GARBA v. GOVERNOR OF KANO STATE VISITOR KUST, WUDIL & ORS
(2022)LCN/16719(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/K/98/2015
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
PROFESSOR IBRAHIM GARBA APPELANT(S)
And
1. THE GOVERNOR OF KANO STATE VISITOR KANO STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, WUDIL 2. THE GOVERNING COUNCIL, KANO STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY WUDIL 3. KANO STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, WUDIL 4. PROFESSOR UMAR GARBA DAMBATTA 5. THE ATTORNEY GENERAL, KANO STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE MEASUREMENT OF DAMAGES IN AN EMPLOYMENT ACTION FOR WRONGFUL DISMISSAL
By law, such damages consist of what was the entitlement of the Appellant, had he been allowed to complete his term of service to the 3rd Respondent, and that would be calculated from his salaries and basic allowances (entitlements) due to him, from October, 2012, when he was forcefully removed from office, to 23rd October, 2013, when he was to complete his 4 year term of service. See the case ofEze Vs Spring Bank Plc (2011) LPELR – 2802 (SC), where it was held:
“It should also be appreciated that in employment matters and claims for wrongful dismissal, the measurement of damages is, prima facie, the amount that the plaintiff would have earned, had the employment continued according to contract. See NMB Vs Adewunmi (1972)11 SC N1; Beckham Vs Darke (1849) 2 HCC 579. Where however, the defendant, on giving the prescribed notice, has a right to terminate the contract, before the end of the term (in respect of term contract), the damages awardable (apart from the entitlements earlier stated) should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal. See Denmark Production Ltd Vs Boscobel Productions Ltd (1968)1 All ER 513 at 524. See also SELCON Tannery Ltd Vs Abubakar & Ors (2013) LPELR-21412. In the case of New Nigeria News-papers Ltd Vs Atoyebi (2013) LPELR-21489 (CA), it was held: “That award of general damages for wrongful dismissal (or wrongful termination) is strange. This is because what is computed for a successful party in such circumstances cannot be general damages, but proven special damages, which actually are the salaries and other entitlements of the plaintiff during the period of the purported termination or dismissal, or what would have accrued to him, had the dismissal or termination complied with the due process envisaged in the condition of service, that is, the entitlement payable to the plaintiff in lieu of notice (where reinstatement cannot be ordered). See Adeniran Vs NEPA (2002) 14 NWLR (pt.786) 30; Kwara State Polytechnic Vs Saliu (supra); SPDC Ltd Vs Olarewaju (2008) 12 SC (pt. 111) 27.”
See also Agbarakwe Vs University Press Plc (2015) LPELR–25613 (CA), where we held:
“Therefore to terminate without notice by an employer would amount to summary dismissal and ordinarily it is a breach of contract except where there are sufficient grounds to justify it, if an action is raised from it even although an employer is not otherwise required to give any reason for a dismissal but once any reason is given at all as here, it has to be showed at a trial as the instant one that the employer has good grounds for the dismissal and if it is so showed, then the employer has provided a complete defence to the action of wrongful dismissal. The employee in such circumstances is not entitled to damages as his dismissal is not otherwise wrongful. Ordinarily, if I may recap, a breach of contract cannot by that fact alone i.e. ipso facto terminate a contract unless the breach has rendered the continuance of the contract totally impossible to be performed. All the same, a party to such a contract has the option under the general law of contract of either regarding the contract as at an end, and then sue for damages for breach of contract or press on with contract, and sue for the losses occasioned to him by the breach. I must emphasize that, this is in contradistinction to the position of a servant in a contract of employment of master and servant relationship as in this case. The employee under a contract of service has not got the option of continuing with the contract of employment where a breach of a fundamental term of the contract of employment as denial of fair hearing has been alleged, resulting in the wrongful dismissal of an employee as here but to sue claiming damages for wrongful dismissal if he wishes, he must however, accept the fact that the contract has ended and that his only remedy is in damages for wrongful termination/dismissal. See: Denmark Production Ltd. v. Boscobel Production Ltd. (1969) 1 QB 699.” Per CHUKWUMA-ENEH, JSC. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/464/2012, delivered on 7th April, 2014 by Hon. Justice Ibrahim Musa Mohammed Karaye, wherein the Learned trial Judge dismissed the claim of the Plaintiff (now Appellant).
At the lower Court, Appellant (as Plaintiff had sought the following reliefs against the Defendants (now Respondents).
(1) A declaration that the Plaintiff is still the substantive Vice Chancellor of the 3rd Defendant.
(2) A declaration that the purported sack and replacement of the Plaintiff is null and void, being inconsistent with the terms and conditions of the Plaintiff’s employment and the relevant statute.
(3) A declaration that the report of the visitation panel to the 3rd Defendant, in as much as it purportedly indicted the Plaintiff of charges and allegations for which he was never given an opportunity to defend himself, is null and void as it offends the principle of natural justice and fair hearing.
(4) A declaration that the appointment and imposition of the 4th Defendant as Vice-Chancellor is null and void ab-initio, being inconsistent with the Kano State University of Science and Technology Law 2000, Law No. 9 of 2003 of Kano State.
(5) An Order of Court directing the specific performance of the residue of the term of appointment of the Plaintiff, directing the 1st, 2nd, 3rd and 5th Defendants to reinstate the Plaintiff and allow him back to his office as Vice-Chancellor of the 3rd Defendant, in the alternative an order of Court directing 1st, 2nd, 3rd and 4th Defendants to immediately pay the Plaintiff his entitlements for the 1 year remaining as Vice-Chancellor of the 3rd Defendant.
(6) An Order of Court restraining the 4th Defendant from parading himself or holding himself out to be the Vice-Chancellor of the 3rd Defendant.
(7) General damages for breach of the contract of employment of the Plaintiff, assessed at N100,000,000.
(8) Cost of this action.” (pages 26 – 27 of the Records of Appeal).
The Respondents had filed their processes (a joint defence) to contest the suit. At the trial, the Plaintiff gave evidence as PW1 and tendered documents – Exhibits A, B, C, D1, D2 and D3. The Defence also called one witness (DW1), the Registrar of 3rd Defendant, who tendered Exhibits E and F. At the end of the trial, and after considering the evidence and addresses of Counsel, the trial Court dismissed the suit, saying that the Plaintiff (Appellant) failed to establish his case to warrant the grant of the reliefs sought. The Court held:
“Agreed the Defendants did not respond in details about the issue of visitation panel as raised by the Plaintiff. They pleaded and gave evidence however that the removal was legal. And based on Exhibit A, that it was done upon the recommendation of the visitation panel. It is for the Plaintiff therefore to establish further, that the recommendation of the visitation panel and the removal based on that was not in accordance with the law of the Kano State University of Science and Technology, Wudil. It is only after that has been done and the Defendants did not challenge the evidence, that the evidence can be accepted as established. Where, however, the Plaintiff did not establish what he asserts by the evidence produced, as in the instant case, that fact that the Defendant did not challenge the evidence, is not sufficient to establish the assertion. The Plaintiff is to succeed on the strength of his case and not on the weakness of the defence.
At this stage, it is necessary to state that under the Kano State University of Science and Technology Law 2000, part 3, headed visitation Section 16–19 thereof, the visitor has the power to set upon (sic) visitation panel. The visitation panel is to submit a report stating its findings and recommendations. And the visitor has the power to issue directives on the complementation (sic) of the report of the visitor (sic) panel. Such directive/instruction given by the visitor in consequence of the visitation report (sic) be given effect to by the bodies and persons comprising of the University. By implication, therefore, any recommendation by a visitation panel for the removal of a Vice-Chancellor which the visitor approves, stands.
In sum, I hereby hold, that the Plaintiff has failed to establish his case against the Defendants, on the preponderance of evidence, to warrant the grant of his reliefs sought…” See Pages 274–275 of the Records of Appeal).
Dissatisfied with the above, Appellant filed Notice and Grounds of Appeal on 8/7/2014 – Pages 277 to 281 of the Records of Appeal. He filed Amended Notice of Appeal on 19/1/2016 and formulated 7 Grounds of Appeal. Appellant filed his brief of arguments on 27/6/2016 and distilled 4 (four) Issues for the determination of the appeal, as follows:
(1) Whether the learned trial Judge did not misdirect himself when, inspite of the clear provisions of the Kano State University of Science and Technology Law 2000 Law No. 9 of 2003, he held that the said law does not clothe the appointment of the Appellant with statutory flavor. (Grounds 1, 2 and 3)
(2) Whether the learned trial Judge is not wrong and, indeed, misconceived the issues when he held that Section 16–19 of the Kano State University of Science and Technology Law 2000… empower the visitor to remove a Vice-Chancellor upon the recommendation of a visitation panel, when no such case was canvassed before him and whereas the case of the Appellant is that there was non-compliance with the selfsame provisions. (Ground 5)
(3) Whether the lower Court having held that the Kano State University of Science and Technology Law 2000 does not provide for the discipline of the Vice-Chancellor could still anchor the removal of the Vice-Chancellor on Sections 16–19 of the same law, and having done so, whether this has not occasioned a miscarriage of justice. (Ground 4)
(4) Whether the lower Court was not wrong to have held that the Plaintiff failed to prove his case and did not shift the onus of proof to the defendants, given the quality of the pleaded facts and cogent evidence placed before the Court and which was either admitted or totally unanswered by the Defendants. (Ground 6)
The Respondents filed their Brief on 11/10/2021, which was deemed duly filed on 1/12/2021. They distilled four (4) Issues, too, for the determination of the appeal, namely:
(1) Whether the learned trial Judge was right to have held that the Kano State University of Science and Technology Law, 2000, Law No. 9 of 2003, does not clothe the appointment of the Appellant with Statutory flavour.
(2) Whether the learned trial Judge was right when he held that Sections 16–19 of the Kano State University of Science and Technology Law, 2000 Law, No. 9 of 2003… empower the visitor to remove a Vice-Chancellor upon the recommendation of visitation panel, even if such a case was not canvassed before him.
(3) Whether the learned trial Judge rightly held that the Kano State University of Science and Technology Law 2000, Law No. 9 of 2003… despite not providing for the discipline of the Vice-Chancellor, could still anchor his removal as valid under Sections 16–19 of the same law.
(4) Whether the Learned trial Judge rightly held that the Plaintiff failed to prove his case on the preponderance of evidence.
Appellant had filed a Reply Brief on 21/2/2022 to respond to the Respondents’ Brief.
Arguing the Appeal on 16/3/2022, Appellant’s Counsel, Bayo Funso Adaramola Esq, (who settled the brief), on Issues 1, 2 and 3, which he argued together, relied on Section 5(3) of the Kano State University of Science and Technology Law, to say that the appointment of Appellant as Vice-Chancellor, was for a term of 4 years, subject to renewal for a 2nd term, upon good performance. Counsel also referred us to Schedule III of the Law, Section 1(i) (b) which confers on the Vice-Chancellor, membership of the University Council, and he said that Section 1(4) of the Schedule III, prescribes how a member of the University Council can be removed by the Visitor of the University, exception of the Chancellor [1(a)], that Section 1(b) or (g) said clearly that the Appellant, being the Vice-Chancellor (along with three other members of Council), cannot be removed under the provisions of Section 1(4) of the Schedule III.
Counsel cited Section 23(1) and (2) on how a member of Council of the University could be removed from office – on grounds of misconduct or inability to perform the functions of his office; that the Council shall make recommendation to that effect to the Visitor, through the Commissioner for Education and if, after due enquiry, the Visitor approves the recommendation, he may direct the removal of the person in question.
Thus, Counsel said, that a community reading of Section 1(4) of the Schedule III and Section 23(1) of Part 5 of the Law reveals that the discipline of Council members is shared as between the two provisions. Counsel said that while certain members may be disciplined under Section 1(4) of Schedule III (which excludes the Vice-Chancellor and others), Section 23(1) of Part 5 is simply designed to take care of the other Council members, not accommodated under Section 1(4) of the Schedule III.
Counsel said that the above provisions are unambiguous and the lower Court ought to have given effect to them; that Courts have a duty to interpret words of a statute as used, and where in their ordinary meaning, the provisions of a document are clear and unambiguous, effect should be given to such provisions. He relied on Saliman Vs Kwara Polytechnic (2006) 5 NWLR (Pt.974) 477; Amasike Vs Registrar General CAC (2006) 3 NWLR (Pt.968) 462; Omoworare Vs Omisore (2011) ALL FWLR (Pt.561) 1493.
Counsel said that the trial Court misread or misunderstood its role in interpreting the provisions of the Kano State University of Science and Technology Law, 2000, when the Court declared that the Section 23(1) did not apply to Appellant, thus the conclusion of the trial Court was, fatally, flawed, when he held that there was nowhere the University law expressly provided for the discipline of the Vice-Chancellor (VC) – his removal or dismissal or retirement. But surprisingly, Counsel said, having so held that the University Law did not provide for the discipline of Vice-Chancellor, the Court turned round to hold:
“… under the Kano State University of Science and Technology Law 2000, Part 3 headed visitation Sections 16 –19 thereof the Visitor has the power to set upon (sic) visitation panel… By implication therefore any recommendation by the visitation panel for the removal of a Vice-Chancellor which the Visitor approves stands.” Page 275 of the Records
Counsel said that was a clear case of somersault as it also held that Appellant’s appointment was not clothed with statutory flavour. He urged us to resolve the Issue for Appellant.
Counsel claim to have argued Issues 4 and 6 together, but he did not have any Issue 6! He said that the trial Court, wrongly, conceived the import of onus of proof in civil cases, when he held that Appellant did not shift the onus of proof to the Respondents, inspite of the state of the pleadings and the evidence before it. Counsel said that, while it is true that the burden of proof in civil cases rests, squarely, on the shoulders of the Plaintiff, it is also true position of the law, that the burden of proof is not static and can shift or tilt, between the parties. He relied on Okadigbo Vs Ojechi (2011) ALL FWLR (Pt.601) 1556; Akpan Vs Isa (2011) ALL FWLR (Pt.576) 1201.
Counsel said that by the state of the pleadings and the quality of evidence, produced by the Appellant at the lower Court, he and creditably discharged the burden of proof on him, which burden was not shifted back by the Defendants. He referred us to evidence of the Appellant and his pleadings, on pages 28–34, 38–42 and 207 to 250 of the Records of Appeal.
Counsel said that the core of the case of Appellant, in paragraphs 7, 8 and 13 of his pleadings, was admitted by Respondents’ pleadings, in their paragraphs 2, 3, 4 and 5 of Statement of defence, and so no onus remained anymore on the Appellant on those facts; that Appellant had pleaded that his appointment was for a term of 4 years, as per the University law; that the visitation panel never questioned him on any issue or allegation of misconduct or incompetence; that his contract of employment with 3rd Defendant has statutory flavour; that though the Respondents denied the contract, being with statutory flavour, no iota of evidence was led to prove the denial. He said that having led evidence to show that his appointment enjoyed statutory flavour, the onus shifted to the Respondents to disprove same. Thus, the lower Court came to a wrong conclusion on the preponderance of evidence.
INCOMPETENT ARGUMENT OF NON-EXISTING ISSUES:
Appellant did not distill any Issue 5 and 6 (in the list of Issues for determination – which were 1 to 4 as per pages 5 and 6 of the Brief). But, in the argument (pages 15 to 21 of the Brief), Counsel claimed to have argued Issue 5 (allegedly distilled from ground 7 of the Notice of Appeal!) He had earlier claimed to argue the Issue 4, together with Issue 6 (non-existing)!
It should be noted that Counsel did not state what the Issues 5 and 6 were, in the Brief. I shall therefore ignore whatever arguments Appellant made in respect of the Issue 4, (and the alleged Issues 5 and 6) as there are no such Issues, disclosed in the Appellant’s Brief.
And for joining the Issue 4 with imaginary Issue 6, to argue the appeal, the said Issue 4 has been contaminated, and the arguments corrupted by the strange imaginary Issue 6. See Augustine & Anor Vs Apugo & Ors (2019) LPELR–48822 CA.
The law is that appeals are argued in the Court of Appeal on Issues, properly distilled from the grounds of Appeal. And where a party combines a given ground of Appeal or Issue with a defective one to do his argument, he falls into grave error of cancelation by attrition, as the defective ground or Issue has the effect of corrupting and deleting the good ground of appeal or Issue, making the entire argument, thereof, incompetent. See the case of Northwest Petroleum & Gas Company Ltd Vs Iloh & Ors (2021) LPELR – 55509 (CA), where this Court held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR-48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR-43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR-42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR-376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…”
The said argument on the Issue 4 with the purported Issue 6 is hereby struck out, for incompetence. The arguments of the alleged Issue 5 is also struck out.
The Respondents’ Counsel, H.H. Suleimann Esq (ADCL) Kano State, had also argued the Issues 1 to 3, together. He said that the University law does not clothe the appointment of Appellant, as Vice-Chancellor, with Statutory flavour, and relied on the Supreme Court case of C.B.N. Vs Igwillo (2007) 4-5 SC 154 at 172, where it was held that:
“There are now three categories of contracts of employment, namely:
(a) Those regarded purely as master and servant relationship;
(b) Those where a servant is said to be holding office at the pleasure of the employer; and
(c) Those where the employment is regulated or governed by statute (often referred to as having statutory flavour).”
Counsel also referred to the case of Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599; to say that, an employee is said to have statutory flavour, when the appointment is protected by statutory or laid down regulations made to govern the procedure for employment and discipline of the employee; he said that any other employment outside that category is governed by the terms under which the parties agreed to work, together. He also relied on Imoloame Vs WAEC (1992) 9 NWLR (Pt.265) 303; Shitta-bey Vs University of Lagos (1981) 1 SC 40.
Counsel added that a cursory perusal of the Kano State University of Science and Technology Law, 2000, will reveal that it does not provide for the discipline of the Vice-Chancellor. Counsel referred us to Paragraph 1(3) of Schedule 1 and Paragraph 2(3) of Schedule 1 in respect of Chancellor and Pro-Chancellor of the University and also relied on the case of University of Benin Teaching Hospital Board of Mgt. Vs Oronsaye (2018) LPELR–45655 CA.
He argued that all other senior members of staff of the University, other than the Vice-Chancellor, are covered under Section 24(1) of the Kano State University Law; that Section 23 of the University Law does not also provide for the discipline of Vice-Chancellor, as all the members of Council of the University can be removed under this Section, with the exclusion of the Vice-Chancellor.
Counsel rather drew inspiration from Sections 16–19 of the University Law, on the power of the Governor, as the Visitor of the University, to conduct or direct a visitation to be conducted in respect of any affair of the University he may specify; he said that Section 19(3) of the University Law empowers the Visitor to issue directives on the implementation of the report of the visitation panel. Counsel said that, based on the above reasoning, the decision of the trial Court was apt, pursuant to the provisions of the University Law; that by implication, any recommendation by a visitation panel, for the removal of a Vice-Chancellor, which the Visitor approved, stands. In this case, Counsel said, Appellant had admitted appearing before the visitation panel, several times and even tendered the terms of reference to the visitation panel as Exhibit B (pages 208–210 of the Records of Appeal).
He said that the removal of Appellant was as per the recommendation of the visitation panel, following the terms of reference given to the panel.
RESOLUTION OF ISSUES
I think the main issues thrown up in this appeal are:
(1) Whether the trial Court was right to hold that Appellant was removed from office and had correctly appraised the case of the Appellant, when it ruled that the visitation panel recommended the removal of the Appellant as Vice-Chancellor of the University and that any recommendation by the visitation panel for removal of a Vice-Chancellor, which Visitor approves, stands.
(2) Whether the office of Vice-Chancellor of the Kano State University of Science and Technology, enjoys statutory flavour, when it comes to removing the Vice-Chancellor from office.
A brief facts of this case at the lower Court, shows that Appellant was appointed by the Governor of Kano State on 23rd October, 2009, as per Exhibit A, for a four years term as substantive Vice-Chancellor of the University. The appointment was subject to renewal, upon good performance, pursuant to Section 16 of the Kano State University of Science and Technology Law, 2000, Law No. 9 of Kano State 2003.
In October, 2012, the Governor (1st Respondent) announced the removal of Appellant from office, via media – radio, television and newspapers, and announced the 4th Respondent as replacement for Appellant. By then, Appellant still had one more year to complete his first term of 4 years, contract. The trial Court held the 1st Respondent was empowered to so act, following the recommendation of a visitation panel, which allegedly recommended Appellant’s removal. Appellant argued that the removal cannot stand as his (Appellant’s) appointment enjoyed statutory flavour, which was rejected by the trial Judge.
Appellant admitted appearing before the visitation panel, but said that no allegation of misconduct or incompetence was made against him at the panel meeting and no single question in line with any such allegation was put to him by the visitation panel to elicit his response. Thus, he asserted that his removal was null and void, even if there was indictment.
I have not seen in the Records, where the Respondents contested the evidence of the Appellant, that when he appeared before the visitation panel, no allegation of misconduct or incompetence was put to him, and no single question was raised on the same to elicit his response, to justify his purported removal for misconduct and incompetence on the alleged recommendation of the visitation panel. The trial Court had even made findings to that effect, when it said:
“Learned Counsel to the Plaintiff has submitted that the Defendants utterly failed to respond to the paragraphs of the Statement of claim and the testimony of the Plaintiff in relation to the report of the visitation panel. And although Exhibit E, the letter of disengagement, dated 24th October, 2012, clearly made a reference to the recommendation of the visitation panel, and the Plaintiff directly attached the said panel recommendation in his pleadings and testimony, the Defendants apart from mere denial, failed to react to the allegation. Consequently, the evidence of the Plaintiff on this point remains unchallenged. He further submitted that the failure of the Defendants to produce the recommendation of the visitation panel is fatal and should be presented against them in accordance with the provisions of Section 149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, for evidence which could be produced, but was not produced would, if it had been produced, have been unfavourable to the person who withholds it.
Now, in the instant case, the issue is that the Plaintiff was removed upon the recommendation of the visitation panel appointed by the visitor, which the Plaintiff is challenging. It is for him to establish and prove that it is illegal. He is also to establish that the report did not indicate (sic) him or made allegation of misconduct of (sic) incompetence against him to warrant his removal from office. He is also to establish that, even if there was allegations of misconduct or incompetence, no single question was put to him to enable him respond. He is, therefore, to produce the report and the minutes of the sitting of the visitation panel, to establish that. And if the report and the minutes are not in his position (sic) to put the Defendants on notice to produce them. It is only when they fail to produce the documents of the notice has been given to them, that Section 149(d) of the Evidence Act can operate against them, to show evidence which could be produced but was not produced… This is because the burden of first proving that the report did not indicate (sic) (indict) the Plaintiff and even if it does, he was not given the oppointing (sic) (opportunity) to respond, is on the Plaintiff.” (See pages 271 to 274 of the Records of Appeal)
With due respect to the learned trial Judge, I think, that was a very perverse and flawed reasoning and conclusion, which rather turned the law on its head!
It was, in my opinion, rather the duty and responsibility of the 1st Respondent, who claimed and relied on the recommendation of the visitation panel, alleging misconduct and incompetence against Appellant, as the basis for his premature removal from office, to produce the said Visitation Panel report at the trial, and to debunk the assertion of the Appellant, that he was not confronted with any allegation of misconduct or incompetence, when he appeared before the visitation panel. The Respondents therefore had the evidential burden to establish the recommendation of the visitation panel, for removal of the Appellant from office on the grounds of misconduct and incompetence, and that the allegations were duly established against Appellant, after due process of hearing him out, on the allegations.
Failure to produce the said report of the visitation panel, at the trial by the Respondents, who made the report and founded their action on the same, to justify the removal of Appellant from office, was fatal against the Respondents, in my opinion, and in fact, called for the invocation of the Section 149(d) (now 167(d) of the Evidence Act, 2011) against the Respondents.
The trial Court was therefore in grave error, to presume the non-production of the said Report of the visitation panel against Appellant, who was even complaining against the use of the said Report by Respondents, wrongly, to remove him from office. It was the Respondents who founded their case on the recommendation in that Report, and ought to produce it. (See Exhibit E). See Oguonzee Vs The State (1998) LPELR–2357 (SC), where it was held, based on the old Section 149(d) of the Evidence Act (now Section 167(d) of the Evidence Act, 2011), thus:
“Section 149(d) of the Evidence Act provides as follows: “149. The Court may presume the existence of any fact which it thinks likely to have happened. Regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume: (a) … (b) … (c) … (d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (e) … The first point that needs be emphasized is that the presumption under Section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435 . The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness.”
See also Abdulmumin Vs The State (2021) LPELR-; Ngorka Vs A.G. Imo State (2014) LPELR–22532 (CA); and Ewugba Vs State (2017) LPELR–43833 (SC), and the case of Smart Vs The State (2016) LPELR–40827 (SC), where the Supreme Court, Per Rhodes-Vivour JSC, said:
“Section 167 (d) of the Evidence Act, 2011 states that: “167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that- (d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Learned counsel for the Appellant relied on Section 167 (d) of the Evidence Act to support his argument that not calling investigating Police Officer who took the Appellants confessional statement was fatal to the Respondents case. Section 167 (d) of the Evidence Act is to the effect that when a party withholds useful evidence the presumption in law is that it would go against the party who withheld it if produced. The presumption created is against the withholding of documentary and oral evidence. The presumption applies generally to failure to lead evidence on pleaded facts, and not failure to call a particular witness. See Babuga v. State (1996) 7 NWLR (Pt.460) p.279 Onwujuba & Ors v. Obienu & Ors (1991) 4 NWLR (Pt.183) p.16 A.G. Adamawa State v Ware (2006) 4 NWLR (pt.970) p.399 Nigerian Airforce v. Obiosa (2003) 4 NWLR (Pt.810) p.233.”
In this case, Appellant had pleaded in Paragraphs 10–17 of his pleading, as follows:
(10) The Plaintiff avers that sometime in June, 2011 the 1st Defendant set up a visitation panel to the 3rd Defendant dissolved the Council of the 3rd Defendant.
(11) The 1st Defendant in his capacity as Visitor to the 3rd Defendant set up visitation panel to 3rd Defendant in early January, 2012, with stated terms of reference as stated in the communication of the panel to the 3rd Defendant dated 1st March, 2012, this letter or a copy thereof is pleaded.
(12) The Plaintiff further avers that in compliance with the request of the visitation panel, he submitted a written report dated March, 2012 to the visitation panel and another oral submission before the panel members at the Manbayya house, Kano, where it held an interview with all the principal officers of the 3rd Defendant.
(13) That during his interview and interface with the visitation panel, no allegation of misconduct or incompetence was made against him and no single question in line with any such allegation was put to him to evince a response.
(14) The Plaintiff states further that after both his written and oral presentations before the visitation panel, he and the 3rd Defendant did not hear from either the panel or the visitor until late October, 2012 it was reported in the media, both the print and television that the 1st Defendant had received the report of the visitation panel and accordingly appointed the 4th Defendant as the Vice-Chancellor of the 3rd Defendant. The newspaper cuttings in the Daily Trust of Monday Wednesday (sic) 31st October, 2012, Daily Trust of Monday November 5th, 2012 and Leadership of Monday November 5th, 2012 are pleaded and shall be relied upon at the trial.
(15) The Plaintiff further avers that the 1st Defendant, as visitor, did not and has not given any directive to the 3rd Defendant, as a consequence of the visitation panel report, when he announced the appointment of the 4th Defendant.
(16) That the 1st and 2nd Defendants had not relieved him of his appointment when 1st Defendant purportedly appointed the 4th Defendant to replace him.
(17) That up till now the Plaintiff has not been formally and officially removed from office either by the 1st and (sic) 2nd Defendants in accordance with the laws establishing the 3rd Defendant.” (See pages 29–30 of the Records)
In Paragraph 28 of the pleading the Appellant averred:
“The Plaintiff shall contend at the hearing that the visitation report in so far as it may contain or does not contain any indictment of his person, warranting his removal from office, is null and void since the indictments or allegations were never presented to him by the visitation panel to enable him respond thereto.”
Appellant had led clear evidence on the above pleadings. In their denial of the said pleadings, and evidence, the Respondents averred as follows, in their paragraphs 4 to 8 of the Statement of Defence:
(4) The Defendants admit paragraphs 10, 11, 12 and 13 of the Plaintiff’s Statement of claim
(5) The Defendants admit Paragraph 14 of the Plaintiff’s Statement of claim and further aver that the Plaintiff was served with a letter of disengagement as the Vice-Chancellor of the 3rd Defendant.
(6) The Defendants deny paragraph 15 of the Plaintiff’s Statement of claim, and further state that, the 1st Defendant as the visitor has the sole responsibility of appointing the Vice-Chancellor of the 3rd Defendant.
(7) The Defendants deny paragraph 16 of the Plaintiff’s Statement of Claim and further aver that the Plaintiff was disengaged as the Vice-Chancellor of the 3rd Defendant before the new Acting Vice-Chancellor was appointed.
(8) The Defendants deny paragraphs 17 of the Plaintiff’s Statement of claim and further aver that the Plaintiff was formally removed from office as the Vice-Chancellor of the 3rd Defendant. The letter of disengagement served on the Plaintiff is hereby pleaded.” (Page 161 of the Records)
Of course, having admitted the Paragraphs 10 to 14 of the averments of the Plaintiff, particularly, that:
“during the interview and interface with the visitation panel, no allegation of misconduct or incompetence was made against him and no single question in line with any such allegation was put to him to evince a response; and that after both his written and oral presentation before the visitation panel, he and the 3rd Defendant did not hear from either the panel or the visitor until the late October, 2012 it was reported in the media… that 1st Defendant had received the report of the visitation panel and accordingly appointed the 4th defendant as the Vice-Chancellor of the 3rd Defendant…”
there was no basis for the removal of the Appellant from office, before the expiration of his 4 year term, and so the allegation of the purported visitation panel recommendation indicting Appellant for misconduct or incompetence to warrant his removal from office by the 1st Respondent, cannot be sustained. There was no evidence to support any such allegation and there was no pleading by Respondents on any such evidence. Apart from Exhibit E (Disengagement Letter) which alleged that the action of the 1st Respondent was founded on the said recommendation, they did not plead any such fact and the DW1 did not lead any evidence on it!
I have not seen any pleading by the Respondents, tracing the premature removal of Appellant from office to the alleged report of the visitation panel, recommending the removal of Appellant for misconduct or incompetence. All that Respondents pleaded and led evidence on, was that the 1st Respondent, as visitor to the 3rd Respondent, has the sole responsibility to appoint Vice Chancellor for the 3rd Respondent; that the 1st Respondent removed Appellant in good faith and appointed the 4th Respondent as acting Vice-Chancellor, according to the University law. See page 258 of the Records of Appeal, where the trial Judge summarized the evidence of the DW1, thus:
“DW1, the Registrar of the 3rd Defendant… gave evidence that the 1st Defendant acting in his capacity as the Visitor of the 3rd Defendant retained (sic) the Plaintiff of his position as the Vice-Chancellor of the 3rd Defendant and appointed 4th Defendant as a new acting Vice-Chancellor of the 3rd Defendant. And the 1st Defendant as the Visitor has the sole responsibility of appointing the Vice-Chancellor of the 3rd Defendant… the Plaintiff was disengaged as the Vice-Chancellor of the 3rd Defendant, before the 4th Defendant was appointment (sic) as the new Vice-Chancellor… the removal of Plaintiff from office was made in good faith and through legal means as (sic) name of the Defendants or any Government Agent employed any illegal or violation (sic) means in order to force the 4th Defendant into the Plaintiff’s office of (sic) in order to have access to the University campus.”
It is therefore very curious and surprising that the trial Court held:
“Now, it is in evidence that the Plaintiff was removed from office by the Visitor on the recommendation of the visitation panel as set up by the visitor… the Plaintiff contends that the removal was wrong as it was not in accordance with the laws governing the 3rd Defendant…” Page 270 of the Records
That finding was perverse and only came from the Judge, against the rules. See Obi Vs A.G. Imo State (2014) LPELR–24280 CA, where it was held:
“A trial Judge must not be seen to descend into the arena of conflict in a trial to generate evidence or facts not canvassed or adduced by witness(es) or apparent on the Record before him to decide a case.”
The trial Court further said:
“Now, in the instant case, the issue is that the Plaintiff was removed upon the recommendation of the visitation panel appointed by the visitor which the Plaintiff is challenging. It is for him to establish and prove that it is illegal. He is also to establish that the report did not indicate (indict) him or made allegation of misconduct of (sic) incompetence against him to warrant his removal from office. He is also to establish that even if there was allegations of misconduct or incompetence, no single question was put to him to enable him respond. He is therefore to produce the report and the minutes of the sitting of the visitation panel to establish that…” (Page 274 of the Records)
I had earlier stated that, that amounted to misplacement of the burden of proof.
But how did the Court come by all that findings about the recommendation of visitation panel as the basis for the removal of Appellant by the 1st Respondent, when there was no such evidence by the Respondents and where the report was not produced?
The trial Court had therefore relapsed into the grave error by holding that: “… the Visitor has the power to issue directives on the implementation of the report of the visitor (sic) panel. Such direction/instruction given by the visitor in consequence of the visitation report be given effect to by the bodies and persons comprising of the University. By implication therefore any recommendation by a visitation panel for the removal of a Vice-Chancellor which the visitor approves, stands.” Page 275 of the Records.
Of course, that cannot be correct, and it is not the law. I do not think the 1st Respondent, as Visitor of 3rd Respondent, can act arbitrarily, to truncate the contract of service of the Appellant, on “any recommendation of a visitation panel for removal of Appellant, which he approves. Where the recommendation is founded on falsehood, deceit and oppression, and where Appellant was accused, wrongly, of misconduct or incompetence, and was not given opportunity to defend himself, before being punished, such act of the Visitor, on such recommendation of the visitation panel cannot stand, being an affront to law and flagrant breach of contract, as well as violation of the principles of fair hearing of Appellant.
Appellant had also argued that the Kano State University of Science and Technology Law, 2000, No. 9 Laws of Kano State 2003 does not give the 1st Respondent (Visitor) such powers to remove Appellant from office, before expiration of term as stated in Section 5(3) – to the effect that “the Vice-Chancellor shall hold office for a single term of four years and subject to his performance may be re-elected for a second term.”
Counsel had also referred to Sections 23 to 24 of the University Law on the discipline of principal officers of the University, as well as Section 1(4) of the Schedule III to say that even the above do not provide for the discipline of the Vice-Chancellor. Section 23(1) says:
“If it appears to the Council that a member of the Council should be removed from office on ground of misconduct or inability to perform the functions of his office, the Council shall make a recommendation to that effect to the visitor through the Commissioner of Education, and if after due enquiry, the visitor approves the recommendation, he may direct the removal of the person in question from office.”
The above provision was not applicable in this case, as there was no report of any credible visitation panel or recommendation of Council of the University, recommending the removal of the Appellant from office, and same carried out after due process. Both the Counsel for Respondents and the trial Court had also agreed that there is no provisions in the Kano State University of Science and Technology Law, 2000 on the discipline of the Vice-Chancellor. Yet, strangely, the learned trial Judge claimed to have relied on Sections 16–19 of the University Law, to allow the removal of the Appellant!
What then was the basis of the lower Court’s decision to approve the removal of Appellant by the 1st Respondent, and for his replacement with the 4th Respondent? Wrong perception of the law and error of judgment. He had somersaulted, blowing hot and cold! A Court should not be approbating and reprobating. See FRN Vs Iweka (2011) LPELR–9350 (SC).
I think the trial Court (with due respect) was prevaricating on the issue, and speculated that a visitation panel had recommended the removal of the Appellant on allegation of misconduct or incompetence to the visitor (1st Respondent) and that the 1st Respondent acted on such recommendation, which must stand! That was wrong, as earlier stated in this judgment.
The controversy, whether the office of the Appellant, as Vice-Chancellor, was one governed by statutory flavour, and the strong argument of the Appellant’s Counsel, and findings of the Learned trial Court, thereon, appeared to me, completely, irrelevant and misplaced in this case.
Whereas, the employment of the Appellant as a lecturer or professor in the University (if he was a serving teacher in the University, before his appointment as Vice-Chancellor) remained, as one governed by statutory flavor, and subject to applicable rules and principles for termination of his appointment or removal from service (and which can only be heard and determined by the National Industrial Court, pursuant to the Section 254(c) of the 1999 Constitution, as amended), the office of Vice-Chancellor of University, appears to be a political appointment by the Council and Visitor of the University, governed by the terms of the contract of appointment and at the pleasure of the Visitor of the University and/or the Council of the University.
I think such appointment does not require the application of the principles of statutory flavor to bring the contract to an end, as the loss of office of Vice-Chancellor does not terminate the service of the individual as staff of the University, but only marks the end of his tenure as the Vice-Chancellor.
He can only claim reparation, if his removal is wrongful, in accordance with the terms of the contract of service.
I therefore hold that the office of Vice-Chancellor of University cannot and does not enjoy the invocation of the principle of statutory flavor, in the event of unlawful removal from office, being, essentially, a political appointment, at the pleasure of the Council of the University and/or the Visitor of the University.
That notwithstanding, I hold that the trial Court was wrong to accept the removal of the Appellant from office before the expiration of his term of service of 4 years, in the circumstances of this case, there not being any basis for the truncation of his appointment, and the announcement of the 4th Respondent to replace him.
I therefore find merit in this appeal, and set aside the decision of the lower Court. However, I cannot order that the Appellant is still the substantive Vice-Chancellor of the 3rd Respondent and/or for specific performance in the circumstance that Appellant’s term of appointment was to end in 2013. But I think Appellant is entitled to damages for unlawful removal from office, before the expiration of his term of service.
By law, such damages consist of what was the entitlement of the Appellant, had he been allowed to complete his term of service to the 3rd Respondent, and that would be calculated from his salaries and basic allowances (entitlements) due to him, from October, 2012, when he was forcefully removed from office, to 23rd October, 2013, when he was to complete his 4 year term of service. See the case of Eze Vs Spring Bank Plc (2011) LPELR – 2802 (SC), where it was held:
“It should also be appreciated that in employment matters and claims for wrongful dismissal, the measurement of damages is, prima facie, the amount that the plaintiff would have earned, had the employment continued according to contract. See NMB Vs Adewunmi (1972)11 SC N1; Beckham Vs Darke (1849) 2 HCC 579. Where however, the defendant, on giving the prescribed notice, has a right to terminate the contract, before the end of the term (in respect of term contract), the damages awardable (apart from the entitlements earlier stated) should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal. See Denmark Production Ltd Vs Boscobel Productions Ltd (1968)1 All ER 513 at 524. See also SELCON Tannery Ltd Vs Abubakar & Ors (2013) LPELR-21412. In the case of New Nigeria News-papers Ltd Vs Atoyebi (2013) LPELR-21489 (CA), it was held: “That award of general damages for wrongful dismissal (or wrongful termination) is strange. This is because what is computed for a successful party in such circumstances cannot be general damages, but proven special damages, which actually are the salaries and other entitlements of the plaintiff during the period of the purported termination or dismissal, or what would have accrued to him, had the dismissal or termination complied with the due process envisaged in the condition of service, that is, the entitlement payable to the plaintiff in lieu of notice (where reinstatement cannot be ordered). See Adeniran Vs NEPA (2002) 14 NWLR (pt.786) 30; Kwara State Polytechnic Vs Saliu (supra); SPDC Ltd Vs Olarewaju (2008) 12 SC (pt. 111) 27.”
See also Agbarakwe Vs University Press Plc (2015) LPELR–25613 (CA), where we held:
“Therefore to terminate without notice by an employer would amount to summary dismissal and ordinarily it is a breach of contract except where there are sufficient grounds to justify it, if an action is raised from it even although an employer is not otherwise required to give any reason for a dismissal but once any reason is given at all as here, it has to be showed at a trial as the instant one that the employer has good grounds for the dismissal and if it is so showed, then the employer has provided a complete defence to the action of wrongful dismissal. The employee in such circumstances is not entitled to damages as his dismissal is not otherwise wrongful. Ordinarily, if I may recap, a breach of contract cannot by that fact alone i.e. ipso facto terminate a contract unless the breach has rendered the continuance of the contract totally impossible to be performed. All the same, a party to such a contract has the option under the general law of contract of either regarding the contract as at an end, and then sue for damages for breach of contract or press on with contract, and sue for the losses occasioned to him by the breach. I must emphasize that, this is in contradistinction to the position of a servant in a contract of employment of master and servant relationship as in this case. The employee under a contract of service has not got the option of continuing with the contract of employment where a breach of a fundamental term of the contract of employment as denial of fair hearing has been alleged, resulting in the wrongful dismissal of an employee as here but to sue claiming damages for wrongful dismissal if he wishes, he must however, accept the fact that the contract has ended and that his only remedy is in damages for wrongful termination/dismissal. See: Denmark Production Ltd. v. Boscobel Production Ltd. (1969) 1 QB 699.” Per CHUKWUMA-ENEH, JSC
I therefore resolve the issue (1) for Appellant and Issue 2 against him. On the whole, I allow the appeal.
I set aside the decision of the trial Court and I enter judgment for the Appellant, as he was entitled at the lower Court, in terms of reliefs 1, 2, 3, 4 and 5, as stated:
(1) A declaration that the Plaintiff was still the substantive Vice-Chancellor of the 3rd Defendant, at the time of the judgment on 7/4/2014.
(2) A declaration that the purported sack and replacement of the Plaintiff was null and void, being inconsistent with the terms and conditions of the Plaintiff’s employment and the relevant statute.
(3) A declaration that the report of the visitation panel to the 3rd Defendant, in as much as it purportedly indicted the Plaintiff of charges and allegations for which he was never given an opportunity to defend himself, was null and void as it offended the principle of natural justice and fair hearing.
(4) A declaration that the appointment and imposition of the 4th Defendant as Vice–Chancellor was null and void ab-initio, while Appellant was still the substantive vice-chancellor of the Kano State University of Science and Technology.
(5) An Order of Court directing the payment of entitlements of Appellant for the residue of the term of appointment of the Plaintiff, and to immediately pay the Plaintiff his entitlements (damages) for the 1 year remaining as Vice-Chancellor of the 3rd Defendant, the damages – being the sum total of Appellant’s salaries and entitlement for the period of one year he was not allowed to complete his term of service.
The Respondents shall also pay the cost of the Appeal assessed at N100,000.00 (One Hundred Thousand Naira) only to the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: MY learned brother ITA GEORGE MBABA, J.C.A. availed me in advance, a draft copy of his judgment. I am in agreement with his reasoning and conclusion; accordingly, I also allow the appeal, I abide by all the consequential orders in the lead judgment including that as to costs.
USMAN ALHAJI MUSALE, J.C.A.: I have read before now in draft, the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the reasoning and conclusion reached by him and adopt same as mine. I abide by the consequential orders made therein.
Appearances:
BAYO FUNSO ADARAMOLA, ESQ., WITH HIM, S.M. TRIMIZI, ESQ., AND A.S. MOHAMMAD, ESQ. For Appellant(s)
H.H. SULEIMAN (ADCL) KANO STATE. For Respondent(s)