mr. Edum it was clear that management was only tolerating his insubordination and in the opinion of the Committee had exercised enough restraint for not relieving him of his job long ago.
The Committee noted that a person of his temperament is not fit to be employed in any institution of learning where moral, tolerance and discipline are (in addition to knowledge) to be inculcated in the younger ones.
The Committee recommended to Council as follows:
i. That the employment of Mr. Eden Marcellin Akande with IBB Lapai be terminated for Gross Misconduct as provided by Section 6: 1(d) of the Regulations Governing the condition of Appointment and Service…

That all arrangement be made for payment of his entitlements Council considered the report and approved the recommendation for the termination of appointment of Mr. Edun Mercellin Akande with immediate effect. The management was directed to pay him his entitlements.
The Chairman commended the member of the Committee for a good job.”
Suleyman A. Ndanusa, OON Samaita/Muhammad
Chancellor/Chairman Registrar/Secretary

Now the Appellant also complained that the composition of Senior Staff Disciplinary Committee Minutes of Meeting of 13-2-2013 Exhibit EMA016 infringed on his right and that the Committee went on a frolic in that it consideration of issues in it were out the scope of query given to Appellant as Exhibit EMA06 issued to him on 28/1/2013.
The facts remain that he was given ample opportunity to defend himself because by his pleading and evidence he appeared before the Disciplinary Committee and made representation. He even told the Committee that he was hot tempered hence some of his outbursts even before the committee. He had earlier written letters to the Respondents apologizing for his acts of insubordination and behavior yet

in a latter letter he also exhibited the same act of insubordination.
He did not at any time, not even his pleading and witness statement oath complain of impartiality or bias by any member of the Senior Staff Disciplinary Committee towards him or against him. It is in this Court that he woke up like a jack from its box to complain of lack of fair hearing and partial Constitution of Senior Staff Disciplinary Committee. This the Appellant cannot do. A party must be consistent and straight forward in stating and in the prosecution of his case. He cannot be allowed to take a particular stance at the trial Court, and attempt jettison or discard the case set out at the lower Court and embark on a voyage that is not covered by his pleadings or case postulated at the Appellate Court. This Court will cut short such unlawful excursion based on facts not pleaded or agitated at the trial Court. See
1. TRADE BANK PLC & ORS VS PHARMATEK INDUSTRIAL PROJECTS LTD (2020) 8 NWLR (PART 1725) 124 AT 176 H – 177 A – F per EKO, JSC who said:-
“The Crux of the two appeals is: whether, in fact, the respondent as the plaintiff at the trial Court, pleaded against

the appellants herein any facts challenging the validity of Exhibits 5, 6, & 7? Agreed, he prayed in, paragraph 43 (h) of the statement of claim that those instruments Exhibits 5, 6 & 7, be declared illegal, null and void and of no legal consequence. The relief was however premised or founded on no veritable pleading in the amended statement of claim, and of course the statement of defence. Relief 43(h) in the amended statement of claim, if William Shakespeare were to describe it, he would have liken to a tale told by an Idiot, full of sound and fury and yet signifies nothing. It fits into the celebrated statement of Lord Denning, in Macfoy v. UAC Ltd. (1961) 3 E.R. 1169, that one cannot place something upon nothing and expect it to stand. The respondent had thus placed or predicated relief 43(h) upon no pleading and expected that the relief would fly or succeed. Not all. A relief predicated upon no pleading, like a phantom, is founded on nothing, and from nothing the respondent would expectedly, get nothing period. The very basic and trite principle of pleading is that all evidence, so also relief, on facts not pleaded go to naught. The rules of

pleading are derived from the rules of fair hearing; particularly the rules of audi alterem partem, which enjoin adversaries in litigation to give the other party an opportunity to be heard on the point they found either their claim or defence. It also means that the party, bound by his pleading cannot make a case different from what he had set out in his pleadings: Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 at 675. Trial by ambush is not acceptable in judicial proceedings; since Courts of justice insist on fair hearing, either under the Constitution (S. 36 thereof in particular) or the rules of natural justice.”
The Appellant throughout the entire duration of his evidence as contained in his Witness Statement on Oath and adopted by him along with documents tendered, he did not pinpoint any regulation or conditions of his employment that was breached by the Respondents for the termination of his employment.

Perhaps due to oversight or outright forgetfulness, the Appellant failed to understand that his claims were in the alternative. He failed in the quest for main reliefs as rightly found by the lower Court. He acknowledged that all his

outstanding salaries and emoluments before his termination and three months salaries in lieu of Notice were paid to his account. This much he admitted during cross examination and that he never complained nor refunded the monies paid to the Respondents. This is fatal to Appellant case:
See: (1) B. A. MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PART 145) 506 528 F – H per KARIBI WHYTE JSC who said:
Learned counsel to the respondents submitted quite rightly that it was averred in paragraph 2 of the defendant’s statement of defence, that appellant’s appointment was properly validly terminated in accordance, with the provisions of the regulations Governing of Service of its Senior Staff. This Regulation was tendered, admitted and marked Exhibit 2. Exh.2A, i.e. page 3 of Exh.2, prescribed the conditions for termination of appointment for conduct other than misconduct. It provides for the giving of three months notice, or three months’ salary in lieu of such notice. The provision applies to Senior Staff leaving the employment of the defendant. This evidence was part of the case of the appellant. He admitted he was paid three

mouths’ salary in lieu of notice as provided in Exh.2A. Thus conceding for the purposes of this argument that appellant has a contract of employment with the defendant, that contract was validly and properly determined by appellant’s acceptance of its determination, i.e. the acceptance of the three months salary paid to him in lieu of notice. – See Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 S.C. 374. If appellant had rejected the three months’ salary in lieu of notice, the unilateral repudiation of his contract of service with the defendant by the appellant would not have operated to determine the contract – See Olaniyan & Ors. v. University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599 at p.683. His conduct rendered the determination mutual.”
2. GUINNESS NIGERIA LIMITED VS MRS MARGARET AGOMA (1992) 7 NWLR (PART 256) 728 at 742 per EJIWUNMI, JCA who said:
“Be that as it may, the central question here is whether the respondent had an enforceable contract after she had collected all her entitlements from the appellant following the receipt by her of her termination.
Having received all her just entitlements from the

appellant following her retrenchment, it seems to me that she has put to rest any contract real or imagined which she had or thought that she had with the appellant. The position of the respondent is not dissimilar to the appellant in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506. In that case, the appellant sued his employers that the purported termination of his appointment is null and void and that the appellant is entitled to his emolument until the determination of the suit and thereafter until the appellant is legitimately relieved of his post.”

The Respondents gave adequate opportunity to the Appellant to make representation before his employment with them was terminated. It must be borne in mind that a party to a proceeding cannot invoke the sacred provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended put in place to ensure sanctity of fair hearing to every person in the determination of his civil rights and obligations before impartial arbiter, at his beck and call unless he can show or prove that the Court, Tribunal, Panel or a quasi-judicial body actually breached or

violated his right to fair hearing. A party will not be allowed to clamour for attention of the Court that his right to fair hearing has been circumvented without opportunity of being heard for the fun of it. Fair Hearing doctrine is not a blanket to cover one’s iniquity that was rightly exposed and punished. See GOVERNOR OF IMO STATE ORS VS E. F. NETWORKS NIG. LIMITED & ANOR (2019) 9 NWLR (PART 1676) 95 at 111 F – H to ARIWOOLA, JSC who said:
“What then is fair hearing” this has long been answered by the Court in Isiyaku Mohammed v. Kano NA. (1968) I All NLP. 424 at 426; (1968) SCNLR 558 at page 561 paras. A-B, per Ademola, CJN delivering the judgment of this Court as follows:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.”
The term “fair hearing” has also been judicially interpreted to involve

situations, whether having regard to all the circumstances of a case.
The hearing may be said to have been conducted in such a manner that an impartial observer will come to the conclusion that the Court or Tribunal was fair to all the parties to the proceedings. Indeed, it is said to mean trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter. See; Military Governor of Imo State & Anor v Chief B.A.E Nwauwa (1997) LPELR – 1876, (1997) 2 NWLR (Pt. 490) 675.
Generally, hearing cannot be said to be fair if any of the parties in a case is refused a hearing or denied the opportunity to be heard, present his case or call his witnesses.
However, in Major Bello M Magaji v. The Nigerian Army (2008) 8 NWLR (Pt.1089) 338 page 377 paras. F -G; (2000) 34 SCQR (Pt.1) 108; 5 SCM 156, R (2008) LPELR – 1814, the Court opined that, it has become a fashion for litigants to resort to their right to fair hearing on appeal, as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both

parties in the litigation, in the interest of fair play and justice. The Court had held further as follows:
“Fair hearing is not a cut-and-dry principle which parties can in the abstract, always apply to their comfort and convenience. It is principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” Per Tobi, JSC.
In reference to Orugbo v. Una (2002) 16 NWLR (Pt. 1792) 217 @ 211 – 212.
In this matter, one wonders what the appellants take the Court for. There is no doubt that the trial Court had been too patient with the appellants in accommodating their lack of diligence and seriousness in the manner they had handled the matter. The trial Court gave the appellants opportunity to be heard but they failed to cease the opportunity. All parties in a matter are entitled to fair hearing. In other words, both the plaintiffs and the defendants are entitled to be treated fairly. Both are entitled to justice and this must be

seen to be done. It is rather most unfortunate, the way the counsel to the appellants handled the case from the trial Court until now. It certainly leaves much to be desired. The appellants should have themselves to blame for the outcome of the case with the lackadaisical way they handled the matter.”
Issue 1 is therefore resolved against the Appellant.

The Respondent complained that issue 2 cannot reasonably arise from omnibus ground of appeal in that it does not query assessment of evidence by lower Court but challenging some issue of law.

The settled position of the law is that a question for determination cannot be generated from an omnibus ground of appeal to query or challenge question of law which must arise from specific ground(s) of appeal and against specific findings of trial Court.
There is no gainsaying the fact that the Appellant’s Learned Counsel fall into error in raising or formulating issue that borders on violation of law or statute as argued under issue 2, from an omnibus ground of appeal. All the argument or submissions made under issue two go to no issue. See
1. SIMEON LALAPU V. COP (2019) 16 NWLR (PART 1699)

476 at 492 F-C per GALUMJE, JSC who said:
“The ground of appeal is also not directed at the decision of the Court of Appeal, even though the appellant mentioned that the ground is against the decision of the lower Court. The contents of the 7th ground of appeal do not show that it is against the decision of the Court of Appeal. None of the parties adduced evidence before the lower Court. Omnibus ground of appeal is normally directed at the decision of the trial Court that assessed the evidence adduced before it. A valid ground of appeal in respect of assessment of evidence should be attack on how the Court of Appeal considered the performance of the trial Court generally. I am of the firm view that the 7th ground of appeal is incompetent as well. It is struck out”.
2. MRS GRACE CHIADI & ANOR VS MISS OPUINE AGGO & ORS (2018) 2 NWLR (PART 1603) 175 211 212 A-D per AKAAHS JSC who said
“Where there is a complaint on the omnibus ground that the judgment is against the weight of evidence, the appellate Court must consider the complaint which must be concerned mainly with the appraisal and evaluation of all evidence rather than with

specific findings of fact on an issue or weight to be attached to particular piece of evidence. Where an omnibus ground is filed, it cannot be used to raise issues of law. This is because the omnibus ground postulates that there was no evidence, which if accepted would support the finding of the trial Court or the inference which … 14 NWLR (Pt. 638) 225; Sparkling Breweries v. Union Bank Ltd. (2001) 15 NWLR (Pt. 737) 539; Lagga v. Sarhuna Supra at 453.
Considering the grounds and issues raised in this appeal, it is difficult to decipher what learned counsel for the appellants is complaining about. The grounds are vague and meaningless as the learned counsel appearing for the appellants did not seem to make clear what his complaints are in the grounds of appeal and so do not give the respondents and the Court notice of the case to be met nor narrow the issues on appeal, this being the main aim of the grounds of appeal. See: Orakosim v. Menkiti (2001) 9 NWLR (Pt. 719) 529; Shanu v. Afribank Plc (2002) 17 NWLR (Pt. 795) 185; Iwuoha v. NIPOST (2003) 8 NWLR (Pt. 822) 308. A ground of appeal ought to make clear what the appellate Court should “hear and determine”

against the judgment or decision appealed against. And where it cannot be deduced from the ground the issue to be determined, the ground is vague and is liable to be struck out as being incompetent. See: Lagga v. Sarhuna supra.”

No wonder the Learned Counsel to the Appellant conceded point blank that he has no reply to submissions of Respondents under issue 2. Issue 2 is struck out along with ground 2 of the Notice of Appeal.

Issue 1 raised for determination by the Appellant is hereby resolved against the Appellant. The Appellant’s appeal is lacking in merit. It is hereby dismissed in its entirety.

The judgment of the National Industrial Court of Nigeria (Coram LIFO,) delivered on 16th February, 2015 is HEREBY AFFIRMED.
There will be no order as to cost

YARGATA BYENCHIT NIMPAR, J.C.A.: I read in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in complete agreement with the resolution of the issues. I have nothing more to add.

I too dismiss the appeal and abide by the other orders made in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the opportunity of reading before now, the lead Judgment just delivered by my learned brother, Peter Olabisi lge, JCA.

I agree with the reasoning and conclusion reached therein. I therefore dismiss the appeal. I also affirm the judgment of the National Industrial Court of Nigeria (Coram LIFU) delivered on 16th February, 2015.
I make no order as to costs.

Appearances:

D. SULYMAN, ESQ. For Appellant(s)

SOLOMON MENEGBE, ESQ. For Respondent(s)