PROFESSOR S. O. ABDULRAHEEM & ORS. V. PROFESSOR B. J. OLUFEAGBA & ORS.
(2006)LCN/2049(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of July, 2006
CA/IL/65/2005
RATIO
COURT PRACTICE: WHETHER THE DECISION OR JUDGMENT OF A COURT IS SET ASIDE BY A HIGHER COURT THAT IS THE END OF THE JUDGMENT
is trite law that when the decision or judgment of a court is set aside by a higher court that is the end of the judgment. The purported award alluded to by appellants was totally non-existent. PER MUNTAKA-COOMASSIE, J.C.A
EVIDENCE: WHETHER WHEN A PLEA OF ESTOPPEL IS RAISED A DEFENDANT IS BARRED FROM RE-LITIGATING AN ISSUE CONCLUSIVELY DECIDED IN A PREVIOUS SUIT
When a plea of issue estoppel is raised by a defendant as in this case, it is to bar a party from re-litigating an issue conclusively decided in a previous suit in a later suit. See: Milad, Benue State v. O. P. Ulegede (2001) 10 SCNJ 43; (2001) 17 NWLR (Pt. 741) 194. PER TIJJANI ABDULLAHI J.C.A
COURT PRACTICE: WHETHER A PARTY CAN WAIVE HIS/HER PERSONAL LEGAL RIGHT
I must re-state that a party can waive all his personal legal rights, the fact that the respondents willingly signed and accepted clauses 1 and 10 of the memorandum of the terms of appointment. This shows that they waived the provisions of section 15 of the Act and I so hold. PER MUNTAKA-COOMASSIE, J.C.A
JUSTICES:
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASS Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR S. O.ABDULRAHEEM
(Vice-Chancellor of University of Ilorin)
2. TUNDE BALOGUN
(Registrar, University of Ilorin)
3. UNIVERSITY OF ILORIN
4. THE GOVERNING COUNCIL OF UNIVERSITY OF ILORIN – Appellant(s)
AND
PROFESSOR B. J. OLUFEAGBA & 43 ORS. – Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is another appeal against the judgment of Hon. Justice P. F. Olayiwola of the Federal High Court, Ilorin delivered on 16/7/05 in favour of the 42 of the plaintiffs in respect of all the heads of their claim.
The plaintiffs/respondents claimed against the defendants/appellants as follows:-
“1. A declaration that the defendants’ letter dated 22nd May, 2001 to the plaintiffs titled “cessation of agreement”, purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires, null and void and of no effect whatsoever.
2. A declaration that the plaintiffs are still in the service of the 3rd defendant.
3. A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to re-instate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the Pro-chancellor of the 4th defendant and the 1st defendant.
4. A declaration that the defendants are not entitled to, summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other related statutes.
5. A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that the plaintiffs are permanent am pensionable staffs of the University.
6. A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot over-ride the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
7. A declaration that the purported termination of the plaintiffs’ appointment is in the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
8. An order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letters to the plaintiffs in this regard.
9. An order compelling the defendants to comply with directive of the Federal Government through the National University Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
10. An order compelling the defendants to re-instate the plaintiffs in their posts in University of Ilorin with all their rights entitlements and other prerequisites of their offices and an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of the judgment and thenceforth.”
Pleadings were filed by both parties. The defendants thereafter filed a notice of preliminary objection on the 7/7/2002 as follows:-
An order of the Honourable Court setting the preliminary objection contained in paragraph 1 of the statement of defence for hearing and dismissing and/or striking out the case on the said grounds viz:-
1. Other court lacks the vires and/or jurisdiction to entertain the plaintiffs’ claim.
2. The case of the plaintiffs is caught by mis-joinder of action.
3. The suit of the plaintiffs disclose no reasonable cause of action or any cause of action at all.
4. The action of the plaintiffs is statute barred and therefore has to be dismissed.
5. The suit is a trade dispute between the employees and employers.
This motion was not decided as the lower court ordered that the conflict as to when the letters of cessation of appointments were received only be decided at the hearing when both parties have called their respective witnesses. This never happened. At the hearing the plaintiffs called two witnesses – PW 1- Prof. Jimi Olufengbe testified and some documents were tendered and admitted through him. After his testimony he was thoroughly cross-examined.
The 2nd witness testified as PW2, he is Prof. Taiwo Oloruntoba academic staff of the University of Ilorin.
The witness admitted that the failure of the defendants to reinstate the said lecturers (plaintiffs) was one of the issues that got to I.A.P. The defendants called equally two witnesses, namely; DW1 DW2. One Marnwa Eya Ogbonna (DW1) identified the letters of cessation of appointment exhibits 83 – 119. He testified that the appointments were properly brought to an end. The termination is by notice or salary in lieu of notice. He identified exhibits 136 referred to their provisions he then denied the plaintiffs were sacked for participating in national strike. He further testified that the employments were brought to an end for the plaintiffs’ failure to discharge their duties. He said that the issue was taken to I.A.P. because the plaintiffs were not at work.
DW2 one Titus Agboola Adeyemi testified to the effect that the vacancies created as a result of the cessation of appointments of the plaintiffs have been filled. He said that after the termination of the plaintiffs’ appointment the National ASUU tool, the matter to IAP, the IAP confirmed tile termination – Exhibit 38.
In view of what had happened in the sister case CA/1L/64/05 where I extensively reviewed the facts and evidence, I will not go into all details in this appeal.
Learned counsel to both parties thereafter addressed the lower court.
It is to be noted however that the lower court in a considered ruling dismissed the preliminary objection filed by the appellants.
The lower court delivered its judgment wherein it granted the plaintiffs claims.
The defendants being dissatisfied appealed to this court and filed a notice on 22/7/2005. In accordance with the rules of this court, both parties filed and exchanged their respective briefs of argument. The appellants in their brief formulated five issues for determination as follows:-
1. Whether the proceedings of the trial court is not a nullity in view of the death of two of the respondents during the pendency of the case and which death was to the courts knowledge which still refused to strike out the names of the deceased respondents.
2. Whether the trial court was not in error in ordering the re-instatement of 42 of the 44 respondents, when from available evidence their positions have been filled which a number of them were gainfully employed elsewhere.
3. Whether the trial court was right in holding that the termination of the respondents’ appointment was wrongful, illegal, null and void thereby invoking section 15 of the University of Ilorin Act.
4. Whether the trial court was right in ordering the payment of salaries and allowances of the respondents from February, 2001, till date of judgment and thereafter having regard to the applicable law’s and facts and circumstances of the case and in granting the other reliefs awarded to the respondents.
5. Whether the trial court was right in assuming jurisdiction to entertain the case of the respondents and grant their claims when their case was caught by estoppel.
The respondents in turn in their brief of argument formulated four issues for determination as follows:-
(i) Whether the learned trial Judge was right in holding that the plaintiffs/respondents’ appointments were terminated by the appellants on grounds of misconduct
(disciplinary grounds) without following due process as laid down by statute of the University of Ilorin that is, Unilorin Act, Cap. 455, Laws of the Federation, 1990 and exhibits 81 (the revised senior staff regulations of the University of Ilorin) and whether the learned trial Judge was right in declaring the termination of the respondents’ appointment by the appellants as being null and void and of no effect and setting same aside.
Grounds 3, 4 and 12 of the grounds of appeal.
(ii) Whether the death of the two of the plaintiffs (3rd and 29th plaintiffs) in the cause of the proceedings at the trial court is fatal to the plaintiffs case and whether the learned trial Judge was right in granting the relief for payment of accumulated salaries and allowances to the deceased plaintiffs up to the time of their death. Grounds 8 and 9 of the grounds of appeal.
(iii) Whether the learned trial Judge was right in holding that the plaintiffs’ suit was not caught by issue estoppel, and that an IAP award allude to by the appellants at the trial was non-existent having been set aside by the appropriate authorities – Grounds 5 and 10 of the grounds of appeal.
(iv) Whether the learned trial Judge was right in granting all the reliefs of the plaintiffs as per writ of summons and statement of claim (as amended). And whether the learned trial Judge was right in ordering the re-instatement of the plaintiffs back to their jobs at the University of Ilorin having regard to the general circumstances of this case. Grounds 2, 6, 7, 11 and 13 of the grounds of appeal”.
The appellants’ counsel in his argument submitted that being an action in personam, the respondents had a burden/duty to make necessary rectification after the death of the 3rd and 29th respondents so that the case may continue. This the respondents failed to do and its fatal to their case. Since the action was joint and initiated by some single originating process. He cited the case of:-
Ajayi v. Igbinoghene (2001) 15 NWLR (Pt. 735) 31 at 38.
On the 2nd issue, counsel submitted that given the peculiarity of this case being that there has been an intervening factor i.e. the vacancies have been filled up, the trial court was in manifest error to have ordered the re-instatement notwithstanding the fact that the appointment was said to be with statutory flavour. He cited the cases of-
(a) Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 at 436;
(b) Igbe v. Governor of Bendel State (1983) 1 S.C.L.R. 73/88.
The learned counsel distinguished the case of U.N. T.H.M.B. v. Nnoli (1994) 10 SCNJ 71/85; (1994) 8 NWLR (Pt. 363) 376 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 from the present case, as the position in those cases have not been filled.
On the 3rd issue, learned counsel referred to exhibits 180 – 217 (memoranda of appointment) and submitted that the view of the trial court exhibits are subject to the provisions of section 15 Unilorin Act, Cap. 452 is totally wrong. He submitted that there was nothing in the said statute or the regulations (exhibit 81) which precluded the respondents from contracting out these provisions of the Act and the staff regulations. A party, he submitted can waive all his personal legal rights. He relied on the case of Ariori v. Elemo (1983) 1 SCNLR 1 at 9. He therefore submitted that since the provisions contained in section 15 of the Act and the staff regulations are made for the special benefits of the respondents, the signing and acceptance of clauses 1 and 10 of the memoranda is more than evidence of renunciation or waiver of the provisions of section 15 of the Act. He cited this “Quilibet potest renunciate juri prose introducto” and the cases of- Mobil Producing (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 at 37; Menakaya v. Menakaya (2001) 16NWLR (Pt. 738) 203 at 266. In addition, he submitted that since the termination is done in writing, it is wrong for the trial Judge to go outside the letters of termination. He relied on:-
Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589/626.
He further submitted that where the council exercises its undoubted power under section 15(3) of the Act to terminate an employment there is no need to fall back on or take the steps set in section 15(1).
On the 4th issue, learned counsel submitted that the order for reinstatement and payment of salaries and allowances was wrongfully made as it was given in clear violation of the provisions of section 42(1)(a) of the Trade Disputes Act, Cap. 432 of the Laws of the Federation, 1990, particularly as the respondents willfully withdrew their services from the appellants. He further submitted that the letters of cessation of appointment were intra vires the appellants by virtue of section 3(1) of the Unilorin Act, Cap. 455 as they can engage and disengage the respondents. He who has the power to hire has the power to fire – Union Bank of Nig. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 671.
Notwithstanding the statutory nature of the employment, counsel further submitted, the employment could be brought to an end in the mode contemplated by the parties. He cites David Osuagwu v. A.-G., Anambra (1993) 4 NWLR (Pt. 285) 13 at 40.
On exhibit 122, learned counsel submitted that it has not been established why this trial should enforce compliance with the letter.
On the 5th issue, the learned counsel submitted that the holding of the trial court that the parties and issues before that court are different from the ones before the IAP are misconceived as the trial court glossed over the fact that the appellants are privies the FGN while the respondents are privies ASUU. He cited the case of Balogun v. Adejobi (1995) 1 SCNJ 242; (1995) 2 NWLR (Pt. 376) 131 at 264. Again on this point, learned counsel submitted that the trial court’s interpretation of section 12(3) of the Trade Dispute Act and the holding that the award was withdrawn is not a good ground to hold that the award is non-existent. Section 13(1) of the Trade Disputes Act envisages the filing of an appeal against the award but none was done in this case. He therefore concluded that since IAP had made an award and made pronouncements that the termination of the respondents’ appointment was justified, that issue was resolved and could not be re-opened by any other tribunal, including the lower court. The respondents’ claims were therefore caught by the doctrine of issue estoppel. He relied on the case of Fadiora v. Gbadebo (1978) 3 SC 219 at 155 and urged this court to allow the appeal.
The respondents in their brief of argument submitted on issue No. 1 thus:
“It is humbly submitted that the termination of the respondents’ appointments by the appellants was for misconduct (that is on disciplinary grounds) and the appellants failed to observe and/or follow due process, which is mandatory for the caliber of staff involved. As lecturers of the University, there is no dispute about the fact that respondents’ appointment are protected by statute, that is section 15, Unilorin Act, Cap. 455, Laws of the Federation of 1990 and Chapter 8 of exhibit 81 (the Revised Senior Staff Regulations) made pursuant to the said Act of the University and applicable to the respondents’ employment with the University.
It is further humbly submitted that the learned trial Judge properly evaluated the oral and documentary evidence proffered by the parties in this case before coming to the conclusion that contrary to the claim of the appellants, the appointments of the respondents were terminated by the appellants without the appellants observing and/or following the process and procedure for fair hearing for the respondents as provided for in S. 15(1) of Unilorin Act, exhibit 81 and even the Constitution of the Federal Republic of Nigeria, 1999.
My Lords it is humbly submitted that from the foregoing on issue one, the learned trial Judge was right in holding that the appellants have no power and/or right under Unilorin Act and exhibit 81 to summarily and arbitrarily terminate the respondents’ appointments.
And that the learned trial Judge was also right in holding that from the evidence before the court, the appellants, terminated the respondents’ appointment without giving the respondents any hearing at all in contravention of the provisions of S. 15 of University of Ilorin Act, Chapter 8 of exhibit 81 and the Constitution of the Federal Republic of Nigeria, 1999.
Your Lordships are urged to answer our issue one in the affirmative.
Issue II.
My Lords, the appellants have made a “heavy weather” on the death of some of the plaintiffs at the trial court before judgment was given. It is true my Lords that the 29th plaintiff died in June 2004 and at page 266 of the record of proceedings the appellants” counsel made it an issue. The 3rd plaintiff again died on 8th January, 2005. From the way the appellants have strenuously canvassed the issue of the death of the plaintiffs, the impression ought not to be given that the appellants are pleased or happy with the death of the plaintiffs.
Unfortunately not all the remaining plaintiff who were fortunate to hear the judgment of the Federal High Court are still alive up till today. This is because Professor A. E. Annor – the 9th plaintiff died about month after the said judgment.
Be that as it may, it is humbly submitted that the death of the said plaintiffs did not adversely affect the plaintiffs’ case at the trial court. The appellants seem to be saying in their (brief of argument, though not directly and clearly) that because of the death of 3rd and 29th plaintiffs during trial of the case at the trial court, the case should have ended and should not have been continued. The appellants’ contention is erroneous and misleading and your Lordships are urged to reject it.
Your Lordships are urged to hold that the death of 3rd and 29th plaintiffs did not invalidate the case of the plaintiffs and the order the learned trial Judge made in his judgment concerning the deceaseds’ entitlements is in order. Your Lordships are urged to answer our issue two also in the affirmative.
Issue III.
My Lords, the appellants have also raised the matter of ‘issue estoppel’ in their grounds 5 and 10 of the grounds of appeal of the original notice of appeal. We have formulated our issue three on the said grounds. And we submit most humbly that the materials, exhibits and evidence placed before the trial clearly show that ‘issue estoppel’ cannot be sustained against the plaintiffs’ (respondents’) case by the appellants.
The learned trial Judge had no difficulty in holding in paragraph 7 of his judgment on page 379 of the record that: –
‘It is therefore crystal clear that the issues and parties are different from the parties before this Honourable Court in respect of this matter.
Furthermore, the award has been withdrawn.
The foregoing, my Lords with due respect, sums up the true position of this case and reflects the correct position of the law. It puts an effective end to the baseless claim of the appellants that respondents’ case is caught by issue estoppel.
Your Lordships are most humbly urged to answer our issue three in the affirmative also.
Issue IV.
In arguing our issue four, I seek your Lordships’ leave to adopt argument on issue one, as part of the argument for issue four also. And in addition to argue further that the learned trial Judge having properly and justifiably nullified and set aside the termination of plaintiffs/respondents’ appointments was right in granting all their reliefs including the order for their reinstatement.
It is humbly submitted that having properly nullified and set aside the appellants’ termination of the respondents appointments, the learned trial Judge was right in granting the reliefs of the respondents as stated in their writ of summons and statement of claim at pages 275 – 282 of the record of proceedings.
On the whole, Your Lordships are urged to dismiss this appeal and affirm the judgment of the Federal High Court on the grounds that:
(a) The learned trial Judge was right in holding that by virtue of the provisions of S.15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of 1990 and Chapter 8 exhibit 81 (the Revised Senior Staff Regulations) governing the condition of the service of the respondents with the appellants, the respondents’ appointments have statutory flavour. And this being the case, the appellants have no right or power to summarily and arbitrarily terminate the respondents’ appointments. The letters of employment and memoranda which the appellants relied on to sack the respondents are inferior and subject to the provisions of the statutes governing the services of the respondents with the University. The learned trial Judge was therefore right in declaring that the termination of the respondents’ appointment by the appellants as being null and void and of no effect having been done in utter disregard to the provisions of the statute of the University and the fact that the appellants sacked the respondents for misconduct (disciplinary grounds) without giving the respondents fair hearing.
(b) The learned trial Judge was right in granting the reliefs of the plaintiffs and specifically making an order in his judgment that the 3rd and 29th plaintiffs who died before the judgment was delivered were entitled to payment of their accumulated salaries and allowances up till the time of their death and not beyond. And that the death of the said plaintiffs was not fatal to the plaintiffs’ case in any way since the suit could proceed/continue with the surviving plaintiffs.
(c) The plaintiffs’ suit was not caught by issue estoppel as alleged by the appellants because the matter at the IAP which appellants relied upon was completely different from the plaintiffs’ case. The parties and the subject matter are not the same at all. There was no valid and existing award of the IAP since the purported award, which the appellants alluded to, had been cancelled and withdrawn by the Minister of Labour as he has power to do by virtue of S. 12 of the Trade Dispute Act, Cap. 433, Laws of the Federation of 1990. And that by section 13(4) of the same Act an award cannot be valid unless it is confirmed by the Minister and gazetted. Nothing of the sort was done by the Minister instead there is evidence to the effect that the Minister never confirmed any award and never gazetted any. There is therefore absolutely no basis for the appellants’ claim that plaintiffs’ case is caught by issue estoppel. It is trite law that when the decision or judgment of a court is set aside by a higher court that is the end of the judgment. The purported award alluded to by appellants was totally non-existent.
(d) The trial court properly nullified the termination of plaintiffs’ appointments by the appellants’ and the court was right in granting all the reliefs of the plaintiffs including order for reinstatement. The appellants have no right to present the court with a fait accompli by purporting to “replace” the plaintiffs while the suit challenging their sack is pending in court. Besides, the appellants chose to deliberately ignore the directive of the Federal Government since June 2001 as shown in exhibit 122 to reinstate the plaintiffs/respondents back to their jobs. The evidence on record at the trial court showed that the appellants’ claim of ‘replacing’ the plaintiffs is a farce. The plaintiffs’ right to their jobs is analogous to property right and the appellants have no right to frustrate the power of the court to order reinstatement of the plaintiffs back to their jobs in the University”.
The appellants filed a reply brief in which it was submitted that the issue of waiver is in the nature of the preliminary objection for which Order 3 rule 15(1) of Court of Appeal Rules is mandatory and without filing any notice of preliminary objection, the respondents could not raise it in their brief as they did. He cited the case of Odigie v. Nigeria Paper Mill Ltd. (1995) 8 NWLR (Pt. 211) 338.
On the question of inadmissibility of exhibit D.38 he submitted that the document was admitted with the consent of both parties. On the question of replacement of the plaintiffs, counsel submitted that the issue was pleaded.
These are the submissions of both learned counsel to the parties. I have earlier set out the evidence adduced by the parties’ witnesses in order to enable me appreciate the issues involved in this highly important appeal.
I have read and digested the stance taken by the learned trial Judge especially on page 382 of the record. It is clear from the record though, that two of the plaintiffs were reported dead during the pendency of the matter at the trial court. The trial court allowed an adjournment to enable the respondents take necessary steps to cause a substitution to be made but also that was not forthcoming. It is clear in law that the cause of action does not survive any of them.
This court has already taken a decision in this type of claim. It was held in Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407/422 that “a personal right of action dies with the person – “actio personalis
moritio cum persona”. The respondents were given the opportunity to either make a substitution or withdraw the case. Failure to do one of the two becomes fatal to their case. I hold different view based on the authorities which were cited earlier on that the whole action in the lower court was rendered incompetent and all the orders made by the lower court cannot be possibly enforced. The 1st issue treated by the appellants is resolved in their favour.
On the second issue formulated by the appellants and argued on pages 13 – 17 of their brief, I am also unable to agree with learned Judge of the lower court.
The approach of learned Judge is that the respondents’ appointment were terminated by the appellants under section 15(1) of the University of Ilorin Act. I have already discussed the argument and submissions of both counsel under this issue.
My understanding is that the “cessation” was effected under section 15(3) of the University of Ilorin Act, Cap. 455. The issue is the question of “waiver” which is a right to any person. The respondent had waived any rights they may have under the provisions of section 15 Unilorin Act by signing the memorandum of appointment. Since the respondents decided to join in the ASUU strike contrary to what they have both signed with the University Authority, they should have themselves to blame. There is evidence that all other workers were on their duty posts at the material period working but the respondents refused to work. It is also in evidence as I stated in this judgment that the respondents were invited to come to a meeting with the authority to iron out things but the respondents turned down the invitation for the reason best known to them. One, they say, can lead a Horse to a river but cannot force it to drink water. Their attitude (i.e. respondents) cannot find support in law.
I refer to the Supreme Court’s case of Scott-Enakpor v. Ikaibe (1979) 1 S.C. p. 6; Mankanu v. Salman (2005) 4 NWLR (Pt. 915) 270/301; and 653/673. I think I will agree with the learned counsel to the appellants in this appeal that in terminating the appointment of the respondents under S. 15(3) of the Unilorin Act the University has done its possible best to reasonably comply with the subsection 15 of that Act – Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) p. 290/302 and Esiaga v. Unical (2004) 7 NWLR (Pt. 872) 366/387. I agree that the respondents’ employment has statutory flavour with permanent and pensionable rights and their appointments can only be terminated in accordance with the provisions of a statute – Olaniyan v. Unilag supra and Eperokun v. Unilag supra.
However where the provisions of an act appeared to be slightly different from the others it is not necessary to make use of those cases decided differently. The provisions of S. 15(3) of the Unilorin Act is a complete departure from section 15(1) of the Unilorin Act supra which is in pari materia with that of Lagos University Act. I hold that under S. 15(3) of the University of Ilorin Act, Cap. 455, the appellants’ action in terminating the employments of the respondents was done within the dictate of that subsection and it is in order.
The cases therefore of Olaniyan v. University of Lagos supra, Teaching Hospital v. Nnoli supra, Eperokun v. University of Lagos supra are different i.e. the facts and laws are different and distinguishable. In those cases supra and rest of them, there was no evidence that the positions/vacancies of the removed employees, were filled at any time prior to the making of the order of reinstatement by the lower court. In this particular case, I agree with the learned counsel for the appellants that there is a credible evidence before the lower court that vacancies created by the exit of the respondents had been filled so that the 3rd appellant, University of Ilorin, will not fail in the realization of its objectives as set out in section 2( 1)(a) – (c) of Cap. 455 of the Uni versity of Ilorin Act. It is also evident and the lower court cannot claim ignorance that some of the respondents have obtained and secured gainful employments elsewhere during the pendency of the matter before the lower court.
In the circumstances, how can the lower court lawfully and correctly too make such orders like reinstatements and to receive their salaries and other allowances. It will sound near impossible. Where can the University source such type of colossal amount? Tell me. It would amount to ordering an impossibility. One cannot talk about contempt of the lower court by replacing the dismissed workers. Otherwise, i.e. if the University did not promptly fill in the required lecturers, the University would have collapsed by now. It will then be failing in their responsibility to provide good services to the society and the students. I completely agree with the legal maxim that “a court does not act in vain and will not make an order that is incapable of being carried out. Human touching should have been employed. The employees decided voluntarily to go about doing what they did knowing fully aware what the consequences were. They do not deserve this unbridled show of sympathy. See Olatunbosun v. NISER C Council (1986) 3 NWLR (Pt. 29) 435: See also Isievwore v. NEPA supra at p. 436. This case does not fall on any exception to the general rule of re-instatement and or specific performance of a contract of service. With these different provisions of the Universities of Lagos and that of Unilorin in S. 15(3) thereof.
This particular arrangement which is governed by agreement signed by both parties and not governed under S. 15(1) of ‘the University of Ilorin Act, their removal by way of termination, cessation or dismissal must be in the mode or form agreed upon by both the appellants and the respondents. The appellants are only liable to damages, assuming that the dismissal; was wrongful which even was not agreed. See the cases of Isievwore v. NEPA supra; at p. 434. Had the respondents proved that the dismissal was wrongful then I will treat the matter as such and perhaps consider awarding damages to them and certainly not re-instatement. See also Chukwumah v. Shell Petroleum Co. (1993) 4 NWLR (Pt. 289) 512 and U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 649.
The Supreme Court, let us hold the bull by the horn, held against reinstating workers like the respondents even though their employment has statutory flavour and who have been removed in gross violation of the relevant provisions of the statute e.g. S. 15(1) of the Unilorin Act. This will happen where there are supervening events which made it impossible for the employee to return to his post. See Igbe v. Gov., Bendel State supra and Isievwore v. NEPA supra at P. 436 paragraphs F – H per Ejiwunmi, JSC.
I must re-state that a party can waive all his personal legal rights, the fact that the respondents willingly signed and accepted clauses 1 and 10 of the memorandum of the terms of appointment. This shows that they waived the provisions of section 15 of the Act and I so hold. The decision of the lower court that the termination was wrongful, illegal, null and void could not hold water same is set aside. Having considered exhibits 89 and 119 and section 15(3) of the said Act, I hold that the “cessation” of the respondents were properly done under S. 15(3) of the Act and there was no necessity for looking at S. 15(1) of the same Act – Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290/302; and Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) 366/387. The issue under consideration, i.e. No.3, is hereby resolved in favour of the appellant.
On issue No.4, I have already held that the respondents themselves admitted being on a strike action until their appointments were terminated. See the evidence of PW2 at page 211 of the record.
Having closely considered the provisions of S. 42(1)(a) of the Trade Dispute, Cap. 432, LFN, 1990 I hold that the respondents are not entitled to payment of salaries and allowances for the period stated.
It was inconsiderate for the lower court to award them such salaries and allowances in fact, it is illegal in fact it is inequitable for the lower court to have ordered for the payment of the respondents after withholding their services from the 3rd appellant. Equity does not do inequity – Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625/640. The order for re-instatement cannot possibly be automatic or as a matter of course on the ground that “a termination is unlawful” this cannot be the law. Where the employees were removed from offices it may be right to say that they were entitled to the reliefs because the invalid removal prevented them from performing their lawful duties – Eperokin v. Unilag supra; and Olaniyan v. Unilag supra and UNTH v. Nnoli supra. These cases were correctly decided and I am bound by the decisions reached thereat. In the case at hand, these case could be distinguished because it was their voluntary withholding of services by the respondents that caused the termination of their appointments. I have considered the submissions of the respondents as discussed earlier and found that all the ten reliefs dished out by the trial court were ordered in error. The fourth issue is also resolved in favour of the appellants herein.
On issue No.5, I have analysed same and I have already stated that the subject matter of the case had been agitated and decided by a competent court i.e. the Industrial Arbitration Panel – which resolved that the termination was justified, legal and lawful. The matter before the court should have been decided elsewhere. The issue is also resolved in favour of the appellants.
Having resolved all the issues canvassed in this appeal against the respondents and in favour of the appellants I hold that the appeal is meritorious. Same is hereby allowed. The decision of the lower court in its entirety is hereby set aside. The claims of the respondents in the lower court are hereby dismissed. No order as to costs.
ABDULLAHI, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother Muntaka-Coomassie, J.C.A., just delivered. I am in agreement with his reasoning and conclusions that there is merit in the appeal and must be allowed. I too allow it. I wish however to add my own views to the Judgment of my learned brother.
This is an appeal against the judgment of the Federal High Court, Ilorin, presided over by Hon. P.F. Olayiwola in case No. PHC/IL/CS/29/2001 which was delivered on the 16th day of July, 2005, in the said judgment, all the reliefs sought by the respondent/plaintiffs were granted by the trial court. The said judgment is at pages 354 – 381 of the record.
The respondents as plaintiffs in the lower court instituted an action against the appellants who were defendants in the court below.
In paragraph 21 of the statement of claim, the respondents claimed against the appellants as follows:-
“Whereof the plaintiffs claim against the defendants are as follows:
(a) A declaration that the defendants’ letter dated 22nd May, 2001 to the plaintiffs titled “cessation of appointment” purporting to terminate the plaintiffs appointment with the 3rd defendant is ultra-vires null and void and of no effect whatsoever.
(b) A declaration that the plaintiffs are still in the service of the 3rd defendant.
(c) A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the pro-chancellor of the 4th defendant, and the 1st defendant.
(d) A declaration that the defendants are not entitled to summarily, terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other relevant statutes.
(e) A declaration that the purported termination of the plaintiffs appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.
(j) A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
(g) A declaration that the purported termination of the plaintiffs appointment by the defendant negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
(h) An order setting aside the purported termination of plaintiffs appointment and nullifying the defendants’ letter of 22nd May, 2001 to the plaintiffs in that regard.
(i) An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
(j) An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts in University of Ilorin with all their rights, entitlements and their prerequisites of their offices.
(k) And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February, 2001, till the day of judgment and thereforth. ”
The appellants joined issues with the respondents through their further amended statement of defence at pages 303 – 309 of the record and accordingly denied liability. The respondents in return filed a further amended reply to statement of defence and this could be found at pages 326 – 330 of the record. After the close of pleadings the matter proceeded to trial.
The respondent as plaintiffs called two witnesses, who testified for them. The 1st respondent was the PW1 and his testimony could be found at pages 170-179, 184-189,203-209. The PW2 was one Taiwo Oloruntoba-Oju the branch Chairman of Academic Staff Union of Universities ASUU, University of Ilorin at the relevant time. His testimonies span pages 209 – 212 and 243 – 246 of the record. A number of exhibits were tendered through the PW 1 and 2.
The appellants as defendants also called two witnesses, DW1 and DW2 respectively.
The DW1 was one Eya Ogbonna, his testimony spanned pages 294-301 of the record. The DW2 was one Titus Agboola Adeyemi, a principal Assistant Registrar with the 3rd appellant. His testimonies spanned pages 323-333 and pages 336-339 of the record. A number of exhibits were also tendered through these witnesses.
Learned counsel to the parties upon the close of evidence, addressed the trial court orally. The address of the defendants/appellants is at pages 340-346 while that of the plaintiffs/respondents is at pages 346-353 of the record. The appellants reply address is also contained at page 353. As stated earlier, the trial court delivered a considered judgment spanning pages 354-381 of the record in which it granted all the reliefs sought by the respondents.
The appellants’ counsel formulated 5 issues for determination.
On his part, the respondents’ counsel formulated four issues for our determination. Since the issues have been reproduced in the lead judgment, there is no need to set them out in this judgment.
Learned counsel for the respondents in his brief submitted copiously that the termination of the appointments of the respondents by the appellants was done in complete disregard of the respondents’ right to fair hearing and also against the provisions of section 15(1) of the University of Ilorin Act, which governs the relationship between the two disputing parties. i.e. appellants and respondents.
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 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 and constituted in such manner as to secure its independence and impartially. ”
From the provision of the said Constitution stated (supra) it is very clear that in the determination of his civil rights and obligations, a citizen of this country is entitled to a fair hearing within a reasonable time. I am of the considered view that fair hearing does not mean forcing or compelling a person to enforce his right which is perceived to have been violated. In the case we have at hand, the appellants, in exhibit 20, invited the respondents to appear before the 4th appellants with a view to defending themselves on the allegation levelled against them. There is no evidence on record to show that they availed themselves with that opportunity.
I am of the considered view that since they were given an opportunity to defend themselves, the University Authority cannot be said to have acted contrary to either the provision of section 36(1) of the Constitution or section 15(1) and (3) of the Unilorin Act.
The court below, ordered the reinstatement of the respondents with their entitlements from the time their appointments were terminated. It is instructive to note that DW1 testified to the effect that at all relevant times, some other staffers of the 3rd appellant were at work, the respondents were on strike. Notwithstanding exhibits Dl and D2 conditioning payment of salary on signing of register and resumption of working by the academic staff members, whilst other members of ASUU, complied and signed the Registers as requested and this is borne out by exhibits D3, the respondents neither signed the registers nor went back to work. This state of affairs continued until their appointments were terminated. In the light of the foregoing, I am of the strong view that the learned trial Judge was legally and factually wrong to have ordered not only the reinstatement of the respondents but the payment to them of salaries and allowances from February, 2001 until the determination of the case and thereafter.
The order of the learned trial Judge was given in clear violation of the provisions of section 42(1)(a) of the Trade Dispute Act, Cap. 432, Laws of the Federation, 1990 which provides as follows:
“42.(1) Notwithstanding anything contained in this Act or in any other law –
(a) Where any worker take part in a strike he shall not be entitled to any wages or other remuneration for the period of the strike and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly; ”
It is my considered view that in the light of the unambiguous provision of the law stated supra, the award of the salaries and allowances to the respondents by the trial Judge is not only illegal but also inequitable.
In sum, for these reasons and the fuller ones stated in the lead judgment of my learned brother Muntaka-Coomassie, J.C.A., I too allow the appeal and set aside the judgment of the lower court, I abide by the order of costs contained in the lead judgment.
OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Coomassie, JCA and with greatest respect I wish to depart from his views. The following are my reasons:
This is an appeal against the judgment of Hon. Justice P. F. Olayiwola of the Federal High Court, Ilorin delivered on 16th day of July, 2005 entering judgment in favour of forty-four of the plaintiffs in respect of all the heads of their claim.
The appellants were the defendants at the lower court while the respondents were the plaintiffs. The facts which gave rise to this appeal are as follows:
The respondents were employed at different times in different departments as lecturers of the University of Ilorin. Their letters of appointment are exhibits 2-44. The respondents’ appointments were confirmed by letters admitted as exhibits 45-80 and exhibits 123-127.
The appellants by letters titled cessation of appointment and dated 22/5/01 admitted as exhibits 81-119, terminated the appointment of the respondents. The respondents aggrieved by the action of the appellants, filed a writ of summons and statement of claim on 21/8/01. Later, the respondents filed an amended writ of summons and statement of claim on 8/12/2004; it was deemed filed on 15/12/2004.
A further amended reply to statement of defence dated 15/3/2005 was filed on the same day. The appellants as defendants in the trial court filed on 9/3/05 a further amended statement of defence dated 8/3/05.
The respondents claimed by paragraph 21 of the amended statement of claim the following reliefs-
“Whereof the plaintiffs claim against the defendants are as follows:
(a) A declaration that the defendants’ letter dated 22nd May, 2001 to the plaintiffs titled “cessation of appointment” purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires, null and void and of no effect whatsoever.
(b) A declaration that the plaintiffs are still in the service of the 3rd defendant.
(c) A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the pro-chancellor of the 4th defendant, and the 1st defendant.
(d) A declaration that the defendants are not entitled to summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other relevant statutes.
(e) A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.
(f) A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
(g) A declaration that the purported termination of the plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
(h) An order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letter of 22nd May, 2001 to the plaintiffs in that regard.
(i) An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
(j) An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of judgment and thenceforth. ”
(Pages 281-282 of the records)
At the trial, the respondents called two witnesses and through PW1, 261 documentary exhibits were tendered. Exhibits 262-265 were admitted through PW2. The appellants called two witnesses  and DW1 tendered exhibit D3-D42. DW2 tendered exhibits D45a and D45b.
P.W.1 was Prof. B. J. Olufeagba, who testified that the respondents were lecturers of the University of Ilorin, who had been sacked because they went on local then national strike as members of the local and later national Academic Staff Union of Universities (ASUU). He denied that the respondents received letters of ultimatum asking them to resume work. He claimed that they were never queried and that no disciplinary procedure was employed before the summary termination of their appointments by the appellants. He said that the national negotiating team had agreed that no one should be sacked as a result of the strike action. The Federal Government also directed the Executive Secretary of the National Universities Commission (NUC), to request that the sacked lecturers should be recalled, but the appellants disobeyed the directives. He said that the letters of cessation of appointment were based on misconduct. He stated that neither he nor any other respondent was a party to the case between the Federal Government and ASUU.
P.W.2 was Prof. T. O. Oloruntoba. He testified as the Chairman of ASUU of the University of Ilorin. He stated that the lecturers were prevented from entering the university premises during the period of the strike. He agreed that a few of the respondents had secured employment to keep body and soul together.
D.W.1 was Mr. Marcel Eya Ogbonna, a Chief Executive Officer in charge of administration at the University. He asserted that the appointment of the respondents was properly brought to an end. He agreed that the appointment of the respondents was brought to an end for failure to discharge their duties. He claimed that the appellants effected the Federal Government directive for the lecturers to return to work, sign the register or lose their job. He claimed that the Federal Government did not sanction the appellants for disobeying the directive to reabsorb the respondents contained in exhibit 122. He said the Federal Government took National ASUU to the Industrial Arbitration Panel for threatening another strike if the lecturers were not reinstated. He conceded that the cessation of appointment was on allegation of misconduct.
D.W.2 was Mr. Titus Agboola Adeyemi, who worked with the appellants as a Principal Assistant Registrar. He swore that the vacancies created by the termination of appointment of the respondents had been filled by the University in the interest of the students. He said the Industrial Arbitration Panel had vindicated the stand of the University in respect of the 44 lecturers and that the National ASUU had appealed on the matter to the Federal High Court, Abuja.
Learned counsel on both sides later addressed the court.
In a considered judgment, the learned trial Judge gave judgment in favour of the respondents and held as follows:
“In the light of the foregoing, it is my opinion that the plaintiffs are entitled to the reliefs sought from court in reliefs 1-9. It is also hereby ordered that the defendants should reinstate and/or restore the plaintiffs to their posts in the University of Ilorin with all their rights, entitlements and other perquisites of their offices. The defendants are also hereby ordered to pay to the plaintiffs all their salaries and allowances from February 2001 till day of judgment and thenceforth except the two who are dead, whose salaries and allowances should cease on the date of death.
(Page 381 of the records)
The appellants, being dissatisfied, filed an appeal against that judgment in this court. The appellants’ counsel’s brief of argument dated 21/2/06 was filed on the same day. A reply brief was also dated 5/4/06 and filed the same day. The respondents’ counsel’s brief dated 22/3/06 was filed the same day. The appellants’ counsel identified five issues for determination while the respondents’ counsel identified four issues for determination. I shall adopt the issues as couched by appellants’ counsel as they cover all the grounds of appeal and pertinent questions to be answered. I have however arranged them in sequential order as follows:
“1. Whether the trial court was right in assuming jurisdiction to entertain the case of the respondents and grant their claims when their case was caught by estoppel.
2. Whether the proceedings of the trial court is not a nullity in view of the death of two of the respondents during the pendency of the case and which death was to the court’s knowledge which still refused to strike out the names of the deceased respondents.
3. Whether the trial court was right in holding that the termination of the respondents appointments was wrongful, illegal, null and void, thereby invoking section 15 of the University of Ilorin Act.
4. Whether the trial court was not in error in ordering the reinstatement of 42 of the 44 respondents, when from available evidence their positions have been filled while a number of them were gainfully employed elsewhere.
5. Whether the trial court was right in ordering the payment of salaries and allowances of the respondents from February 2001 till the date of judgment and thereafter, having regard to the applicable laws and facts and circumstances of the case and in granting the other reliefs awarded to the respondents. ”
Issue One: Whether the trial court has the right in assuming jurisdiction to entertain the case of the respondents and grant their claims when their case was caught by estoppel.
Learned appellants’ counsel argued on this issue that the trial court was wrong in assuming jurisdiction when the subject matter of the case had been canvassed, agitated and resolved by a competent court which is the Industrial Arbitration Panel. He argued that following the termination of the respondents’ appointments, industrial action was threatened by ASUU against the Federal Government.
The threat necessitated a reference of a number of issues including the termination of the respondents’ appointments to the Industrial Arbitration Panel (IAP) which ruled that the termination were justified, legal and lawful. He submitted that this is a case of issue estoppel and that the learned trial Judge was wrong in holding that the cases before the IAP and the lower court were different in that the National ASUU and the Federal Government were the parties before the IAP and the issues there were different, whereas, the case before it only involved the appellants and respondents on record.
He submitted that the respondents are privies of the ASUU. He cited Balogun v. Adejobi (1995) 1 SCNJ 242 p. 264 at 265; (1993) 2 NWLR (Pt. 376) 131. He argued that the trial court was wrong to have refused to give effect to the award of the IAP because IAP is an inferior tribunal. The ASUU filed an action in exhibit D46 to effect the award.
He argued that since the IAP had made an award and made a pronouncement that the termination of the respondents’ appointments was justified then the issue had been resolved. He submitted that the issue cannot be re-opened or considered by any other court or tribunal including the trial court. He cited Fadiora v. Festus Gbadebo (1978) 3 SC 219 at 155 at 156.
Respondents’ counsel on the other hand argued that exhibit D40 shows that the parties at the IAP are different from the parties in this case. Furthermore, exhibit D38 – the award had been withdrawn by the Federal Government through the Ministry of Labour and that both the award and exhibit 38 have no probative value and are worth nothing. Exhibit D44 confirmed the withdrawal of the award. He submitted that the opinion of the learned trial Judge is right and that this case is not caught by issue estoppel. The learned trial Judge on this issue held thus –
“I have listened to both counsel on this point. I agree with the plaintiffs that the case before this court and the IAP are different. By virtue of exhibit D40A, it is clear that the parties are different. It is the Federal Government v. 17 Academic Staff Union of Universities whereas here case is between the 44 sacked lecturers and the University of Ilorin and 3 others. Issues are also different.”
When a plea of issue estoppel is raised by a defendant as in this case, it is to bar a party from re-litigating an issue conclusively decided in a previous suit in a later suit. See: Milad, Benue State v. O. P. Ulegede (2001) 10 SCNJ 43; (2001) 17 NWLR (Pt. 741) 194.
Thus, issues raised by the same parties or privies on the same subject matter and settled in a previous suit before a court of competent jurisdiction will not be entertained. See Chief Agbaka v. Chief Jeremiah Amadi (1998) 7 SCNJ 367, (1998) 11 NWLR (Pt.572) 16 SC; Ezekiel Adedayo v. Alh. Yakubu Babalola (1995) 7 SCNJ 306, (1995) 7 NWLR (Pt. 408) 383.
The finding in a suit which operates as estoppel should not be treated as if the case is being brought up for review on appeal. It is the duty of the court before whom it is brought to give effect to it, not depart from it or question its finality. See: Archbold Ebba v. Chief Warri Ogodo (2000) 6 SCNJ 100, (2000) 10 NWLR (Pt. 675) 387.
Estoppel by record inter partes includes issue estoppel which applies to points of law or facts and mixed law and facts. See Chief Sampson Okon Ito v. Chief Okon Udo Ekpe (2000) 2 SCNJ 91, (2000) 3 NWLR (Pt.650) 678.
The question here, is whether the appellants herein could use the proceedings and findings of the IAP as a shield against the suit brought by the respondents at the lower court.
It is important to note that the issues before the IAP were:
(a) Denial of rights of students to lectures since December 2002.
(b) Withholding of students examination result since March 2002.
(c) Insistence on reinstatement of 44 sacked lecturers of the University of Ilorin.
(d) Insistence on definite annual allocation to the Universities over the next five years.
In my view, the issues and parties at the IAP are quite different from the ones before the trial court. The case before the trial court was a case of master and servant and was initiated years before the case at the IAP which was between the Federal Government and National ASUU. The latter action was a trade dispute while the case at the trial court was not. The relevant consideration when issue estoppel is brought up, is the statements of claim of the parties in respect of the two cases. The claim of the respondents at the trial court was for declarations on points of law and mandatory orders compelling the appellants to do certain things which are outside the purview and powers of either the lAP or the National Industrial Court.
See Western Steel Works Ltd. v. Iron and Steel Workers (No.2) (1987) 1NWLR (Pt. 49) 284; Kalango v. Dokubo (2003) WRN Vo1. 16. pg. 32 at pg. 49. Thus the decision of the IAP which does not have the force of declarations, mandatory, injunctive or possessory orders in favour or against a party cannot form issue estoppel.
Moreover, where there is a submission that there is issue estoppel, there is need for the issues in the present case to be directly in issue in the previous suit relied upon, not collateral or incidental thereto. See: Ezewilhe Ikoku v. Reuben Ekeukwu (1995) 7 SCNJ 180, (1995) 7 NWLR (Pt. 410) 637 SC. From the exhibits tendered  at the trial court, the issue of the termination of appointment of the Ilorin lecturers was not the main issue decided at the IAP. By letter dated 31/3/04, ASUU objected to the award. By another letter exhibit D44 dated 21/8/04, the award was withdrawn by the Minister and the matter sent back to the IAP for reconsideration. The ASUU had appealed to the Federal High Court, Abuja against this administrative decision. In this case, there is evidence that the award been withdrawn by the Minister, whether this was done legally or not is quite another matter. In any event, the case of master and servant brought before the lower court was first in time. The amendment made by the appellants to their statement of defence bringing up the matter of issue estoppel was filed on 11th of December, 2003, more than two years after the cause of action in respect of this case arose. It cannot thus come within the definition of ‘previous decision’ on the issue. The IAP is not a court with concurrent or superior jurisdiction with the Federal High Court. It is in fact an inferior tribunal to which the Federal Government and the national body of the ASUU later resorted to settle their protracted dispute. My humble opinion is that the appellants cannot use whatever decision or consequence of the decision arrived at the 1AP as a retroactive bar to litigation by the respondents in the circumstances of this case. See Ikeni v. Efamo (2001) 5 SCNJ 144, (2001) 10 NWLR (Pt.720) 1; Ebba v. Ogodo (2000) 6 SCNJ 100, (2000) 10 NWLR (Pt. 675) 387. The 1st issue is resolved in favour of the respondents.
Issue 2: Whether the proceedings of the trial court is not a nullity in view of the death of two of the respondents during the pendency of the case and which death was to the court’s knowledge which still refused to strike out the names of the deceased respondents.
Mr. K. K. Eleja, Esq., appellants’ counsel argued that the court was informed of the death of the 29th and 3rd respondents both of whom died during the pendency of the suit. He argued that instead of the respondents’ counsel to file an application to have the names of the dead respondents struck out, he applied for and was granted an application for an order that the case should continue to be prosecuted in its present form and that the judgment of the court should be binding on the respondents including the widow of Dr. S. Ajayi, deceased. Learned appellants’ counsel submitted that the cause of action did not survive the deceased parties, since the rights claimed in the respondents’ writ and statement of claim were personal and peculiar to them. In other words, the cause of action did not survive any of the respondents. He cited Whyte v. Jack (1996) 2 NWLR (Pt.431) 407 at 422. He submitted that the failure of the respondents to make necessary rectification instead of the alternative sought before and obtained at the lower court is fatal to the case of the respondents at the trial court since the action was joint and initiated by the same single originating process. He also cited on this point, Ajayi v. Igbinoghene (2001) 15 NWLR (Pt. 735) p. 33 at p. 45-46 and Nzom v. Jinadu (1987) 1 NWLR (Pt.51) p. 533 at 533.
In reply to this, learned respondents’ counsel conceded that the 3rd respondent and 29th respondent died before the judgment at the lower court and that the 9th respondent had also died after the judgment at the lower court. He argued that an application was rightly filed to allow the case to proceed in its present form thus enabling the widow of the 29th plaintiff/respondent who had died to benefit from the successful outcome of the case. He argued that by the provisions of Regulation 11.3.0 to 11.5.2 on pages 65-66 of exhibit 81, the Revised Senior Staff Regulations of the University, the heirs of the deceased could benefit from a successful outcome of the case at the trial court. He argued that the dead respondents would be regarded as having been in the service of the University up till the date of their death so that their dependants would be entitled to collect their benefit and entitlements from the University. He referred to Regulation 11.3.1 of exhibit 81 which provides that-
“If a member of staff who has completed 10 or more years of continuous service dies in service, his registered next-of-kin or designated survivors shall be entitled to a sum equivalent to the deceased’s salary for one year as well as to the gratuity and pension such deceased member of staff would have been awarded had he retired on the date of his death.”
In this appeal, because of the existence of common questions of law, facts and series of transaction between the parties, there are 44 respondents who were plaintiffs at the lower court. This seems to be the conventional wisdom adopted in order to avoid multiplicity of actions and conflicts between claimants. This procedure is encouraged by the Supreme Court. See: Ige v. Farinde (1994) 7-8 SC pg. 284, (1994) 7 NWLR (Pt. 354) 42; Ayankoya v. Olukoya (1996) 2 SCNJ 292, (1996) 4 NWLR (Pt. 440) 1 SC. During the course of the proceedings at the lower court, two of the respondents died. Before this appeal was filed, one of them died. A dead party ceases to have legal personality from the time of his death. The action is terminated except where the cause of action survives the death of a party. Where the cause of action or right of appeal survives, it may be exercised by a living person. Eghologbin Oketie v. Olughor (1995) 4 NWLR (Pt.392) 655, (1995) 5 SCNJ 217; Momodu v. Momoh (1991) 2 SCNJ 15, (1991) 1NWLR (Pt. 169) 608 Sc. Any order made in favour of the dead after his demise is invalid. Generally, death of a sole party on record automatically divests the court of jurisdiction and brings the case to an end until other living persons are substituted. It is not a procedural irregularity or defect. It is a matter of jurisdiction.
Causes of action generally survive for the benefit of the estate of a deceased person except in actions for defamation, seduction, inducement of spouse. See Ogiugo v. Ogiugo (1999) 12 SCNJ 191; (1999) 4 NWLR (Pt. 638) 283. However, where orders are sought against or by a dead person which are personal to him, the action abates as the action would not survive him.
How do we determine whether in this case, the action survived the dead respondents. This is determined by whether or not there are people alive, privy in estate to the respondents who would acquire any right or obligation as a result of the outcome of the litigation.
See Joseph Adebayo Osagunna v. Mil. Gov., Ekiti State (2001) 4 SCNJ 30, (2001) 8 NWLR (Pt.714) 200.
To determine this, we must look at the statement of claim and the reliefs sought by the respondents at the lower court. Each head of the claim constitutes a separate cause of action.
All the declaratory orders sought by the respondents were personal to them. The only one which affects their heirs or legal representative is leg 21(j) of their claim. It is stated as follows:
“j. An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts in the University of Ilorin with all their rights, entitlements and other perquisites of their offices. An order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the date of judgment and thenceforth. ”
(Italics mine)
The second leg of the above claim is in essence a claim for arrears of salary if the termination of their appointment were set aside.
The significance of their termination of appointment being set aside would be that to all intents and purposes they were still working for the appellants at the time of their death and thus entitled to their salaries, gratuities, etc as provided under Regulation 11.3.1 of exhibit 81. In essence, even though they died, they would have died as officers of the University whose death benefits would enure to the benefit of their heirs and personal representatives. Thus, the second leg of claim 21(j) can be said to survive the death of the three respondents.
By motion on notice under the Federal High Court (Civil Procedure) Rules, learned respondents’ counsel applied to join the wife of the 29th plaintiff to continue prosecution of the case or alternatively that the case be continued in its present form at the instance of the plaintiffs and the legal representative of the deceased be informed by the court of the outcome of the case which shall be binding on such legal representative.
The learned trial Judge ruled as follows on the motion on notice brought by the respondents’ counsel –
“Court – I have listened to both counsel, I’m of the opinion that this action both personal or non personal, if the case succeeds what accrues to 43rd plaintiffs would be property, furthermore, if action succeeds prayer asked for would enable the personal representative be entitled to pension and gratuity that the success of the case would have guaranteed, in the light of this the alternative prayer before the court is ordered as prayed. ”
See pg. 292 of the record of proceedings.
Grounds 1,8 & 9 of the grounds of appeal on which this issue is founded is essentially challenging the above ruling of the lower court made on 15/12/2004.
The relevant question now is whether or not the Order 12 r. 3 of the Federal High Court (Civil Procedure) Rules, 2000 is applicable to this case and was appropriately utilised at the lower court.
The relevant rules under Order 12 of the Federal High Court (Civil Procedure) Rules, 2000 are as follows:
Order 12. r. 30 provides that:
“The death of plaintiff or defendant shall not cause the suit to abate if the cause of action survives. ”
While Order 12 r. 31 states that:
“If there are two or more plaintiffs or defendants, and one of them dies, and if the cause of action survives the surviving plaintiff or plaintiffs The suit shall proceed at the instance of the surviving plaintiff or plaintiffs’a6”
Order 12 rule 32(1) of the said rules of court provides that:
“If there are two or more plaintiffs and one of them dies, and if the cause of action does not survive to the surviving plaintiff or plaintiffs alone, but survives to them and the legal representative of the deceased plaintiff jointly, the court may, on the application of the legal representative of the deceased plaintiff, enter the name of the legal representative in the suit in the place of the deceased plaintiff and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and the legal representative of the deceased plaintiff.”
Order 12 r. 32(2) provides that:
“If no application is made to the court by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by the judgment given in the suit, in the manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the court otherwise so directs.
The combined effect of Order 12 r. 30, Or. 12 r. 31, Or. 12 r.
32(1) and Or. 12 r. 32(2) is that a cause of action may survive the death of a party especially where there is more than one litigant on each side. In such a case, the name of the legal representative of the deceased may on application, be substituted for the name of the deceased and the suit shall proceed at the instance of the surviving plaintiffs. Also, where the legal representative of the deceased is given notice to appear, he shall be deemed interested in and be bound by the outcome of the trial.
The names of the 3rd and 29th respondents who were dead should have been struck out of the list of parties on record by the lower court and an order made that the legal representatives should appear and be bound by the outcome of the proceedings. There is no provision in the Federal High Court Rules for the names of non-juristic persons to continue to be parties on record in the lower court. There is no provision in the rules that the names of deceased parties on record should not be struck out and that the trial should proceed in its present form (as applied for by the respondents’ counsel at the lower court). The intention of Or. 12 r. 32(2) is that where the legal representative of a deceased plaintiff fails to apply to be substituted, the surviving co-plaintiffs may apply to court that such  a person be notified officially and such legal representative who would be deemed to be an interested party shall be bound by the outcome of the trial.
Thus, the application that the trial should “proceed in its present form” made by respondents’ counsel in the lower court was wrong and the order given that the case be “continued in its present form” with names of deceased person remaining on the record was wrong.
See page 292 of the record. The name of Mrs. Ajayi should have been substituted for that of her late husband 29th respondent. The legal representative of the 3rd respondent should have been informed after his name had been struck out. Such legal representative would be given notice that he/she is deemed an interested party who may apply to be joined.
Where the cause of action is a joint one and one of the several plaintiffs dies, with that cause of action surviving to the other plaintiffs, the surviving plaintiffs may continue the action alone without adding the personal representative of the deceased co-plaintiff. See Smith v. London & North Western Railway (1853) & B 69. In this case on appeal even though the plaintiffs filed the action together, the cause of action accrued to them severally. In such an event, the personal representative of the deceased co-plaintiff has to replace that deceased co-plaintiff and continue the proceedings with the other plaintiffs. See Amison v. Smith (1889) 40 Ch. D 567.
The personal representatives may apply to be added in the suit, or the other plaintiffs or the defendants may make an application to that effect, asking for the order of the court for the personal representative, to be added and for the proceedings to be carried on and continued with him as the new party.
Every judicial precedent is authority for the legal principles it decides based on the facts placed before the court. Ajayi v. Igbinoghene supra interpreted Order 11 r. 34(1) of the High Court (Civil Procedure) Rules, 1988 applicable to Edo State, the provisions of which are quite different from the Federal High Court (Civil Procedure) Rules, 2000. In Whyte v. Jack, supra the Court of Appeal held that the declaratory orders made against the 6th appellant did not survive his death. He had been restrained by the lower court from parading himself as a paramount chief and declaratory orders were made against his purported selection and installation as paramount chief. The Court of Appeal refused to make an order of substitution because he died before the appeal was heard since the orders of the lower court were personal to him.
The argument of appellants’ counsel is that the mistake made by the lower court in allowing the case to continue “in its present form” without striking out the names of the deceased respondents vitiates the whole proceedings at the lower court. I humbly disagree with that view. The action was brought jointly and severally. The only effect the wrong procedure adopted at the lower court would have is that the action had abated in respect of the two deceased respondents who were granted orders as non-juristic persons.
The validity of the proceedings at the lower court in respect of the surviving plaintiffs is in no way affected. See Or. 12 r. 31 quoted above. I am of the firm view that the whole action at the lower court had not been rendered incompetent because of the failure of the surviving plaintiffs to cause the names of the deceased co-plaintiffs to be struck out or substituted. Only the orders made in respect of the deceased plaintiffs/respondents on record are unenforceable and invalid. The 2nd issue is resolved in favour of the respondents.
Issue three: Whether the trial court was right in holding that the termination of the respondents’ appointment was wrongful, illegal, null and void thereby invoking S. 15 of the University of Ilorin Act.
On this issue, learned appellants’ counsel argued that the respondents’ respective letters of appointments with similar clauses were tendered as exhibits 2-43. These exhibits were memoranda as to terms of appointment and were an integral part of the contract of employment between the parties. The memoranda of appointment of the respondents containing similar clauses were admitted as exhibits 180-217. He submitted that the intention of the parties from clauses 9 and 10 of exhibit 180 was to endow one another with the discretion to bring the relationship to an end before the employee reaches the mandatory age of retirement. He submitted that the parties are bound by the terms of their contract reduced to writing and the court cannot curtail the contracting powers of the parties and that a party may waive his legal rights. He cited Ariori v. Elemo (1983) 1 SCNLR page 1 at p. 9. He submitted that the respondent having signed clauses 1 – 10 of the memorandum of terms of appointment, they had waived their rights under the provisions of S. 15 of the Unilorin Act. He also cited Mobil Producing (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) p. 1 at p. 37; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) p. 203 at 263. He submitted that the court cannot go outside the exhibits 83-119 the letters of termination to decipher the reasons why the respondents’ appointments were terminated. He cited Idoniboye v. NNPC (2003) 2 NWLR (Pt. 805) p. 589 at p. 600 and 620. He argued that there was no basis for the invocation of S. 15 of the Unilorin Act since their letters of termination of appointment clearly stated that their services were no longer required.
He further submitted that S. 15 of the Unilorin Act provides for two methods of termination of appointment of an academic staff.
One method under S. 15(1) and another method under S. 15(3) of the Act. He argued that where the council chooses to terminate academic staff employment under S. 15(3), it need not fall back or take the steps set out in S. 15(1). He submitted that the court should hold that S. 15(3) of the Unilorin Act was relied upon in terminating the appointment of the respondents and it was thus proper and lawful.
He cited Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) p. 290 at 302, or (1999) 6 SCNJ 295 and Esiaga v. Unical (2004) 7 NWLR (Pt. 872) p. 366 at 387.
Learned respondents’ counsel in reply to this issue argued that as lecturers of the University, there is no dispute about the fact that the respondents’ appointments were protected by statute, that is S. 15 of the Unilorin Act, Cap. 455, Laws of the Federation, 1990 and Chapter 8 of exhibit 81 (The Revised Senior Staff Regulations) made pursuant to the said Act. He argued this issue on two legs. The 1st leg of his argument was that the respondents’ appointment with the University being with statutory flavour i.e. governed by the Unilorin Act, the appellants could not terminate such appointment “at will” as they claimed to do in this case. He submitted that the reliance of the appellants on exhibits 181-217 memo of appointment and exhibits 2-41 letters of appointment showed that the appellants treated the respondents as ordinary servants who at common law can be hired and fired at will by the master. He submitted that the learned trial Judge was right in referring to Regulation 1.1.3 page 1 of exhibit 81 and to have concluded that exhibits 2-41 and exhibits 180-212 are inferior and subject to the exhibit 81 and the Unilorin Act. He cited Bamgboye v. Unilorin (1999) 6 SCNJ 295 at 305; (1999) 10 NWLR (Pt. 622) 290; Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) pg. 599 at  pg. 621; Eperokun v. Unilag (1986) 4 NWLR (Pt. 34) pg. 162 or (1986) 7 SC (Pt. 1) pg. 106 to argue the position that the respondents’ employment had statutory flavour with permanent and pensionable rights and their appointments can only be terminated in accordance with the statute. He submitted that exhibits 2-41 and exhibits 180-217 being inconsistent with the Unilorin Act should be declared null and void.
Respondents’ counsel also submitted that the argument of appellants’ counsel that the respondents had waived their rights under the Unilorin Act is a fallacy.
The 2nd leg of his submission on this issue is that the learned trial Judge rightly held that appellants sacked the respondents for misconduct without complying with S. 15 of the Unilorin Act. Page 277 of the record.
He argued that disciplinary proceedings should have been conducted to determine the matter. He argued that there is abundant evidence on the record of the humiliation and harassment to which the respondents were subjected. Before exhibits 82-119 the letter of cessation of appointment was issued, the respondents were not allowed into the campuses, their offices or even the mosques or churches within the campuses. They were therefore not in a position to receive exhibits 218-261 which gave them ultimatum to return to work. See page 32 of the record. He argued that pages 208-210 of the record and exhibits 264 and 179 also show the level of harassment meted out by the appellants against the respondents before their appointments were terminated. He submitted that the appellants had failed to substantiate their charges of misconduct against the respondent since the instructions purportedly flouted were never brought to the notice of the respondents. He cited Dr. Obayan v. Unilorin (2005) 18 WRN 77 at Ill; (2005) 15 NWLR (Pt. 947) 123.
He submitted also that the appellants have set up a new case on appeal from their case at the lower court. The appellants’ case at the lower court was that the respondents were not sacked on disciplinary grounds and that the appellants had a right under their contract of employment to terminate their employment after due notice was given to them. The appellants never made a case at the lower court that the respondents appointments are terminated for “good cause” under S. 15(3) of the Unilorin Act. He urged this court to discountenance the argument of learned appellants’ counsel on S. 15(3) of the Unilorin Act because they cannot set up a different or new case from that which they argued at the lower court. He cited Peter v. Jackson (2002) FWLR (Pt.113) at 388; Akuneziri v. Okenwa  (2000) 12 SCNJ 242 at 267; (2000) 15 NWLR (Pt. 691) 526; In Car v. Bolex (2001) 5 SCNJ 460 at 472; Kwajaffa v. Bank of the North (2004) 5 SCNJ 121 at 136-7, (2004) 13 NWLR (Pt.889) 146.
The learned trial Judge on this issue held at page 377 of the record –
“I have considered the positions of the two counsel on this issue. 1have already held that it is proper for court to look into the letters of appointments, the memorandum as to terms of appointments, the regulations of conditions of senior staff and the University of Ilorin Act itself if need be, as the letter of appointment itself subjects itself to the senior staff regulations and University of Ilorin Act.
In my opinion, this is not just giving 3 months notice or payment of 3 months salary stipulated in the letter of appointment, there is a cause for the termination which I agree with the plaintiffs is misconduct. My position on this is strengthened by the fact that the letter of termination was dated 22/5/2005 before the directive that the plaintiffs should return to work expires. In my opinion, a situation has been enacted which should give room for investigation under the Chapter 8 of the Senior Staff Regulations and section 15(1) of the University of Ilorin Act, Cap. 455 which contains the same provision wordfor word….
I make bold to say that this provision has not been complied with …
In my opinion, in this matter, the procedure was not followed and this renders the termination unlawful, invalid, null and void. ”
I will first address the point raised by appellants’ counsel that the respondents by signing the various memoranda of employment had at the material time of entering employment with the appellants severally waived their rights under the Unilorin Act. I am of the opinion that appellants’ counsel’s opinion is not the law in this regard.
Parties cannot by conduct or consent alter the Constitution or statute.Where the parties adopt a procedure or a course of action not authorized by law or specifically prohibited by it, the court is under a duty to reject such a course of action. See: Oviasu v. Oviasu (1973) 11SC 315; Nig-Arab Bankv. Barri Engineering Ltd. (1995) 8 NWLR (Pt.413) p. 257; Menakaya v. Menakaya (2001) 16 NWLR (Pt.738) p. 203 at 252. When it is argued that a statutory provision has been waived, it has to be considered whether the statute confers purely personal or individual rights which may be waived or whether the statutory provision confers rights of a public nature as a matter of public policy. If it is the latter, the provision of such statute cannot be waived as no one is permitted to contract out of or waive a rule of public or constitutional policy. See Ogbonna v. A.-G., Imo State (1992) 1 NWLR (Pt. 220) p. 647.
The inclusion of S. 15 in the Unilorin Act is to my mind a proactive attempt by the makers of that law to further particularize the provisions of S. 36 of the 1999 Constitution which makes it a public policy for everyone to receive fair hearing in all situations where their rights are at stake. No action or contractual agreement against the spirit of the statute under which the contract was made or against public policy can be allowed to stand. See: Menakaya v. Menakaya (supra).
Exhibits 180-217 contained similar provisions. The germain portion which runs across all the exhibits is quoted from exhibit 180. They are clauses 9 and 10 which state as follows:
“9. The professor/reader shall not terminate his/her appointment other than on the 30th September in any year, after having given six months’ notice in writing of his/her intention to do so, unless the consent of the University be otherwise obtained.
10. Subject to the provisions of paragraph 11 below the University shall not terminate the appointment of the professor/reader without having given six months’ notice in writing of its intention to do so, or having tendered payment of six months’ salary in lieu of notice. In the case of notice already given, the University may tender payment of the amount of salary applicable to the period of notice unexpired and upon its doing so, the appointment of the professor/reader shall terminate immediately.”
Both the Unilorin Act and Revised Senior Staff Regulation exhibit 81 made pursuant to it do not contain the provisions for unilateral termination of appointment by either party upon notice being given. In fact, the introductory/preliminary section of the regulation exhibit 81, is to the effect that all contracts made between the University Council and its senior staff should contain a provision that the terms and conditions therein are subject to the provisions of the Act, the statutes and regulations of the University. Clause 1.1.3 states as follows –
“A member of staff shall hold office on such terms and conditions of services as may be set out in any contract in writing between him and the University such contract being signed on behalf of the University by the Registrar or by such other persons as may be authorized for that purpose by the University, and any such contract shall contain or be deemed to contain a provision that the terms and conditions therein specified are subject to the provisions of the Act, the statutes and regulations of the University. ”
Thus, the respondents cannot waive their constitutional rights to fair hearing, moreso, when there is allegation of misconduct, whatever agreement they have made must conform to the provisions of the Unilorin Act and regulations made pursuant to it. This aspect of the case must be distinguished from the finding of the Supreme Court in Olaniyan v. Unilag supra which held that the relevant clauses in the memorandum of appointment in that case, were not inconsistent with the Constitution and the statute because they contained the following sentence. “Before any removal of the appointee is made, the appointee shall have opportunity of replying to the grounds alleged against him. ” There is no similar provision in any of exhibits 180-217.
Olaniyan v. Unilag is a case with facts similar to the facts of this case. Therein University authorities sought to terminate the appointments of senior academic staff by the mere issue of six months’ notice and payment of salary in lieu of the said notice. They refused to state that the termination of appointment was ignited by the recommendations of the visitation panel before whom the appellants were never brought to defend themselves. S. 15 of the Unilorin Act is in pari materia with S. 17 of the Unilag Act the effect of which was the fulcrum of the case in Olaniyan v. Unilag.
The Justices of the Supreme Court in Olaniyan v. Unilag were unanimous in holding that where there was no imputation of misconduct, the University could terminate the employment of their senior staff after the requisite notice. However, where there is any allegation or imputation of misconduct, the provisions of S. 17 of the Unilag Act and regulations made thereunder must be followed. See the lead judgment of Oputa, JSC in Olaniyan v. Unilag at page 621. Also Obaseki, JSC, in Eperokun v. Unilag held on page 181 of the Supreme Court report:
“It cannot be silent on the misconduct and use it as a ground for removing him. Section 17(1) of the Act makes it mandatory on the council to give notice of those reasons to the person in question. Thus, failure to give reasons for the termination when there are circumstances loudly proclaiming the reasons affords no sanctuary. ”
“At page 618 of the NWLR in Olaniyan:'” case, Oputa. JSC held that –
” … The point being made here is that both the Regulations governing service in the University especially its paragraph 15 dealing with termination by the University and each memorandum as to the terms of appointment of each appellant especially Clauses 6 and 7 thereof must be consistent with the powers expressly given to the University and the University Council by section 17 of the Act No.3 of 1967 otherwise those regulations and the memoranda will be inconsistent with the source of their power and therefore, null and void. ”
The learned Justice Oputa held further at paragraphs G-H of page 618 of the same law report of the same case that:
” … This case must therefore, of necessity, revolve around section 17of the Act and cannot be determined without reference to section 17which is the only section that call give life and validity to the Regulations and E the agreements exhibits P1, P 18 and P 12A. It is therefore a very material error in law to decide the termination of the appointments of the appellants without reference to section 17 of the Act No.3 of 1967. ”
The 3rd and 4th appellants acting under the hands of the 1st and 2nd appellants are creations of the Unilorin Act and they must not act except within the four walls of the statute creating their positions. Any agreement outside the statute is ultra vires the statute.
The question here, is whether or not in the circumstances of this case, the appellants could act outside the provision of the Unilorin Act. As said earlier, if there was no allegation or imputation of misconduct, they could so act, but if there was, they were bound to act within the stipulations of S. 15 of the Unilorin Act.
The provisions of S. 15(1) of the Unilorin Act states as follows –
“15(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University, other than the vice-chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall;
(a) give notice of those reasons to the person in question;
(b) afford him an opportunity of making representations in person on the matter to the council; and
(c) if he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements –
(i) for a joint committee of the council and the senate to investigate the matter and to report on it to the council, and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council. ”
The contents of the letters written by the appellants to the respondents headed “cessation of appointment” exhibits 82-119 dated the same day and all substantially state as follows:
” … following council’s directive that you should sign the appropriate register and return to work by Tuesday 22nd May, 2001, it has been observed that as at Tuesday 22nd May, 2001, you have still not complied with Council’s directives to the effect that you sign-in and thereafter return to duty. ”
In the light of the above, I am to inform you that the University does not require your services any longer in tune with your letter of appointment ref … ”
(Italics mine)
The appellants’ case at the lower court was that they terminated the appointments of the respondent simplicita under the terms of the memorandum of agreement and that there was no allegation of misconduct. The italicised portion of the letters as quoted above shows clearly that the respondents were accused of non-compliance with Council’s directives. If that is not an allegation of misconduct, I do not know what is. Failure to obey direct instructions of your employer to do or refrain from doing something is surely an act of misconduct. That was the finding of the trial court and it only stands to reason. The defence of the respondents in court to the allegation was that they never received the instructions to return to work or sign any registers because they were not allowed into their offices where they could get their mails. That is not relevant. What is relevant in the circumstances of this case is that a letter with an ultimatum was supposedly written to the respondents by the appellants to go back to work. What is even more relevant is that during the period of this ultimatum, it was known to the appellants that the respondents as members of ASUU were on local then national strike. See exhibit 120 dated 3rd April, 2001 written by ASUU Unilorin Chapter to the 1st appellant and exhibit 121 reply written by the 2nd appellant to the Chairman ASUU dated 4th April. These letters showed the different position of the parties in relation to the ongoing strike action. Let us assume that the ultimatum was not obeyed by the respondents. The appellants promptly terminated the respondents’ appointment on the date the ultimatum was supposed to expire.
The return to duty directives were admitted as exhibits 218-261.
It was in no way a query nor can it be said to indicate the initiation of disciplinary proceedings. The active portions are exactly the same and all were dated 16th May, 2001. Exhibit 218 is stated below:
“You will note that in the last four months you have not discharged your official academic responsibilities. You will also note that in the last fourteen months or so, you have found one reason or the other not to discharge your official duties for up to a total period of six months. While deliberating on this serious matter, Council at its meeting held on 15th May, 2001 expressed grave concern on the implications at these lapses, on your part, on the academic responsibilities of the University and the education of our students.
After exhaustive deliberations, Council has, therefore, directed that you should sign the appropriate register and return to work by Tuesday, 22nd May, 2001. By failure to comply with these directives, you be deemed to have voluntarily terminated your appointment. Above is the directive of Council for your due compliance, please. ”
(Italics mine)
When the mandatory procedure set out by statute is not complied with, any disciplinary action taken by the appellants against the respondents must be declared null and void. I agree with the learned trial Judge that it is wrong for the appellants to argue that the fact that the parties signed the memorandum of agreement makes their agreement a mere matter of master and servant under common law.
In Bamigboye v. Unilorin supra where the purport and implication of S. 15 of the Unilorin Act was exhaustively discussed and decided upon, Gnu, JSC in the leading judgment in Bamigboye v. Unilorin held obiter at page 316 of the SCNJ report that-
“Section 15 of the University of Ilorin Act confers on the University staff a “special status” over and above the normal contractual relationship of master and servant. Consequently, the only way to terminate such a contract of service with “statutory flavour” is to adhere strictly to the procedure laid down in the statute i.e. in the case in hand, the University of Ilorin Act.”
At no time were the respondents called to defend themselves in accordance with S. 15(1) of the Unilorin Act. To my mind, in public employment, where the employee is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should be in the interest of justice a presumption that the employment cannot be terminated by mere notice, but should be terminated only for misconduct or other specified reasons. To terminate an employee on a permanent status and deprive him of all the pension and other rights offered by the express terms of the contract, is not a right which the parties must have intended the master to have and one which no reasonable person could have contemplated he would claim. When a misconduct has occurred, the provisions of S. 15 of the Unilorin Act must be followed to the letter. In this case, the provisions were sidetracked, while the decision to terminate the respondents’ appointments was taken and implemented by the appellants. The learned trial Judge was right in coming to the conclusion that the appellants wrongfully terminated the respondents appointments without complying with the provisions of S. 15(1) of the Unilorin Act.
In the circumstances, the appellants cannot be allowed to ignore the law that created them and hide behind the letters of appointment and to terminate the appointments of the respondents without due process as outlined by S. 15 of the Unilorin Act.
Another sub-issue raised by appellants’ counsel under this issue is that the appellants can under S. 15(3) of the Unilorin Act unilaterally terminate the appointments of the respondents. He had argued that since S. 15(3) of the Unilorin Act provides that the respondents’ appointment could be terminated for “good, cause”, their employment were properly terminated. He submitted that it is only in relation to S. 15(1) dealing with misconduct that the disciplinary procedure set out in 15(1)(a), (b), (c)(i) & (ii) would be applicable. He argued that S. 15(3) does not talk about misconduct but deals with instances stipulated by S. 15(3)(a) – (d) thus creating a separate or another method of bringing a contract of employment under S. 15 of the Unilorin Act to an end.
Learned respondents’ counsel’s answer to this is that the appellants’ counsel is raising a new issue entirely which was not part of their case at the lower court. He argued that the case made out by the appellants throughout at the lower court was that the appellants terminated the respondent’s appointment not on disciplinary grounds nor any ground at all but because their services were no longer required. They never canvassed “good cause” at the trial. He urged the court to ignore the appellants’ counsel’s argument on this point. He cited Babalola v. The State (1989) 4 NWLR (Pt.115) 264; Akuneziri v. Okenwa (2000) 12 SCNJ 242 at 267; (2000) 15 NWLR (Pt. 691) 526.
I quite agree with respondents’ counsel. There is no decision on this issue by the learned trial court because it was never raised before him. It cannot now be raised here. See: Akaneziri v. Okenwa (supra) where the Supreme Court condemned a party arguing on appeal, a case diametrically opposed to the case they argued at the lower court. The case of the appellants at the lower court was that the respondents were sacked because their services were no longer required. They gave no reason. They have now turned around here to argue that they were sacked under S. 15(3) for “good cause”. In any event it is incompetent to argue the case on appeal other than on the premises it was argued at the lower court. See: Societe Generale France v. Societe Generale Nig. (1997) 4 SCNJ 60.
In Kwajaffa v. Bank of the North (2004) 5 SCNJ 121 at 136/375; (2004) 13 NWLR (Pt.889) 146 the Supreme Court per Musdapher, JSC held that –
“The case of the appellant as argued in the Court of Appeal must be consistent with the case on appeal to the Supreme Court. The Supreme Court will not allow a party to put up a different case from the case it had put up at the Court of Appeal without leave. ”
No leave has been sought or granted in this court for the appellant to introduce this new issue of law. It is therefore incompetent.
Be that as it may, the argument itself is completely misconceived.
“5.15.(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by council; and for the purposes of this subsection “good cause” means –
(a) conviction for any offence which the council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or
(b) any physical or mental incapacity which the council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or
(c) conduct of a scandalous or other disgraceful nature which the council considers to be such as to render the person concerned unfit to continue to hold his office; or
(d) conduct which the council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service. ”
Inclusive in the principles governing construction of statutes is the need for court to adopt a purposive and creative approach. Courts must interpret statutes by implication to give effect to the true intention of the law makers to fill gaps in legislation by stating in words the intention of the lawmaker. That is, a liberal, broad and wide rather than narrow interpretation is desirable as a rule. A section of a statute must be interpreted as a whole not in exclusion of the various subsections. There is also the need to ensure that the rights bestowed on citizens by statute are protected. See PDP v. INEC (1999) 7 SCNJ 297; (1999) 11 NWLR (Pt. 626) 200.
The question of whether S. 15(1) and S. 15(3) were inclusive or exclusive of each other was answered by the Supreme Court in Bamigboye v. Unilorin supra at page 355 of SCNJ or pages 352-353 of NWLR where Ayoola, JSC said emphatically that even under S. 15(3) of the Unilorin Act, the appellants were obliged to act judicially in determining the fate of the respondents. S. 15(1) states the step by step of the disciplinary measures to be taken in cases of general misconduct. S. 15(3) states examples of specific forms of misconduct or situations where the disciplinary measures under S. 15(1) would be set in motion. Thus, the provisions of S. 15 of the Unilorin Act are mutually inclusive and not severally exclusive of each other.
To put matters beyond doubt, at page 648 paragraphs D-E of the Law Report of Olaniyan’s case supra, the Supreme Court per Eso, JSC held that –
” … The termination of the appointment of the appellants by six months notice provided for by the contract of service is subject to the provision about misconduct stated above.
In other effects, both under the ordinary terms of his employment and by the statute which governs the University itself, the appellants are protected in the terms of their employment from being sent out of the University without being heard as to allegations of fraud, misconduct, gross inefficiency, willful refusal to fulfill his duties or incapability by reasons of inefficiency or infirmity either of mind or body. ”
The full court of seven Justices of the Supreme Court in Eperokun v. Unilag (supra) held unanimously per Irikefe, CJN reading the leading judgment:
“The appellants were entitled to be heard, at least this was the view taken in Ridge v. Baldwin (1964) A. C. p. 42 on which the learned Judge had sought to rely. The conduciveness of the atmosphere within the University at the time for a hearing is an irrelevant matter, the law intended and the courts should ensure that entrenched rights are not tossed carelessly out of the window.
In my view, constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the spectre of misconduct hanging over his head without being given an opportunity of clearing his name. ”
(See page 122 of the SC report)
My humble opinion is that in view of the foregoing, there is no way the termination of the respondents’ appointments in this case can be lawful without recourse to section 15(1) of the Unilorin Act, Cap. 455, Laws of the Federation of Nigeria, 1990. The matter cannot be limited to the letters of appointments and memoranda as claimed by the appellants. This is because the right exercised to summarily terminate the respondents’ appointments by payments of salaries in lieu of notice which the appellants claim they have done by exhibits 2-41 and 180-217 will make those exhibits to be inconsistent with section 15 of Unilorin Act and therefore void.
Issue Four: whether the trial court was not in error in ordering the reinstatement of 42 out of 44 respondents, when from available evidence, their positions have been filled while a number of them were gainfully employed elsewhere.
Learned appellants’ counsel on this issue argued that there was evidence at the lower court wherein at page 332 of the record, the appellants had filled the vacancies created by the  termination of appointment of the respondents. This evidence was given by DW2 who tendered exhibits D45a and D45b. He submitted that this intervening factor i.e. the filling of the posts held by the respondent should have prevented the lower court from making an order of re-instatement of the 42 respondents. He cited Isievwore v. NEPA (2002) 13 NWLR (Pt. 7 84) p. 417 at 436; Igbe v. Gov., Bendel State (1983) 1 SNCLR 73 at 88. He submitted further that even if the court found the termination of appointment of the respondents wrongful, it cannot make an order of reinstatement in the circumstances of this case. He distinguished the case at hand from the cases of Teaching Hospital v. Nnoli (1994) 10 SCNJ 71 at 85-87; (1992) 6 NWLR (Pt. 250) 752; Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) p. 599; Eperokun v. Unilag (1986) 4 NWLR (Pt. 34) p. 162.
He urged the court to disregard those cases because the facts are not the same as the facts of this case. In those cases, vacancies created were few and had not been filled. He urged the court not to make an order in vain. He cited Olatunbosun v. N.I.S.E.R. Council (1986) 3 NWLR (Pt. 29) p. 435.
Learned respondents’ counsel argued that having properly nullified and set aside the appellants’ termination of the respondents’ appointment, the learned trial Judge was right in granting the order of reinstatement. The trial court had found that the employment had statutory flavour and in such a case the order of reinstatement was most appropriate in the circumstances of this case. He cited Nnoli v. UNTH (1994) 10 SCNJ 71 at 75, 91-92; (1994) 8 NWLR (Pt. 363) 376; Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) p. 599 at 612, 613, 622-623; Eperokun v. Unilag (1986) 4 NWLR (Pt. 34) at p. 162, 165 & 201; Bamgboye v. Unilorin (1999) 6 SCNJ 296 at 316; (1999) 10NWLR (Pt. 622) 290; Iderima v. Rivers State CSC (2005) 7 SCNJ 493 at 504; (2005) 16 NWLR (Pt. 951) 378. He argued that the appellants’ terminated the employment of the respondents during the period of national crisis and disagreement between the
respondents’ union ASUU and the Federal Government. The Federal Government by exhibit 122 instructed the appellants to reinstate the respondents but the appellants willfully refused to do so while University of Nigeria, Nsukka authorities obeyed the Federal Government. The strike ended with the agreement that no party should be victimized. The appellants had no reason and no right to replace the respondents.
Respondents’ counsel urged this court to take note that the respondents were unlawfully sacked by the appellants on 22/5/2001 and by August, 2001 the respondents were in court to challenge the action of the appellants. After almost 4 years of the commencement of the case and the respondents as plaintiffs had closed their case, the appellants by motion dated 8/3/2005 raised the issue of “replacement” of the respondents by new employees. He argued that this was clearly an attempt to “tie” the hands of the lower court by producing evidence of a list of staff exhibits D45a, D45b who had purportedly been employed to replace the respondents. He urged the court to reject and condemn this type of arm twisting trick. He cited Jombo v. PE.F.M.B. (2005) 7 SCNJ 257 at 266; (2005) 14 NWLR (Pt. 945) 443; Garba v. FCSC (1988) 1 NWLR (Pt. 71) p.
449 at 621. He submitted that the doctrine of lis pendens is applicable in this case to prevent the appellants from doing anything to frustrate the case of the respondents at the lower court.
Anything they do in that regard would be to their own peril as the hands of the courts cannot be fettered. He cited Dan Jumbo v. Dan Jumbo (1999) 7 SCNJ 112 at 122 and Ojukwu v. Lagos State (1985) 2 NWLR (Pt.10) p. 806 at 809.
He further argued that exhibit D45a and D45b did not at all show credible evidence to prove that in fact the 44 lecturers were replaced. He argued that the appellants did not tender the letters of appointment of the newly appointee staff to show that they actually replaced the positions held by the sacked lecturers. The appellants failed to show how and who had specifically replaced each of the respondents. He argued that there is evidence on pages 203 and 338 of the record that some of the respondents who are medical experts and consultants have remained in their positions at the University of Ilorin Teaching Hospital, an associate institute of the University of Ilorin, since they were sacked in 2001 till date. This is because some of them like 5th, 24th and 25th respondents are medical experts and consultants of high profile whose positions cannot be easily filled.
He argued that at page 388 of the record DW2 admitted that the 6th respondent was the only Professor of Surgery at the University and his position is yet to be filed. Nine professors were sacked, only one professor was employed. He submitted that there is evidence on record to show that the purported replacement of the respondents was a hoax perpetrated by the appellant at the lower court which the trial Judge rightly rejected.
The trial court on this issue held as follows:
“I have considered the two positions. I agree with the plaintiffs that once termination is held unlawful, reinstatement is automatic. That is the Supreme Court’s position in Eperokun ‘s case supra as well as Olaniyan ‘s case (1985) 2 NWLR (Pt. 9) 599. In the case of University of Nigeria Teaching Hospital v. Nnoli (1994) 10 SCNJ 71 at 75; (1992) 6 NWLR (Pt. 250) 752, r. 13
– 15, the Supreme Court held as follows –
‘Once the retirement was declared null and void, that is to say that the decision retiring the respondents from the services of the hospital was declared to be no decision the other reliefs could not be denied her. It is as if she was never retired from the services … In other words she is entitled to be restored to her status quo ante.’
In Eperokun ‘s case supra, the Supreme Court restored the appellants to their previous position in spite of the fact many of them had secured alternative employment. In Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 reinstatement was refused because the appellant was only retired from the service and was held entitled to his pension and gratuity benefits.
In the present case, DW1 testified during cross examination that there is room for about 600 academic staff in the University whereas the list in exhibit D5, of the positions already filled is just 87.
The defendants also alleged that the plaintiffs on their own stopped working before the termination of appointment and would the before be inequitable to take them back. It is may decision on this point that there is no evidence that the plaintiffs were given a hearing on this point before the termination of their appointments.
(Pages 380-381 of the records)
The thrust of the appellants’ counsel’s argument on this issue is that the respondents cannot be reinstated to their former positions because their positions had been filed. The issue of whether their positions were filed is a matter of fact which must be proved by evidence. As seen above, the learned trial Judge made no specific finding of the fact on this aspect of the case. Learned respondents’ counsel has made it a serious point of contention in his argument on this issue. He who asserts must prove. The onus was on the appellants who brought up this point of fact as an issue to prove same on a balance of probabilities at the lower court. Were the appellants actually able to prove at the lower court that the positions from which the respondents had been removed had been filled by them? I think not. I have closely considered the evidence ofDW2 on page 332-338 of the record of proceedings when exhibits D45a and D45b were tendered. It is quite apparent to me that even though recruitments were made by the University, there is no evidence that they were made in replacement of those whose appointments had been terminated.
Nine professors and twenty-three persons with Doctorate Degrees, and other academic staff all in different fields had been sacked. My view is that exhibits D45a and D45b did not in fact prove that the appellants replaced with new hands the actual positions held by those whose appointments were terminated.
Let us suppose that this had been done, the learned trial Judge was quite right in holding on the evidence before him that there are more vacant positions in the University and that there was  room for the respondents to be re-absorbed. See page 381 of the record of proceedings.
The law is settled that where employment has statutory flavour, and it is found unlawfully terminated and set aside, the employee will be entitled to an order of reinstatement. It is my humble view that the lower court was right when it held that the respondents’ employment had statutory flavour and consequently granted the relief of reinstatement sought by the respondents. In UNTHMB v. Nnoli supra at page 93, Gnu, JSC held that –
“Once the retirement was declared null and void, that is to say, that the decision retiring her from the services of the UNTH was declared to be no decision, I do not see how and why the other reliefs could be denied her.
It is as if she was never retired from the services. The plaintiff’s contract of employment was in the circumstances of this case unilaterally repudiated by the defendants … There is nothing legally standing in her way to have her job or office back with all the attendant rights, privileges and benefits. In other words, she is entitled to be restored to her status quo ante.”
In Iderima v. Rivers State CSC (2005) 7 SC (Pt.111) p. 135 at p. 151; (2005) 16NWLR (Pt. 951) 378, at pg. 403 Justice Edozie, JSC said-
“It is settled law that once the dismissal of a civil servant is declared null and void, the effect of such pronouncement is that the civil servant was always and still is a civil servant.”
Learned appellants’ counsel cited Isievwore v. NEPA and Igbe v. Gov. Bendel State supra.
In Isievwore v. NEPA supra cited by appellants’ counsel, the Supreme Court per Gnu, JSC reading the leading judgment held –
“Be it noted that the fulcrum upon which revolved the decision of this case is a well established principle of law that a court cannot impose in an ordinary contract of service a willing servant on an unwilling master and this was what was established by the two main authorities used in deciding the appeal before it...”
Thus Isievwore v. NEPA decided different facts and law from the facts and law guiding this case. The Supreme Court in that case considered a contract of service and refused to order reinstatement.
We are here dealing with an employment with statutory flavour with the rights and privileges of the parties different from a mere contract of service. The Supreme Court also referred with approval to the case of Igbe v. Gov. Bendel State where it was held that the employee whose appointment had been terminated in gross violation of the Constitution was entitled to damages but could not be reinstated because of supervening events which made it impossible for the employee to return to his post. In that case, the constitutional provision was that the appellant could be employed for a certain term of years which had expired before the judgment of the Supreme Court.
Is it right in law and in the circumstances of this case for the appellants if indeed they filled the positions occupied by the respondents to have done so? I think not. The employment of the respondents was terminated on 22/5/2001 and by 21/8/2001 the respondents were in court to challenge it. Four years later, the appellants brought evidence of having replaced them. Two facts stand out clearly. Exhibit 122 was a letter written to the appellants by the NUC dated 29th June, 2001 before the respondents came to court. It is stated as follows:
“The Pro-Chancellor, University of Ilorin
The Pro-Chancellor, University of Nigeria, Nsukka
Federal Government/ASUU Negotiation I am directed to draw the attention of your Council to the cases of academic staff whose rights of continuous employment have been wrongfully and prejudicially affected as a direct consequence of the national strike of ASUU and to request you to kindly reverse such action taken by your Council/administration in order to ensure peace and harmony in the campuses in the country and in the spirit of the negotiations.
Signed by Professor Munzali fibril, OFR
Executive Secretary. ”
Granted that it would be unreasonable for the appellants to put the welfare of students and the smooth running of the University on hold, but in the circumstances of this case, it is clear that having received exhibit 122, if the appellants had the welfare of their students and the University system in mind, they should have promptly re-absorbed the respondents as requested by the NUC – the supervisory body.
The failure of the appellants to do so is a clear show of contempt for the authority of The National Universities Commission – NUC which had made the request that the lecturers be reinstated. The appellants tried to dodge this issue by its publication in exhibit 1 to the effect that the respondents were not sacked as a direct consequence of the national strike. Page 298 of the record shows that exhibit 122 was received by the appellants who blatantly decided to ignore it. The second fact which emerges is that none of the “replacements” in exhibits D45a and D45b were made before exhibit 122 requesting the appellants to reinstate the respondents. As if that was not enough, most of the replacements were also made after the respondents filed action against the appellants on 21/8/2001. The court will not allow itself to be made an instrument of oppression. See the Supreme Court in Jombo v. P.E.F.M.B. (2005) 7 SCNJ 257; (2005) 14 NWLR (Pt. 945) 443 where Pats-Acholonu, JSC rightly put the position as follows –
” … The court should always see itself as knight errant in a shinning armour brandishing its sword to help the hopeless and evenly seen not to collaborate with forces that choke and asphyxiate the rights of people thereby forcing them into the limbo of disillusionment and frustration. For this I find myself utterly in agreement with Eso, JSC in Garba v. FCSC & Anr. (1988) 1 NWLR (Pt.71) pg. 449 at 469-470 when he said:
‘… What remains now is an examination of the act of the respondents in dismissing the appellant from office during the pendency of the action. Such action, I think is contemptuous of the judiciary which has been seised with the determination of civil right under the Constitution and which has been left unscathed by all military coups. For the judiciary, a powerful arm of Government to operate under the rule of law, full confidence, and this must be unadulterated … The rule of law knows no fear, it is never cowed down, it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence. ”
In Jombo v. PEF, the appellant was dismissed under Decree 17 of 1984 (which ousted the jurisdiction of the courts) two years after he had gone to court to challenge the termination of his appointment by his employers. The Supreme Court did not allow itself to be manipulated and rightly upheld the rights of the appellant. That is the path this court shall take. There is no doubt that even if replacements were made, they were made in utter contempt and disregard of court proceedings in order to shackle the hands of the trial court and prevent unfettered dispensation of justice by saying there is no vacancy for the respondents. This should and will not be allowed. It would be a sad day indeed if this type of proposition is not vigorously discouraged and condemned. If not, all an employer has to do is to dismiss an employee wrongfully, promptly employ a replacement and for that reason resist an order of reinstatement, in effect tying the hands of the court by foisting a fait accompli on the courts thus diminishing the power and authority of the courts to adjudicate on the civil rights and obligations of the citizenry. See also Ogieva & 378 Ors. v. 19binedion & 3 Ors. (2005) FWLR (Pt.260)
p. 97 at 102 where the Benin Division of this court ordered the reinstatement of 378 teachers held to have been unlawfully retired by the Edo State Government.
For reasons given above, I am of the firm view that in spite of the purported “replacement” of the respondents, the learned trial Judge was right in granting an order of reinstatement in respect of the 42 respondents. This issue is resolved in favour of the respondents.
Issue five: Whether the trial court was right in ordering the payment of salaries and allowances of the respondents from February 2001 till the date of judgment and thereafter having regard to the applicable laws and facts and circumstances of the case and in granting the other reliefs awarded to the respondents.
Applicants’ counsel based his argument on this issue on the G government policy of no work no pay and the provisions of S. 42(1)(a) of the Trade Dispute Act, Cap. 432, Laws of the Federation,
1990 which states as follows –
“42.( 1) Notwithstanding anything contained in this Act or in any other law-
(a) where any worker takes part in a strike he shall not be entitled to any wages or other
remuneration for the period of the strike and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly. ”
He argued that the provision being unambiguous, the court had the duty to accord its ordinary meaning to it: no work, no pay. He cited Nwanezie v. Idris (1993) 3 NWLR (Pt. 279) page I at 14. He submitted that it would be inequitable to do otherwise. He cited Oil
Field Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) p. 625 at 640.
He argued that this case should be distinguished from the cases of Olaniyan v. Unilag supra, and Eperokwl v. Unilag supra in that herein the respondents voluntarily refrained from rendering services to their employers. He also argued that some of the respondents were gainfully employed elsewhere during the period of the trial.
He submitted that it would be inequitable for them to be paid again by the appellants.
He submitted that the learned trial Judge was wrong to have ordered payment of salaries and allowances to the respondents from February 2001 when they were clearly not at work even before then.
The respondents’ counsel on this issue argued that the strike was not a domestic one. He argued that the Trade Disputes Act did not prescribe termination of appointment for workers who carry out protests by strike action.
Learned respondents’ counsel also argued that since the whole case of the appellants at the trial court was that the respondents were not sacked because they went on strike, they cannot now change their story in this court to claim that the respondents should not be paid their salaries during the period of the strike.
I have carefully read pages 340-346 of the records showing the address of the appellants’ counsel at the lower court. Learned appellants’ counsel had argued there that it would be inequitable for the respondents to be paid for work not done during the period they were on strike.
My view of this matter is that the appellants cannot approbate and reprobate. It was not part of their case at the lower court that the respondents were not entitled to their salary during the period they were on strike. Before the termination of appointment, it is common ground that the respondents had been on strike since February 2001.
If the argument of the appellants is that between February and May 2001 while the respondents were on strike, they ought not to be paid, then that is a different issue which would call for the consideration of S. 42(1) of the Trade Disputes Act. Learned appellants’ counsel never pleaded the Trade Disputes Act at the lower court. The issue of the legal position of the lecturers viz whether they were on legal or illegal strike action was never put in dispute to bring the provisions of the Trade Disputes Act into consideration.
However, if the argument as I understand it is that the respondents ought not to be paid between February 2001 and thereafter as ordered by the trial court, that is another matter entirely. To my mind, it is a fallacious argument since the learned trial Judge had declared the termination of appointment null and void, he was right to order the payment of their salaries as if they had never left the employment of the appellants at all.
Learned appellants’ counsel never made this distinction in their pleadings, during trial and at the address stage at the lower court and thus the learned trial Judge had no opportunity to give an opinion
on it.
The 2nd point on this issue strenuously argued by the appellants is that some of the respondents have secured paid employment elsewhere during the pendency of the action. This action was instituted in August 2001 after the appointments of the respondents were terminated in May 2001. The respondents have been unemployed since May 2001 more than five years ago. Most of them are the major breadwinners in their homes. Are they expected to fold their hands, lie down and starve to death with their dependants?
This same issue was vociferously argued by the respondents in Eperokun v. Unilag where it was submitted that the appellants were not entitled to arrears of salary after their reinstatement because they had been gainfully employed elsewhere during the period of the litigation.
In Eperokun v. Unilag the pleadings of the plaintiffs – Unilag and the evidence before the court was that the University lecturers had contravened the code of conduct provisions of the 1979 Constitution. Evidence was led at the trial and findings made by the trial court on that point.
H In this case, the pleading of the appellants in this regard is as contained in paragraph 17 of the further amended statement of defence filed on 8/3/2005. It is set out below:
“The defendants aver and shall lead evidence that quite a number of the plaintiffs have secured paid employments in some other tertiary institutions, some have reached or almost reach (sic) retirement ages, some are in other forms of employments, while some had passed on.”
Even though DW1 & DW2 led no direct evidence at pages 294-301 and pages 332-339 of this pleading in paragraph 7 of the further amended statement of defence, P.W.2 conceded the fact that some lecturers have secured alternative employment ‘to keep body and soul together.’ The learned trial Judge made no finding of fact on this point. Minimal proof is required where there is no contradiction or concession had been made. Be that as it may, the full court consisting of seven Justices of the Supreme Court, Irikefe, CJN reading the lead judgment had a simple answer to the question of what happens if the respondents were found to be otherwise gainfully employed during the period of litigation. See Eperokun v. Unilag (1986) 7 SC (Pt. 1) p. 106 at pp. 127-128; (1988) 4 NWLR (Pt. 34) 162, where his Lordship held as follows:
“As the respondent under the terms of this judgment is obliged to restore each appellant to his employment which had been disrupted by this litigation, and each appellant being admittedly a public officer, those of them who had obtained paid employment during the pendency of litigation due to the refusal of the respondent to allow them to work should account to the respondent for monies received over and above their entitlements from the respondent.”
Obaseki, JSC while agreeing with the leading judgment on this issue made an interesting point. He said at page 179 of the report –
“In fact, the asset value of any university professor is increased by his continued employment in his field of
specialty or discipline. Anyone of such status and learning who sits idly by for 6 years is bound to lose efficiency and knowledge and have his asset value greatly depreciated. The idle climate does not polish but tarnish the man of learning. ”
Nnamani, JSC had another perspective outlined on pages 152-153 of the judgment. He was of the opinion that since the appellants were not seeking equitable reliefs but a declaration of the true state of the law particularly S. 17 of the Unilag Act, the submission that their gainful employment during the period of litigation is a bar in equity to their receiving their entitlements from the University, would not hold. The opinion of Oputa, JSC continued on page 201 of that report is as follows:
“Another way of looking at the issue is this – if the termination of the contracts of the appellants were at 1/1/81 null and void, it will be void for all purposes and at all times. The appellants obtaining gainful employment in 1982 may have other results, but that certainly will not validate the respondent’s letters of 30/12/80 for ex nihilo nihil fit. ”
The implication of all the above opinions of great legal minds is that this is an action in law and not in equity. We are here called upon to interpret S. 15 of the Unilorin Act. Where there is violation of the law by its practitioners, the full implication of the law must be brought to bear. Thus, whatever actions were taken by the respondents by way of seeking alternative employment during the course of the trial is not a bar to the declaration that their termination of appointments was unlawful or they be paid their salaries for that period in full. If the appellants have evidence that they received double pay during this period, such double pay should be proved and deducted from their entitlements. The fifth issue is resolved in favour of the respondents.
For reasons given above, the appeal lacks merit and it is hereby dismissed. Costs of N10,000 is awarded for the respondents against the appellants.
Appeal allowed.
Appearances
Mr. Yusuf o. Ali, SAN (with him, S. A. Bello, K. K. Eleja, B.
Akintunde [Miss] and N. Uregbulam [Miss]) For Appellant
AND
Mr. John Olusola Bayeshea (with him, Dayo Akinlaja, Funke
Abolarin [Miss], Wahab Ismail and Uloma Ahira [Miss]) For Respondent
