UNIVERSITY OF UYO & ORS V. DR. EDET P. AKPAN
(2013)LCN/5854(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2013
CA/C/62/2011
RATIO
“The learned authors of Blacks Law Dictionary, 9th edition page 360 define “Civil Contempt” as “The failure to obey a Court order that was issued for another party’s benefit.” Per TUR, J.C.A.
“In Black’s Law Dictionary, 9th edition page 397 “cost” means “the amount paid or charged for something; price or expenditure.” Per TUR, J.C.A.
JUDGMENT: WHAT IS A FINAL JUDGMENT
“A final judgment is a Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs or enforcement of the judgment.” Per TUR, J.C.A.
“The phrase “subject to” was defined by the Supreme Court in Olufeagba & ors. v. Abdur-Raheem & Anor. (2009) 11-12 SCM (Pt.1) 125 at 141 as follows: “…Where the provision of a Section is made subject to another one in application, the provision of the latter section governs controls and prevails over the provision made subject to it. In other words the provision of the memorandum of appointment and the revised Senior Staff Regulations are subservient, subordinate and inferior to the provisions of the University Act, and are consequently rendered subject to it.” See also Idehen vs. Idehen (1991) 7 SCNJ (Pt.2) 196 at 215-216; Ezenwosu v. Ngonadi (1992) 3 SCNJ 59.” Per TUR, J.C.A.
JUDGMENT: AWARD OF COSTS: WHETHER THE AWARD OF COSTS IS AT THE DISCRETION OF THE COURT AND WHETHER IT IS SUBJECT TO ECONOMIC REALITIES
“In Gabari vs. Ilori & 7 Ors. (2002) 14 NWLR (Pt.786) 78 at page 102 paragraph “H” to page 103 paragraphs “A-B” the Court of Appeal expressed the following views, per Salami, JCA (as he then was): “…The award of costs in Nigerian Court to a successful party is grossly inadequate as it hardly takes into consideration his solicitor’s fee which is spiraling in recent time because of dwindling value of the national currency, the Naira. The inflationary trend in the economy should respectfully be taken into account in the award of costs in our Courts. In the result the award of cost in the court below is not liable to setting aside contrary to the contention of the appellant.” At page 103 paragraph “G” to page 104 paragraph “A” of the same judgment Mohammed, JCA held as follows: “I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses. Unquestionably, the award of costs by the Court to the successful party falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercised judicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts as contained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not be denied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, the defeated party may not be damnified in costs. See: Akinbobola v. Plison Fisko (1991) 1 SCNJ 129 at 131 also reported in (1991) 1 NWLR (Pt 167) 207. As a general principle therefore, it may be said that costs are in the discretion of the court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, an appellate court is without power to interfere with such honest exercise of the Court’s discretion.” Per TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. UNIVERSITY OF UYO
2. MR. P.J. EFFIONG
(REGISTRAR & SECRETARY TO COUNCIL, UNIVERSITY OF UYO)
3. THE GOVERNING COUNCIL UNIUYO – Appellant(s)
AND
DR. EDET P. AKPAN – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Dr. Edet P. Akpan was an Associate Professor of Mathematics in the University of Uyo, Akwa Ibom State before his summary suspension and termination by the Governing Council of the University on 22nd March, 2004. The Associate Professor challenged his summary suspension and termination in a suit filed before the Federal High Court, Uyo, Akwa Ibom State on 21st June, 2004. Trial proceeded on pleadings coupled with oral and documentary evidence. On the 25th day of June, 2010 his Lordship E.S. Chukwu J., entered Judgment in favour of the Associate Professor making the following consequential orders:
“In the end Plaintiff’s case succeeds I make the following orders:
(1) It is hereby ordered that the termination of the Plaintiff’s appointment as contained in the Defendants letter dated 22nd March, 2004 with reference number UU/REG/76/VOL.1/103 in the hand of the Registrar and Secretary of Council is null and void and of no effect whatsoever.
(2) It is further ordered that the termination of the Plaintiff’s appointment and the suspension of the Plaintiff from the University as contained in the Defendants letter dated 9th June, 2003 with Reference No. UU/REG/S/15/S.I/Vol.1/403 is hereby declared null, void and of no effect.
(3) It is hereby ordered that the Plaintiff is entitled to all the salaries and allowances and other non-material and non-pecuniary benefits that are due and accruing to him before, during and throughout the period his appointment was unlawfully terminated.
(4) The Defendants are hereby ordered to forthwith reinstate the Plaintiff and pay him forthwith with effect from when his appointment was terminated all the salaries, allowances and other material and non-pecuniary benefits that are due and accruing to him before, during and throughout the period his appointment was terminated and throughout the period he was unlawfully suspended.
Cost follow events the Defendants are to bear the cost of this action which I assess at N500, 000.00 only.”
Being aggrieved the Appellants filed a joint Notice of Appeal to this Court on 30th July, 2010. An Amended Notice and Grounds of Appeal was filed on 6th July, 2011 and deemed properly filed and served with leave of this Court on 17th May, 2012. On 6th day of July, 2011 the Appellants filed a Joint Brief of Argument out of time which was however on application deemed properly filed and served on 17th May, 2012. The Respondent’s Brief of Argument was filed on 12th June, 2012. The Respondent filed a Notice of preliminary objection to Grounds 3 and 6 contained in the Amended Notice of Appeal as follows:
“(1) Grounds 3 and 6 of the Appeal contained in the Amended Notice of Appeal are incompetent and should be struck out.
AND TAKE NOTICE THAT, the grounds of the objection are as follows:
(i) Grounds 3 and 6 of the Appeal do not come under Section 241(1) of the 1999 Constitution of Nigeria (as amended) to qualify as Grounds of Appeal as of Right.
(ii) Both Grounds of Appeal not being grounds of law simpliciter, but of fact or at best mixed law and fact, leave to appeal ought to have been sought and obtained, and the Appellants have not obtained such leave before filling this appeal.
(iii) The failure to obtain such leave pursuant to Section 242 of the 1999 Constitution renders the said grounds incompetent.”
The Notice of Preliminary Objection prompted the Appellants to file a Reply Brief on 26th June, 2012. When the Appeal came up for hearing on 7th November, 2012 the Appellants and Respondent’s learned Counsel adopted their respective briefs of argument. Each asked for judgment in favour of their clients. I shall start with a consideration of the argument in respect of the preliminary objection set out at pages 4 paragraphs 1.1.2 to pages 6 paragraphs 2.0.8 of the Respondent’s Brief of Argument as the success of the argument may lead to the striking out of the said Grounds of Appeal.
Learned Counsel’s argument is that Grounds 3 and 6 of the Amended Notice of Appeal filed on 6th July, 2011 being on facts or at best mixed law and fact, leave of the Court ought to have been first sought and had else they are incompetent and should be struck out. The following cases were cited in argument, namely, Ojemen v. Momodu II (1983) 1 SCNLR 188 at 205; Yaro v. Arewa Construction Ltd. (2007) 30 NSCLR 1191 at 1215-1216; Orakosim V. Menkiti (2001) 87 LRCN 1536 at 1549; Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745; Anukam V. Anukam (2008) 33 NSCQR 104 at 1049; Akinyemi V. Odua Investment Co. Ltd. (2012) All FWLR (Pt.620) 1215 at 1226-1233.
Learned Counsel further argued that Ground 6 is an attack on the “weight of evidence” adduced before the trial Court and leave of that Court or this Court was required, citing Coker vs. UBA (1997) 47 LRCN 435 at 447; Customs and Excise Board v. Barau 2 NCR 1 at 48; Ogbechie vs. Onochie (1986) 2 NWLR (Pt.23) 484 at 493. That an omnibus Ground of Appeal complaining against the totality of the evidence adduced at the trial, is not against a specific finding of fact. That cannot be used to raise any issue of error in law on appeal. Counsel referred to Hassan v. Tade (2012) All FWLR (Pt.612) 1764 at 1775. Counsel urged that Grounds 3 and 6 in the Amended Notice of Appeal should be struck out.
In reply learned Counsel to the Appellants referred to the provisions of Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides that:
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
Learned Counsel argued that this is an appeal against the final decision of the Federal High Court unlike against an interlocutory decision and is not governed by Section 242(1) of the Constitution supra.
Learned Counsel cited the authority of Okoyekwu v. Okoyi (2009) 6 NWLR (Pt.1137) 350 at 381 paragraphs “B-D” in support of his argument to urge that the preliminary objection be dismissed.
I do not see the need to set out Grounds 3 and 6 in the Notice of Appeal because of what I intend to say.
Hearing in the Court below commenced on 16th June, 2009 and ended on 19th February, 2010. The learned trial Judge delivered judgment in favour of the Respondent on 25th June, 2010 now subject-matter of this appeal. The Judgment is a final decision of the Federal High Court. By virtue of Section 241(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered no leave of the Federal High Court or the Court of Appeal is needed to appeal to the Court of Appeal against a final judgment emanating from either the Federal High Court or a High Court when sitting as a Court of first instance. See Okoyekwu vs. Okoyi (2009) 6 NWLR (Pt.1137) 350 at 381 paragraphs “B-D” where it was held that:
“The purport of Section 241(1)(a) of the 1999 Constitution is that an appeal against final decisions in a civil or criminal proceedings before the High Court sitting at first instance is of right notwithstanding that the questions involved are of law, facts or mixed law and facts. In other words, leave of either the High Court or Court of Appeal is not required save in situations where the time stipulated for filing the appeal has expired. In the instant case, the 1st Respondent did not need to seek the leave of the Court of Appeal or High Court to appeal against the final judgment of the trial Court.”
See also Etim vs. IGP (2001) 11 NWLR (Pt.724) 266 where a similar argument was raised but dismissed by Mohammed, JCA at the Court of Appeal His Lordship holding that:
“…section 220(1)(a) of the 1979 Constitution has given the Appellants Right to Appeal as of right without any leave from final decision in any civil proceedings before the Federal High Court… It is therefore irrelevant whether the appellants’ ground 3 is a ground of law as asserted by the Appellants, or a ground of mixed law and fact as contended by the Respondents, as far as the circumstances of this appeal are concerned, it is indeed a good ground of appeal and therefore competent…”
A final judgment is a Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs or enforcement of the judgment.
The final judgment rule is the principle that a party may appeal from the Court sitting at first instance in a final decision that ends the controversy on the merits. In that case, the grounds of appeal may be based on errors in law, misdirection on facts, mixed law or fact, etc. A party must raise all issues of errors or facts in the Notice and Grounds of Appeal.
The cases cited by learned Counsel to the Respondent arose from decisions of Courts of first instance that went on appeal to either the defunct Federal Court of Appeal, Court of Appeal and finally to the Supreme Court. See for example Ofemen v. Momodu (1983) 1 SCNLR 188 at 205; Ogbechie & Ors. v. Onochie & Ors. (1986) 3 SC 54 and Customs and excise Board v. Barau (1982) 2 NCR 1.
In my humble view there is no substance in this preliminary objection which is dismissed.
FACTS:
There is no dispute that the Respondent was offered appointment as Assistant Lecturer in the Department of Mathematics in the College of Education, Uyo on 30th June, 1975 then in South-Eastern State of Nigeria. This is evidenced by Exhibit PW1 “A”. The College of Education Uyo later became the foundation upon which the University of Cross River State was established. Upon the creation of Akwa Ibom State, the College of Education Uyo became the University of Uyo, Akwa Ibom state (1st Appellant). The Respondent pleaded that the staff of the College of Education, Uyo were absorbed by the University of Uyo, Akwa Ibom State. The Respondent was amongst the many personnel of the defunct College that benefited from this exercise. These facts were not denied by the Appellants in their unamended Statement of Defence filed on 16th November, 2006. The Respondent enjoyed promotions in the service of the 1st Appellant as evidenced in Exhibits PW1 “B” of 8th December, 1980 and Exhibits PW1 “C” of 8th July, 1983. In Exhibit PW1 “D” of 24th June, 1997 the Respondent was promoted to the rank of Associate Professor in the Department of Mathematics/statistics/Computer Science with effect from 1st October, 1995 on grade level “EUSS 14 step 4.” Because of the activities of the Respondent as the Branch Chairman of the Academic Staff Union of Universities (ASUU), a frosty or uncordial relationship existed between the Respondent and the Appellants. The Respondent was accused by the University of circulating vexatious and inciting documents (Exhibit “PW1″N” of 12th December, 2003). Exhibit Pw1 “M” of 18th November, 2003 had to do with the suspension of ASUU strike. Exhibit PW1 “Q” of 19th February, 2004 is of a press conference by ASUU, University of Uyo Branch chaired by the Respondent and other Executive members highlighting the grievances of ASUU against the University Authorities. Exhibit Pw1 “P” of 16th January, 2004 is a press conference by Professor Akpan H. Ekpo, Vice-Chancellor of the University alleging there was plot by ASUU to assassinate him. Exhibit Pw1 “R” dated 24th February, 2004 by Akpan H. Ekpo is titled “We must Preserve this citadel of Learning.” It is an address delivered by the Vice-Chancellor at the 9th congregation of the University Community setting out all the efforts by the University to assuage ASUU.
On 22nd May, 2003 the police wrote to the Director, Educational studies Jekens Computers, Uyo to the effect they were investigating a case of certificate forgery against Miss Emem Anthony Edet said to have completed from their school, and if the centre was approved and authorized to issue National Diploma in Computer Studies, etc. Jekens Computers responded in Exhibit Pw1 “S”-“A” of 3rd June, 2003 that the institution was affiliated to the Department of Mathematics and Computer Science, Akwa Ibom State college of Education, Afaha Nsit. That the Respondent was an Educational consultant of Jekens Computers, in charge of all educational matters. The Respondent had been an eternal examiner in Computer Science for Akwa Ibom State Polytechnic and moderated examinations leading to award of ordinary Diploma in computer sciences etc. Jekens Computers denied the allegations of any certificate forgery by Miss Emem Anthony Edet as alleged by the appellants. Exhibit “T-A” of 27th October, 2000 by O.E. Inuewi, Deputy Provost, Akwa Ibom State College of Education is that Jekens Computers was an affiliate of the College of Education. Exhibit Pw1 “T” is the certificate incorporating Jekens Computers (Nigeria) by the Corporate Affairs Commission on 11th October, 2002. Exhibit Pw1, S-B” of 8th June, 2002 is from the state C.I.D. Ikot Akpan Abia, Uyo to the Respondent inviting him to the police station for the purpose of investigating the case of forgery proffered against him by the Appellants. Exhibit Pw1 “T-C” of 3rd March, 2004 is another police invitation to the Respondent that the office was investigating him for a plot to assassinate the Vice-Chancellor of the University of Uyo. That he should come to the State C.I.D. Uyo, Akwa Ibom State in company of his co-conspirators on 10th March, 2004 for the investigation. Exhibit PW1 “S-C” is a letter from Daniel Ndatah & Co. addressed to the then Inspector-General of police Tafa Balogun concerning the plight of the Respondent and his colleagues in ASUU in the university. In Exhibit DW”A” of 20th October, 2003 ASUU wrote the Vice-Chancellor a letter titled “MEET NASU DEMAND NOW”
On 12th December, 2003 the Appellants directed that the Respondent should be queried because at the last meeting held on Wednesday, 10th December, 2003, Council considered the circulation by the Respondent of vexatious and inciting documents and the language used therein as not in conformity with the desired conduct of a confirmed staff; that the Respondent should show cause why severe disciplinary action should not be taken against him “on this level of misconduct”. The Respondent was queried on 12th December, 2003 via letter No. UU/REG/S/15/S.1/Vol.1/455. Exhibit Pw1 “O” is the Respondent’s comments on the query addressed to the Registrar/Secretary to Council of the university dated 17th December, 2003 that the authorities should differentiate between the Respondent as a person and as chairman of ASUU Branch in the University. On 9th June, 2003 the Respondent received a letter of suspension from the University (Exhibit Pw1, “K”). The letter read thus:
“OFFICE OF THE REGISTRAR,
UNIVERSITY OF UYO,
PMB 1017, UYO, AKWA IBOM STATE, NIGERIA,
Registrar P.J. Effiong, B.Sc. (Hons); M.A. (Ed.) Ife, MNIM, AIPM MIPOM
June 9th, 2003
UU/REG/S/15/S.1/VOL.1/403
Dr. E.P. Akpan,
Department of Mathematics, Statistics &
Computer Science,
University of Uyo,
UYO.
Dear Sir,
SUSPENSION FROM THE UNIVERSITY
Council, at its special meeting held on Monday, June 09, 2003, received a report of alleged forgery of certificate proffered against you. In the allegation, you are said to have co-signed a National Diploma from JEKENS COMPUTERS for one Emem Anthony Edet. After due consideration, Council approved that you be suspended from the university to allow for a smooth investigation into the matter.
You are by this letter suspended with effect from the date of this letter until you are cleared of the allegation. While on suspension,
(i) You will be placed on one half of your basic salary;
(ii) You are barred from entering the University campus except when you are duly invited by the Committee that is investigating the allegation;
(iii) You should leave your contact address with your Ag. Head of Department for correspondence purposes;
(iv) You should hand over all University property in your possession to your Ag. Head of Department
Thank you.
Signed
P.J. Effiong
Registrar & Secretary to Council.”
In Exhibit DW1 “B” of 3rd August, 2003 it was alleged that the Respondent had disobeyed the conditions under which he had been suspended for he was still entering the premises of the university. Exhibit Pw1 “F” of March, 2004 is the letter terminating the Respondent’s appointment from the University. The letter read as follows:
“OFFICE OF THE REGISTRAR,
UNIVERSITY OF UYO,
PMB 1017, UYO, AKWA IBOM STATE, Nigeria,
Registrar P.J. Effiong, B.Sc. (Hons); M.A. (Ed.) Ife, MNIM, AIPM MIPOM
March 22nd, 2004
UU/REG/76/Vol.1/103
Dr. E.P. Akpan,
Ufs. The Acting Head,
Dept. of Mathematics, Computer Science &
Statistics,
University of Uyo,
Uyo.
TERMINATION OF APPOINTMENT
The University Governing Council at its 37th Meeting held on Tuesday, March 17, 2004 decided that your services with the University are no longer required in the best interest of the University. Consequently, your appointment is hereby terminated.
You are please advised to hand over any property of the University in your possession including your staff identify card to the Acting Head, Department of Mathematics, Computer Science and Statistics.
By a copy of this letter, the Bursar has been advised to pay you your terminal entitlements including three months salary in lieu of notice after due clearance.
Thank you
Signed
P.J. Effiong
Registrar and Secretary to Council.”
Before his suspension on 9th June, 2003 (Exhibit Pw1 “K”) and subsequent termination of appointment Exhibit Pw1 “F” of 22nd March, 2004), the Respondent had obtained from the Court below two separate Exparte Orders on 3rd February, 2003 and 24th June, 2003 in suit Nos. FHC/UY/CS/145/2003 and FHC/UY/CS/190/2003 granting him leave to enforce his fundamental right as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as altered and a stay of further actions by the Appellants pending the determination of the Motion on Notice and the hearing of the substantive suits. These are Exhibits Pw1 “G” of 3rd February, 2003 and Pw1 “H” of 24th June, 2003. They read thus:
”IT IS HEREBY ORDERED AS FOLLOWS:
1. That order is granted as prayed.
2. That the leave so granted shall act as stay of all actions and maters pertaining to and connected with the Applicant’s complaint until the determination of Motion on Notice to be filed by the said Applicant.
3. That the return date shall be 12/2/2003.
ISSUED AT CALABAR under the seal of the Court and the Hand of the Presiding Judge this 3rd day of February, 2003.”
Again in Exhibit “PW1H” the Respondent was granted the following remedies by the trial Court:
“IT IS HEREBY ORDERED AS FOLLOWS:
1. That leave is hereby granted the Applicant to enable him apply for the enforcement of his fundamental rights namely, right to dignity of human person, right to personal liberty, right to fair hearing and right to peaceful assembly and association.
2. That the Respondents are restrained from further violating or threatening the Applicant’s fundamental rights.
3. That the leave granted herein shall operate as a stay of all actions or matters relating to or connected with the allegation of forgery against the Applicant.
4. The orders of restraint and stay of further action in paragraphs (2) and (3) herein are temporary; they will remain in place until the Respondents appear in Court and convince the Court to lift same. Failure to do this will make the orders to continue to operate pending the determination of the substantive action in the Motion on Notice.
5. That the case is adjourned to 7th day of July for the Motion on Notice.
ISSUED AT UYO, under the Seal of the Court and the Hand of the Presiding Judge this 24th day of June, 2003.”
Notwithstanding the existence of these two restraining orders the Appellants set up a panel to investigate the Respondent. An invitation was sent to the Respondent on 29th December, 2003 to appear before that panel (Exhibit DW1 “C”). Exhibit DW1 “D” is a report dated 6th January, 2004 by one O.N. Udoh, Assistant Chief Security Officer intimating the Vice-Chancellor, Administration that the Respondent had refused to accept the invitation to appear before the investigating panel because of the interlocutory orders of the lower Court. The panel deliberated and submitted a report (Exhibit DW1 “B”) which culminated into the termination of the Respondent’s appointment on 22nd March, 2004 (Exhibit Pw1 “F”). These facts are not denied by the Appellants. Their only reason was that they gave the Respondent the opportunity to appear before the panel which he turned down hence his suspension and termination.
ISSUES FOR DETERMINATION:
APPELLANTS
The Appellants’ six issues for determination distilled out of six Grounds of Appeal reads as follows:
“1. Whether the learned trial Judge was right in holding that the appointment of the Plaintiff/Respondent enjoyed statutory flavour, by virtue of the University of Cross River State Law, 1980 as amended by the Cross River State Amendment Law (1983) which must be terminated in accordance with relevant statutory provisions thereby placing the Respondent’s case with Olaniyan V. University of Lagos (1988) 2 NWLR (Pt 9) p.599.
2. Whether the learned trial Judge was right in holding that in the absence of a Federal Law establishing the University of Uyo, automatically the University of Cross River State Law, 1980 as amended by the University of Cross River State Amended Law, 1983 governed the operation of the University of Uyo (1st Appellant). Relying on the authority of Etim v. I.G.P. (2001) 11 NWLR (pt. 728) 272 at p.280 (sic) part 724.
3. Whether the lower Court in all circumstances and having regards to the pleadings and evidence was right in holding that the Respondent was not given fair hearing before his appointment was terminated by the Appellants.
4. Whether the lower Court was right in holding that the termination of the appointment of the Plaintiff/Respondent was illegal, same having been done in contempt of a subsisting Court order.
5. Whether the lower Court acted judiciously and judicially in its exercise of judicial discretion by awarding the sum of N500, 000.00 Five Hundred Thousand Naira) against the Appellants as cost of action when the Respondent never asked for it.
6. Whether in all circumstances and having regards to the pleadings and evidence in this Case, the lower Court was right in entering judgment in favour of the Plaintiff/Respondent.”
Both the Appellants and the learned Counsel to the Respondent distilled six issues for determination from six Grounds of Appeal. I wish to remind Counsel that as much as possible it is advisable to distill a single issue from many Grounds of Appeal. It is not permissible for Counsel or parties to formulate many issues from a single Ground of Appeal. See Kalu V. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. In Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 Onu, JSC held at page 16 of the judgment that:
“Indeed it is now a very well established principle of law that except in special cases where the Grounds of Appeal so dictate, it is undesirable to formulate an issue in respect of each ground of appeal. See Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt 118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt 109) 352 and Utih v. Onoyirwe (1991) 1 NWLR (Pt 166) 166-214…”
As to what is to be done if the issues formulated overlap or are prolix the Supreme Court held in Anie v. Uzorka supra at page 16 as follows:
“While it is now well settled that it is not right for a Court to suo motu formulate or single – handedly raise issues for the parties (See Nwokoro v. Onuma (1990) 3 NWLR (PT 136) 22 at 55 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 119) 556 the four issues put forward on Respondent’s behalf if contracted into three by reason of their issues 3 and 4 overlapping each other and for the sake of convenience are better argued together as one issue), I will respectfully adopt them for the argument of this Appeal.”
Furthermore, the issues formulated must arise from the Grounds of Appeal. Without a Cross-Appeal or a Respondent’s Notice that the judgment or decision be varied on other grounds a Respondent cannot formulate issues for determination, in the words of Nnaemeka-Agu, JSC, “…In nubibus – hanging in the skies.” See Atanda & Ors. v. Akanji & Ors. (1989) 2 NSCC 511 at 537; Akinlagun v. Oshobajo (2006) 12 NWLR (Pt.995) 60/80.
Again in Customs and Excise Board vs. Barau (1982) 2 NCR 1 Fatayi-Williams CJN at page 15 of the judgment reduced the submissions of the learned Federal Director of Public Prosecutions based on three Grounds of Appeal “to their essential details” taking into consideration the construction or interpretation to be placed on the relevant statutes and subsidiary legislation, partly on the Grounds of Appeal and finally on the written brief of argument.
Furthermore, learned Counsel should be guided by the provisions of Order 18 rule 3(6)(a)(c) of the Court of Appeal Rules, 2011 which provides that except where the Court directs otherwise, every brief to be filed in the Court shall not exceed 30 (thirty) pages. Every brief which does not comply with the page limit and page size requirements of this order shall not be accepted by the Registry for filing. The Appellants’ original brief of argument contains 34 pages while the Reply brief has 4 pages. The Respondent’s brief contains 31 pages. Strictly speaking by virtue of Order 18 rule 3(6)(a) and (c) of the Rules supra both briefs should not have been accepted by the Registry for filing. Order 18 rule (5) of the Rules supra further provides that “Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.” By Order 18 rule 3(6)(3) of the Rules supra the parties shall assume that the briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
The provisions of Order 18 rule 3(5)(6)(a) and (c) of the Court of Appeal Rules, 2011 are couched in mandatory terms with the use of the phrase “Shall not exceed 30 (thirty) pages” in paragraph 3(6)(a) of the Rules. It may be necessary in future for the Registry to enforce the requirements of the rules in order to save the cost of settling bulky briefs, reduce the time spent by Justices in reading such briefs thereby dissipating time and energy. Doing so will ensure speedy dispensation of justice.
I intend to compress and marry together the six issues raised for determination by learned Counsel to the Appellants. This is due to the fact that being prolix, they overlap taking into consideration the issues joined on the pleadings, and the evidence and findings of the learned trial Judge. Argument on appeal should be anchored on pleaded facts. See IBWA v. Imano Ltd. (2001) 5 SCNJ 160 at 184; Balogun v. Obisanya (1956) 1 FSC 22 at 23.
APPELLANTS’ ISSUES ONE AND TWO:
I shall consider issues one and two together. In arriving at the conclusion that the appointment of the Respondent had statutory flavour his Lordship relied on the judgment of the Supreme Court in Olaniyan vs. University of Lagos (1988) 2 NWLR (Pt.9) 599 and the documentary exhibits tendered by the parties. Nevertheless the learned Counsel to the Appellants argued that the said decision was founded on the University of Lagos Act, 1967 which in that case was clearly pleaded. But in the present Appeal, the statute creating the University of Uyo was not pleaded. It was argued that the 1st Appellant does not have any provision similar to the University of Lagos Act, 1967. Besides, Decree No.11 of 1993 is silent on the termination and dismissal of the officers to whom it is applicable. The Respondent and the 1st Appellant’s relationship was governed by common law principles of a master/servant. The Appellants’ appointment ought not to have been elevated by the learned trial Judge to one with a statutory flavour. The termination could be effected with or without reasons, particularly where an employee as the Respondent was guilty of gross misconduct, grave and weighty as to undermine the confidence between him and his employer. Reliance was placed on Isong Udofia Umoh v. Industrial training Governing Council (2001) 4 NWLR (Pt.703) 281 at 300; Etim Okon Aute v. University of Calabar & Anor (2001) 5 NWLR (Pt.700) 239 at 258-259 paragraphs “A-G”. Learned Counsel further argued that it was highly presumptuous to clothe Exhibit “PW1E” with statutory flavour. The learned trial Judge erred to have held that Exhibit “PW1E” was made subservient to the University of Cross River State Law, 1980 as amended by the University of Cross River State Amendment Law, 1983 citing WR & Pc Ltd. vs. Onwo (1999) 12 NWLR (Pt.630) 328-329. Counsel submitted that the 1st Appellant, being a statutory body cannot be debarred from entering into an ordinary contract of master and servant even if by virtue of Decree No.11 of 1993 she was a statutory body, citing Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt.291) 47 at 57-58. That though the 1st Appellant was founded, owned, and funded by the Federal Government by virtue of Decree 11 of 1993, the relationship between the 1st Appellant and the Respondent was that of master and servant, citing NEPA v. Isievwore (1997) 7 NWLR (Pt.511) 155; Abdulrajac Salami vs. New Nigerian Newspaper Paper Ltd. (1999) 13 NWLR (Pt.634) 31 5 at 332. It was contended that an institution, founded and funded by the Federal Government of Nigeria cannot be governed by a moribund and spent University of Cross River State Law, 1980 as amended by the University of Cross River State (Amendment Law, 1983) merely for the reason that in 1991 the 1st Appellant commenced its existence on the structures and facilities of the defunct University of Cross River State which laws had long been confined to the achieves. That all references made by the learned trial Judge to the University of Cross River State Law as amended were irrelevant. Counsel cited Oba Lipede vs. Chief Adiosonekan (1995) 1 SCNJ 184 at 213 as showing what happens when a statute or legislation is “Spent” or becomes “obsolete”. Counsel further contended that upon the establishment of the 1st Appellant only her statutes but not the University of Cross River state Law as amended governed the relationship between the Appellants and the Respondent. The decision in Etim v. IGP (2001) 11 NWLR (Pt.724) 272 at 280 the learned trial Judge relied upon had no application to the facts of this Appeal because in that case the question to be determined was the application of the Limitation Decree No.88 of 1966. Relying on Angel Spinning and Dyeing Ltd. V. Fedelix Ajah (2000) 13 NWLR (Pt.658) 532 at 554 and Dr. G.S. Obo vs. Commissioner of Education, Bendel State & Anor (2001) 2 NWLR (Pt.698) 625 at 636 learned Counsel argued that an employer of labour is not bound to be saddled with an unwanted staff, and may terminate his services without stating reasons. Counsel urged that issues one and two be resolved in favour of the Appellants.
RESPONDENT’S REPLY:
Learned Counsel to the Respondent referred this Court to chapter 2 page 3, paragraph 2.0.1 of the Senior Staff Regulations and Conditions of Service tendered and marked as Exhibit ‘PW1E’ which provides that the Respondent’s terms and conditions of service were “subject to the provisions of the Law and Regulations of the University.” That this has to be the University of Cross River State Law, 1980 as amended in 1983. Counsel cited Olufeagba & Ors. v. Abdur-Raheem & Anor (2009) 11-12 (Pt.1) SCM 125 at 141 for the meaning of “subject to.” That section 9(1)-(4) of the UNICROSS Law, 1983 provided the required conditions upon which the contract of service of a Senior Staff could be terminated. Counsel contended that on the authority of the universities (MISC) Act No.11 of July, 2003 and the Amended Act, 2003 the 3rd Appellant could not act outside the confines of the laws and statutes establishing the 1st Appellant. Counsel contended that the conditions of service are subject to the law which protected the employment of the Respondent thereby confirming same to be one clothed with statutory flavour. It was further contended that since the Respondent had been enjoying statutory protection by virtue of his employment in the College of Education, and after his absorption by the University of Cross River State, Uyo, the 1st Appellant could not take away that protection, citing Eperekun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 175; The Director SSS vs. Agbakoba (1999) 3 NWLR (Pt.595) 314 at 361; PDP V. INEC (1999) 11 NWLR (Pt.626) 200 at 241; Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered and Olufeagba & Ors. V. Abdur-Raheem & Anor (2009) 11-12 (Pt.1) SCM 125 at 135. That the UNICROSS Law of 1983 as amended had not been repealed but was still applicable. Counsel drew attention to Exhibit “PW1E”; FCSC V. Laoye (1989) 2 NWLR (Pt.106) 652 at 710; Employment Law by Emeka Chiann p.39 (Benico Publishers) and Olaniyan v. University of Lagos State (1985) 2 NWLR (Pt.9) 599, arguing that these applied to public servants in the established and pensionable cadre of the Federal Government Service such as the Respondent. The Appellants and the Respondent’s relationship is not hinged on master and servant. Even under that relationship specific performance could be ordered in certain circumstances, citing Folorunsho v. WAEC (2011) All FWLR (Pt.556) 422 at 482-483 and a host of other decisions. It was argued that where an employee is terminated on the grounds of misconduct, his removal would be unjustified if not offered the opportunity to explain, justify or defend the alleged misconduct. Counsel referred to Shell Petroleum Dev. Co. Ltd. v. Olanrewaju (2009) All FWLR (Pt.458) 208 at 222 paragraph “E-G”; Aiyetan v. Nigerian Institute For Oil Palm Research (1987) 3 NWLR (Pt.59) 48 and CBN & Anor v. Igwilo (2007) 147 LRCN 913 at 944. It was too late for the Appellants to argue in the face of Exhibit “PW1E” and the UNICROSS Law as amended that they were not bound by the terms of their relationship with the Respondent as one having statutory flavour, citing Oyeyemi V. Commissioner For Local Government (1992) 2 NWLR (Pt.226) 661 at 685 paragraph “E-F”. Counsel referred to Etim vs. IGP (2001) 11 NWLR (Pt.724) 272 at 280 as having been rightly applied to the facts of this case by the learned trial Judge. Counsel urged that issues one and two be resolved against the Appellants.
REASONS FOR JUDGMENT: ISSUES ONE AND TWO
The Respondent as the Plaintiff pleaded his status and the laws governing his employment with the 1st Appellant in paragraph 7 of the Amended Statement of Claim as follows:
“7. Being a public servant and lecturer in a Federal University, the Plaintiff’s employment is governed and regulated by conditions and terms made applicable to the Federal University system and particularly as contained in the 1st Defendant’s “The Regulation Governing the Senior Staff Conditions of Service” hereinafter referred to as Conditions of Service” which the 3rd Defendant approved at its 20th meeting held on Thursday, 13th November, 1997 and distributed to all its Senior employees. The said “Conditions of Service is hereby pleaded and shall be founded upon at the trial of this suit.”
Paragraph 2 of the Statement of Defence pleads that:
“2. The Defendants admit paragraphs 2, 3, 4, 5 and 7 of the Statement of Claim.”
See also paragraph 11 of the Statement of Defence.
What is pleaded by the Respondent and admitted by the Appellants needs no further argument both at the Court of trial and in the Court of Appeal. The effect of these averments is that the Respondent was a public servant, an Associate Professor in the Federal University of Uyo. His employment was governed and regulated by conditions and terms applicable to the Federal University system as contained in the Regulation Governing the Senior Staff Conditions of Service which the 3rd Appellant approved at its 20th meeting held on Thursday, 13th November, 1997. Where there was an original contract of employment and terms of conditions of service are later introduced, the rights of the parties must be interpreted in terms of the original contract as modified by the new law or regulation. See Sapara vs. U.C.H.B.M. (1988) 7 SCNJ (pt.2) 82 at 102.
In questions of termination of appointment it is the law and regulations governing the terms and conditions of service that must be interpreted or construed to determine whether the appointment of the employee is one that has statutory flavour or is pure master and servant relationship governed by common law principles. See Morohunfola v. College of Technology (1990) 7 SCNJ 51; Olatunbosun v. NISER (1988) 3 NWLR (pt.80) 25. In Shell BP Petroleum Development Co. of Nigeria Ltd. & 5 Ors. V. Onasanya (1976) 6 SC 57 the action was founded on wrongful termination of contract. The Supreme Court held at page 60 that, “…It is not disputed that this action is founded on contract. The plaintiff must therefore give sufficient particulars in his pleading to enable the contract to be identified…”
In my humble view the facts set out in the Amended Statement of Claim gave sufficient particulars of the nature of the contract of employment and the terms and conditions including the Law and Regulation under which the Respondent’s appointment may be terminated by the Appellants.
None of the parties made the applicability or non-applicability of the University of Cross River State Law of 1980 and the Amendment Law, 1983 an issue in their respective pleadings. The Court below ought to have confined itself to the Regulations Governing the Senior Staff Conditions of Service 1998 (Exhibit Pw1 “E”) under which the Respondent’s appointment was terminated. That is what both parties pleaded and canvassed at the trial. However it is not every error committed by a lower Court that leads to the judgment being set aside. See Onifade vs. Olayiwola (1990) 11 SCNJ 10 at 22; Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104; Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156 at 163.
By Exhibit Pw1 “D” of 24th June, 1997 the Respondent as an Associate Professor was earning “EUSS 14 step 8”. Under paragraph 4(h) of The Regulations Governing the Senior Staff Conditions of Service, 1998 (Exhibit Pw1 “E” the Respondent was a “Senior Staff” of the 1st Appellant. The term “Senior Staff as defined under paragraph 4(h) of the Regulation “means a member of staff on University appointment, whether full time, temporary or contract earning a salary EUSS 6 or above, and serving the University in teaching or non-teaching schedule of duties.” In chapter one paragraph 1 of Exhibit “PW1E it is provided under the heading “Introduction” that “These regulations may be cited as the Senior Staff Conditions of Service Regulations. They are meant to apply to all persons employed in the University of Uyo and designated as Senior Staff serving in the Academic, Administrative, Professional or Technical units of the University, except persons appointed to the Council as the Principal Officers under the provisions of the University Law.” Again chapter two paragraph 2.01 of Exhibit “PW1E” titled “General” reads thus: “An employee of the University shall hold office in the academic, administrative, professional or technical cadres on such terms and conditions of service as may be set out in a contract in writing between him and the University, such contract being signed on behalf of the University by the Registrar or by such other person as may be authorised for that purpose by the University and any such contract shall contain or be deemed to contain a provision that the terms and conditions of service therein specified are subject to the provisions of the Law and Regulations of the University.”
It is not in dispute that the Respondent is among the staff of the College of Education Uyo that were absorbed by the University of Uyo upon its coming into existence. Paragraph 2.06(b) of Exhibit Pw1″E” reads as follows:
“Where appointment of an employee had been previously confirmed by a former employer in the Nigeria Public Service, tertiary institution or parastatal, he shall be deemed to be under confirmed/pensionable appointment in the University provided his record of service has been transferred from the former employer to the University.”
The fact that the Respondent was absorbed from the College of Education, Uyo to the University of Uyo not being in dispute, I hold that he held a confirmed/pensionable appointment by virtue of the above provisions. Exhibit “PW1E” is categorical that the appointment of the Respondent whether it contains express provisions or not it shall be deemed that the terms and conditions of service therein specified are “subject to the provisions of the Law and Regulations of the University.”Exhibit Pw1″E” recognizes the existence of “the Law and Regulations of the University” of Uyo to which the terms and conditions of service of the Respondent are “subject to”. The phrase “subject to” was defined by the Supreme Court in
Olufeagba & ors. v. Abdur-Raheem & Anor. (2009) 11-12 SCM (Pt.1) 125 at 141 as follows:
“…Where the provision of a Section is made subject to another one in application, the provision of the latter section governs controls and prevails over the provision made subject to it. In other words the provision of the memorandum of appointment and the revised Senior Staff Regulations are subservient, subordinate and inferior to the provisions of the University Act, and are consequently rendered subject to it.”
See also Idehen vs. Idehen (1991) 7 SCNJ (Pt.2) 196 at 215-216; Ezenwosu v. Ngonadi (1992) 3 SCNJ 59.
What “Law” is Exhibit “PW1E” alluding to? To answer this question I shall refer only to the provisions of Section 1 of the Universities (Miscellaneous Provisions) Act No.11 of 1993 with commencement date being 1st January, 1993 which provides as follows:
“1. Notwithstanding anything to the contrary contained in any law the provisions of this Decree shall apply to a University controlled by the Government of the Federation and listed in the schedule to this Decree.”
The side note to Section 1 of Act No.11 of 1993 reads as follows, “Application of Decree to Federal Universities.” The side note to Section 8 of the Act further provides as follows: “Retiring age of academic staff of Universities.” Section 8 of Act No.11 of 1993 then makes the following elaborate provisions:
“8-(1) Notwithstanding anything to the contrary in the Pensions Act, the compulsory retiring age of an academic staff of a university shall be sixty-five years.
(2) A law or rule requiring a person to retire from the public service after serving for thirty-five years shall not apply to an academic staff of a University.”
Paragraph 4(b) of Exhibit “PW1E” defines “Academic staff” to mean “an employee of the University whose primary duty is teaching, research and community service.” Act No.11 of 1993 further provides as follows:
“9. A person who retires as a professor having served:-
(a) a minimum period of fifteen years as a professor in the University or continuously in the service of a
University in Nigeria up to the retiring age; and
b) who during the period of service was absent from the University only on approved national or University assignments, shall be entitled to pension at a rate equivalent to his last annual salary and such allowances, as the Council may from time to time, determine as qualifying for pension and gratuity, in addition to any other retirement benefits to which he may be entitled.
10. If a provision of any other law is inconsistent with a provision of this Decree, the provision of this Decree shall prevail and the provision of that other law shall to the extent of the inconsistency be void.”
Under the Schedule to Sections 1 and 11 of Act NO.11 of 1993 appears the following information:
”SCHEDULE
LIST OF FEDERAL UNIVERSITIES TO WHICH THIS DECREE APPLIES:
x x x x xx xxx x x xx xxx x x x xx x x x x
22. University of Uyo, Uyo
23. Federal University of Technology, Yola
24. Anmadu Bello University, Zaria
MADE at Abuja this 1st day of January, 1993.”
The University of Uyo is listed as number 22 among the 24 Federal Universities to which Act No.11 of 1993 applies. Under section 8(1) and (2) of the Act, the compulsory retirement age of the Respondent as an “academic staff” would have been 65 years. Upon retirement the Respondent would have been entitled to pension and gratuity, in addition to any other retirement benefits to which he may be entitled. The Respondent’s employment I hold is protected by Act No.11 of 1993. His terms and conditions of service are regulated by the Regulations Governing the Senior Staff Conditions of Service. Act No.11 of 1993 is deemed to have been enacted as an ‘Act’ of the National Assembly. See Section 315(1)(a), (4)(b) read together with Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Furthermore, the Respondent is in the “Public Service of the Federation” being a staff of an educational institution established and financed principally by the Government of the Federation of Nigeria see Section 318(1) (f) of Constitution supra. In Bamgboye v. University of Ilorin (1999) 6 SCNJ 295 Uwaifo, JSC defined what constitutes an employment having statutory flavour at page 347-348 as follows:
“It is now a well-established principle of law that when an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations made thereunder, any person holding that office or is in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding: See Shitta-Bey vs. Federal Civil Service Commission (1981) 1 SC 40 at 56-57; Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt.9) 599 at 612-613; 622-623; Eperokun v. University of Lagos (1986) 4 NWLR (Pt 34) 162 at 201; Olatunbosun vs. NISER Council (1988) 3 WLR (Pt 80) 25 at 41. The appellant falls within the category of a person in an employment or office with a statutory flavour.”
See also Federal Public Service Commission v. Laoye (1989) 2 NWLR (Pt.106) 652; CBN v. Igwillo (2007) ALL FWLR (Pt.379) 1385 at 1401 paragraphs “C-F”; Vidyodaya University of Ceylon v. Silva (1964) 5 All E.R. 865 and Ceylon University v. Fernando (1960) 1 All E.R. 631.
In Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt.9) 599 the Supreme Court held that:
“Public servants in the established and pensionable cadre of the Federal Government service do not hold their offices at the pleasure of the Federal Government. Rather their appointments are based on rules and regulations, statutes or memoranda of appointment and that the University of Lagos and the University Council, both being creatures of statute, cannot act except within and under the powers conferred on them by the relevant statute.”
See also Aiyetan vs. Nigerian Institute for Oil Palm Research (1987) 3 NWLR (Pt.59) 48.
Act No.11 of 1993 need not be pleaded by the Respondent for it is unnecessary to plead matters of which the Courts are bound to take judicial notice of. See Benson v. Ashiru (1967) NMLR 363/366; Adetipe vs. Amodu (1969) NMLR 62 at 67; Section 122(1) (2)(a) of the Evidence Act, 2011. The Court does not need to call upon Counsel to address on Act No.11 of 1993 before judicial notice can be taken to the fact that it applies to the University of Uyo and the Respondent as an Associate Professor in that institution. See Finnih vs. Imade (1992) 1 SCNJ 87 at 102. I hold that the Respondent’s appointment is protected by statute. I resolve issues one and two against the Appellants.
APPELLANTS’ ISSUES THREE, FOUR AND SIX:
Learned Counsel to the Appellants contended that the Respondent did not adduce cogent and credible evidence to be entitled to judgment. Reference was made to Section 135, 136 and 137 of the Evidence Act, 2004. It was argued that the oral and documentary evidence was not evaluated by the learned trial judge. Odofin v. Mogaji (1978) 3 SC 91; Gilbert Onwuka vs. Michael Ediaza (1989) 1 NWLR (Pt.96) 182 at 208-209; Adeyeye vs. Ajiboye (1987) 3 NWLR (Pt.61) 432 and Stephen vs. The State (1986) 5 NWLR (Pt.46) 978 were cited in argument. Counsel however conceded that issues are joined on the pleadings. Reference was made to ACB Plc & Anor vs. Emostrade Ltd. (2002) 97 LRCN 846 at 855; Dennis Ivienagbor vs. Henry Bazuaye & Anor (1999) 9 NWLR (Pt.620) 550 at 854. Learned Counsel referred to paragraph 5 of the Amended Statement of Claim as showing what the Respondent pleaded in support of his claim. Counsel cited Okomu Oil Palm Co. vs. Iserhienhien (2001) 85 LRCN 1122; Katto vs. CBN (1999) 69 LRCN 1011 at 1704 and Bamgboye vs. University of Ilorin & Anor (1991) 8 NWLR (Pt.207) 1; Nigerian Telecommunications Ltd. vs. Emmanuel Oshodin (1999) 8 NWLR (Pt.616) 528 at 544 to 545 to the effect that failure to plead and tender the letter of Respondent’s appointment was fatal to his case.
On lack of fair hearing Counsel drew this Court’s attention to Exhibits “DW1B” “DW1C”, “DW1D” and “PW1N” as showing that the Respondent had been invited to appear before a panel. This was communicated to him through the Deputy Chief Security Officer of the Appellants but he spurned the invitation on the excuse the letter could be a bomb. Counsel referred to the meaning of “fair hearing” as defined in the New Lexicon Webster’s Dictionary of the English Language, 1991 edition, p.446; Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; Ogundayin v. Adeyemi (2001) 89 LRCN 2488; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 166 at 151; Udemah vs. NCC (1991) NWLR (Pt.180) 47; Isong Udofia Umoh vs. Industrial Training Governing Council (2001) 4 NWLR (Pt.703) 281 at 300 and Bamgboye v. University of Ilorin (1999) 65 LCRN 295 at 305.
Counsel’s further contention was that the procedure for instituting contempt proceedings against a party is clearly distinct from the procedure for instituting suits for termination of appointment by an aggrieved party. Counsel referred to the facts pleaded in paragraph 11 of the Amended Statement of Claim and cited Ojukwu v. Military Governor of Lagos State (1985) 2 NWLR (Pt.10) 806 as showing that the Courts frown at self-help during the pendency of a suit but without declaring such acts to be illegal or unlawful. That the Supreme Court usually expresses her readiness to set aside such acts and to restore the parties to the status quo on an application brought by the aggrieved party. The trial Judge erred to have given as one of the reasons for the judgment the Appellants’ disobedience when the Respondent never applied to set same aside, citing Attorney-General, Ekiti State & ors. v. Daramola & Ors. (2003) 10 NWLR (Pt.827) 113. Counsel urged this Court to resolve issues three, four and six in favour of the Appellants.
RESPONDENT’S REPLY:
The learned Counsel to the Respondent submitted that the trial Judge properly evaluated the evidence before making findings in favour of the Respondent. Besides, the evidence adduced by the Respondent in the Court below was never discredited but rightly believed and acted upon by the learned trial Judge citing Eya & Ors. v. Olopade & Anor (2011) 199 LRLCN 93 at 99-100; Oparaji & Ors. v. Ohanu & Ors. (1999) 6 SCNJ 27 at 31; Olalomi Industries Ltd. v. NIDB Ltd. (2010) 178 LRCN 50 at 56; Foy vs. Yama & Co. V. Dascoli (Nig.) Ltd. (2011) 199 LRCN 1 at 5; Egharevba v. Osagie (2010) 180 (1) LRCN 75 at 80. That paragraph 2.12(f) on page 5 of Exhibit “PW1E provides that a staff, whose service had been confirmed and transferred from a former employer to the University, shall be deemed to be under pensionable employment. That this was admitted in paragraph 4 of the Statement of Defence. Admitted facts, learned Counsel submitted, need no further proof, citing Oseni vs. Bajulu (2010) LRCN 26 at 32 and Our Line Ltd. vs. SCC Nig. Ltd. (2010) 179 LRCN 154 at 161 Counsel submitted that the appointment of the Respondent was not an issue before the trial Court. Argument on the issue on appeal should be discountenanced by this Court, citing Adegbuyi v. Mustapha (2010) All FWLR (Pt.532) 1753 at 1783-1784 and Oloruntoba-Oju v. Abdul Raheem (2010) 178 LRCN 131 at 146. Counsel’s further argument was that the principles of fair hearing were not observed by the Appellants before the appointment of the Respondent was terminated. Counsel referred to Council of Federal Poly, Mubi vs. Yusuf (1998) 1 NWLR (Pt.533) 343 and Garba v. University of Maiduguri (1986) NWLR (Pt.18) 550 at 618 as holding that for every accusation an employee is to be given the right to be heard. That the Appellants did not employ the chosen channel of communication stipulated in the letter of suspension in sending Exhibit “DW1C” to him. By virtue of Exhibit “PW1K” the proper channel of communication was through the Acting Head of Department of Mathematics, Statistics and Computer of the 1st Appellant. Neither did Exhibit “DW1C” suggest any allegations for which the Respondent was to appear before the panel to answer. There was nothing on record to show that the said exhibit was brought to the Respondent but he spurned same. Apart from personal safety, the Respondent had been barred by the Appellants from entering the University premises. The Respondent had no notice of the allegations culminating in his termination, citing Oyeyemi v. Commissioner for Local Government supra page 666. Counsel further argued that the employer’s right to discipline an employee cannot override or diminish a subsisting order issued by a Court of competent jurisdiction, citing Mobil Oil Ltd. & Anor vs. Assan (1995) 32 LRCN 320 and Buhari v. INEC & Ors. (2009) 167 LRCN 1 at 42.
On the propriety or fairness of the termination of the Respondent’s appointment by the Appellants it was argued that the learned trial Judge was right to have entered judgment in favour of the Respondent in view of the subsisting exparte orders of the trial Court pending the determination of the suit, citing Governor Lagos State v. Ojukwu (1986) All NLR (Pt.1) 194, F.A.T.B. v. Ezegbu (1995) 6 NWLR (Pt.297) 1; Lawal-Osula vs. Lawal Osula (1995) 29 LRCN 52; Attorney-General Ekiti State & Ors. v. Daramola & Ors. (2003) 10 NWLR (Pt.827); Doma v. Ogiri (1998) 3 NWLR (Pt.541) 246. The Respondent did not need to commence contempt proceedings in the circumstances of this case to be entitled to judgment. Counsel urged that issues three, four and six be resolved against the Appellants.
REASONS FOR JUDGMENT: ISSUES THREE, FOUR AND SIX
The Respondent pleaded in paragraph 11 of the Amended Statement of Claim as follows:
“11. The Plaintiff states that the Defendants maliciously and audaciously terminated his appointment with impunity notwithstanding and in total disobedience to the restraining orders of this Honourable Court made on the 3rd day of February, 2003 and 24th day of June, 2003 in suits numbers FCH/UY/CS/145/2003 and FCH/UY/CS/190/2003, respectively that were still pending before the Court at the time this suit was instituted. The processes of the above suits including the Court orders were duly served upon the Defendants and they accordingly acknowledged receipts of the said processes and orders. The 3rd Defendant itself deliberated on the two Court orders in its 36th meeting held on the 9th and 10th December, 2003. The CTC of the court orders and the CTC of the said counter affidavit by the Defendants made on May 20, 2003 and the minutes of the 36th meeting of the 3rd Defendant held on 9th and 10th December, 2003 are hereby pleaded and shall be founded upon at the trial of this suit. The Defendants are hereby given notice to produce the original copy of the minutes at the trial of this suit.”
The Appellants did not specifically deny the above averments but pleaded in paragraph 8 of their Statement of Defence thus:
“8. The Defendants deny paragraph 11 of the statement of claim and state that his termination was not effected in contempt of any order of the Honourable Court”
A general traverse amounts to an admission, for a fact is deemed to be admitted if it is neither specifically denied nor denied by implication. See Owosho vs. Dada (1984) 7 SC 149; Folami vs. Cole (1986) 2 NWLR (Pt.22) 367. Paragraph 11 of the Amended Statement of Claim should have been taken as established at the hearing. I take it that the facts pleaded in paragraph 11 of the Amended Statement of Claim have been admitted by the Appellants. There is no evidence that the interim orders by the trial Court had not been discharged nor the learned trial Judge had completed hearing and judgment delivered before the Appellants embarked on their investigations. See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 at 10; Economides v. Thomopulus (1956) 1 FSC 7 at 9-10. If the conduct of the Appellants did not constitute a civil contempt, what was it? The learned authors of Blacks Law Dictionary, 9th edition page 360 define “Civil Contempt” as “The failure to obey a Court order that was issued for another party’s benefit.”On 29th December, 2003 a letter was addressed to the Respondent (Exhibit “DW1C”) in the following language:
“UNIVERSTITY OF UYO, December 29, 2003.
UU/REG/CNL/107/VOL.2/99,
Dr. E.P. Akpan,
Department of Maths/Statistics,
University of Uyo,
Uyo.
INVITATION TO APPEAR BEFORE THE JOINT COUNCIL AND SENATE COMMITTEE
I am directed to invite you to appear before the Joint Council and Senate Committee at its meeting scheduled for Wednesday January 7, 2004.
You are please requested to report to the committee in the University Council Chamber at 10:30am, on the said date.
Thank you.
Signed
Edak U. Umondak (Mrs.)
Secretary
Cc: Chairman
Senior Staff Disciplinary Committee
Engr. Yemi Dapo-Aisida).”
In Exhibit “DW1D” one O.N. Udoh Assistant Chief Security Officer addressed a letter to the Deputy Vice-Chancellor (Administration) as follows:
“UNIVERSITY OF UYO,
Assistant Chief Security Officer
January 6, 2004.
REF: UU/SEC/78/VOL.III/6
Deputy Vice-Chancellor (Administration).
DELIVERY OF OFFICIAL LETTER TO DR. E.P. AKPAN
I wish to formally report that on 5/1/2004, I made effort to deliver the official letter Ref. NO.UU/REG/CNL/107/Vol.2/99 issued to DR. E.P. Akpan as directed and I was seriously warned by Dr. Akpan never to collect any letter to him again otherwise he will sue me as a person and that I should be aware that there is a Court order to the university never to embarrass him through any agent. He added that my coming to him always with a letter amounts to such embarrassment as I am not a messenger and he had earlier warned me on that.
He further stated that the university should know the proper way to contact him not through me. He refused to collect the letter and the letter is still with me.
Please direct.
Signed
O.N. Udoh
Assistant Chief Security Officer
Copy: Registrar.”
In Exhibit Pw1 “1” namely the Counter-Affidavit of Mr. Udeme Monday Ikpatan, Assistant Registrar, Council Affairs of the University it was very clear that both the motions and orders by the lower Court were served on the Appellants. On 10th December, 2003 the University Council held her 36th Meeting and one of the items deliberated upon was the issue of the Respondent (See Exhibit Pw1 “J”) page 11. A briefing from the Legal Adviser of the University showed that the three cases the Respondent had instituted against the Appellants were still pending in Court. The Council was further alerted that there were orders prohibiting the University from investigating the case of certificate forgery against the Respondent. Another case involved enforcement of the Respondent’s fundamental rights and so forth. Nevertheless a panel was not only set up, the panel purported to invite the Respondent to appear before her failing which the Respondent’s appointment was terminated in flagrant disobedience to the three pending suits and exparte orders of injunction. Truly, all that the Appellants had done and continued doing was to disobey interim orders of the trial Judge pending the determination of the substantive motion and suits. The height of the disobedience culminated into the termination of the appointment of the Respondent on 22nd day of March, 2004 Exhibit “PW1F”) during the pendency of this suit. My humble view is that the Respondent was not bound to receive nor honor the letter (Exhibit “DW1C”) inviting him to appear before the Joint Council and Senate Committee for purposes of investigating any of the matters for which the learned trial Judge in the lower Court had stayed action pending the determination of the substantive motion or suits. The Appellants were lucky that the Respondent did not apply that they be committed for contempt having admitted service of the exparte orders of the learned trial Judge. A party may apply to the Court to set aside all the acts of disobedience by another party which borders on contempt or may await the outcome of the entire proceedings. What the Appellants did constituted contemptuous acts which the Court could have exdebito justiae set aside on application at each stage such an act occurred in the course of the proceedings. In J.E. Jones v. Securities and Exchange Commission 80 LED 298 US 1-33 Justice Sutherland of the Supreme Court of the United States of America held that:
“…The rule is well settled both by the courts of England and of this country, that where a suit is brought to enjoin certain activities for example, the erection of a building or other structure of which suit the defendant has notice the hands of the defendant are effectually tied pending a hearing and determination even though no restraining order or preliminary injunction be issued.”
This was cited with approval in Military Governor of Lagos State vs. Chief Emeka Odinmegwu Ojukwu & 1 Or. (1986) 1 NWLR (Pt.18) 621. Again in Doma vs. Ogiri (1998) 5 NWLR (pt.541) 246 Edozie, JCA (as he then was) held at page 265 paragraphs “F” that:
It seems to me clear that in the face of the suits instituted by the respondents against the government, that the government ought not to have set up the Panel of inquiry nor allowed it to proceed with the inquiry even though there was no order of injunction restraining it from doing so.”
Learned Counsel to the Appellants however relied on the case of The Attorney-General of Ekiti State & Ors. V. Prince Michael Daramola & Ors. (2003) 10 NWLR (pt.827) 113 to argue that the Appellants were not in contempt. Even if they were, there was no application by the Respondent to set aside the alleged acts of contempt. But in that case out of the three suits that had been instituted by the Plaintiffs, the interlocutory order was made in suit No.HCJ/24/1991 on 5th December, 1991 restraining the Ondo State Government from appointing warrant chiefs for the purpose of selecting a new Ajero of Ijero Ekiti until the order was discharged or the substantive suit was disposed whichever was earlier. There was evidence that the suit in which the order had been made had been withdrawn by the Plaintiff’s Counsel on 28th January, 1992. The order subsisted only from 5th December, 1991 to 28th January, 1992. Nevertheless, at page 159 to 160 paragraph “H” to “C” Ogundare, JSC held that:
“…Within this period it would be in contempt of Court if the Ondo State Government appointed warrant chiefs to appoint an Ajero of Ijero Ekiti, that is, of course, if the Government was served with, or knew of, the order. And the onus was on the plaintiffs to prove this.
The 1st defendant denied being served with the order. The plaintiffs, in proof of service, tendered exhibits U, Y and Y1 but did not call the persons that effected the service. I have examined exhibits U, Y and Y1. In my respectful view these documents did not prove conclusively that there was service on the Attorney-General of Ondo State as representative of the Government of that State. In the circumstance it would be erroneous to hold that the Government acted in contempt of Court when it appointed the 4th-7th defendants. The Court below was consequently in error to have so held. A person is not liable in contempt for acting contrary to an order of Court that is not served on him or brought to his notice. Husson V. Husson (1962) 3 All ER, 1056; 1 WLR 1434.”
Exhibit Pw1 “1” of 20th June, 2003 by Udeme Monday Ikpatan shows clearly that the Appellants were served with the exparte orders. The Council even deliberated on the matter in question. In this appeal the issue of contempt was pleaded in paragraph 11 of the Amended Statement of Claim. Issues were joined in paragraphs 8 of the Statement of Defence. Furthermore, in The Attorney-General, Ekiti State & ors. vs. Daramola & ors. Supra the Supreme Court stated at page 161 paragraph “H” to page 163 paragraph “A” as follows:
“No doubt the Court frowns on disobedience of its orders, particularly by the Executive branch of Government and has used rather harsh language, such as “executive lawlessness”, in describing such acts of disobedience. On the application of an aggrieved party, the Court has, in appropriate cases, not hesitated to exercise its coercive power to set aside such acts done in disobedience of its order and restore the parties to the position they were before such disobedience. See – Governor of Lagos State v. Ojukwu (supra). The rationale for this course of action by the Court is to ensure the enthronement of the rule of law rather than acquiesce in resort to self-help by a party. That was the course of action taken by the aggrieved party in some of the authorities cited by Mr. Akanle. The other authorities deal with illegality and the consequences of illegality. The Court also has power of sequestration and committal against persons disobeying its orders.
I think it is wrong to say that an act done in disobedience of a Court order is an illegality. The term “illegality” in my humble view, connotes an infraction of law. In Black’s Law Dictionary, 6th edition the word is defined – which definition I am in agreement with, thus:
“That which is contrary to the principles of law, as contradistinguished from mere rules of procedure.”
Turning now to the case on hand, the plaintiffs having obtained in suit HCJ/24/91 an interim injunction against the Government of Ondo State restraining the later from appointing Warrant Chiefs who, in turn, were to appoint the Ajero of Ijero Ekiti, ought to have ensured that the order was properly served on the Attorney-General (who was defendant in the case). If on being made aware, by service, of the order the Government proceeded to appoint Warrant Chiefs in disobedience of the Court’s order, plaintiffs should have moved in the case (that is, HCJ/24/91) for an order setting aside the appointment of the Warrant Chiefs and whatever action the chiefs would have taken subsequent to their appointment. Rather than take such a course of action, the plaintiffs instituted a new action, HCH/35/91 claiming reliefs set out in the earlier part of this judgment. And going through the reliefs sought by them in the new action, they did not even seek to set aside the appointment of the 4th – 7th defendants on the ground that their appointment was made in disobedience of Court order of injunction. It was the Court below that proceeded to grant them the reliefs they did not claim. I think this is wrong – see: Ekpenyong v. Nyong (1975) 2 SC 71, 80 where this Court reiterated the principle thus:
“Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the Court is without the power to award to a claimant that which he did not claim.”
But in this case the Respondent sought in paragraph 35(e) of the Amended statement of claim “AN ORDER compelling the defendants to withdraw, the aforesaid letters captioned “TERMINATION OF APPOINTMENT” with reference number UU/REG/76/vol.1/103, dated March 22, 2004 and “Suspension from the University” with reference number UU/REG/S/15/S.1/VOL.1/403 dated June 09, 2003, and issued by the hand of the 2nd defendant and to reinstate the Plaintiff forthwith and pay to him forthwith with effect from when his appointment was terminated, all salaries and allowances and other material and non-pecuniary benefits that are due and accruing to him before, during and throughout the period his appointment was terminated and throughout the period he was unlawfully suspended.”
The Respondent did not withdraw the applications/suits in which the exparte orders were made; he did not file a new suit or suits; the same suits were pending when the Appellants suspended and subsequently terminated Respondent’s appointment. The learned trial Judge did not suo motu grant reliefs to the Respondent. They were pleaded in paragraph 35(e) of the Amended Statement of Claim and proved at the hearing. In my view the learned trial Judge was right in this circumstance to have used this acts of contempt as one among the many reasons to enter judgment for the Respondent. The case of The Attorney-General, Ekiti State & ors. v. Daramola & Ors. supra has no application to the facts before the Court of trial nor on appeal. Was good cause shown by the Appellants for terminating the appointment of the Respondent? I do not think so. Paragraph 2.21 of Exhibit Pw1 “E” reads as follows:
“2.21. The appointment of any member of the academic staff or administrative and technical staff may be terminated for good cause by the Council, provided that:
(a) The appointment of a member of the academic staff who holds an appointment until retiring age shall not be determined by the Council unless there has been an investigation relating to his cause by a Joint Committee, nominated by the Council and the Senate of which Joint Committee, at least one third of the members have been appointed by Senate and the person concerned has, if he so requests, been permitted to appear to defend himself in person or through his chosen representative before the Joint Committee, and the report of the Joint Committee has been considered by the Senate and then by the Council which shall take an appropriate decision on the case.
2.22 For the purpose of sub-section 2.21 above “good cause” means;
(a) Conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharging of the functions of his office;
(b) Any physical or mental incapacity which the council after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office;
(c) Conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office;
(d) Conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms of conditions of his service.”
There is no allegation in Exhibit Dw1 “C” of 29th December, 2003 why the Respondent was invited to appear before the Joint Council and the Senate Committee at its meeting scheduled for Wednesday, 7th January, 2004. In Exhibit Pw1 “K” of 9th June, 2003 it is clearly stated that Council received a report of alleged forgery of certificate proffered against the Respondent for co-signing a National Diploma from Jekens computers for one Emem Anthony Edet. Forgery constitutes criminal allegations under Section 497 of the criminal code cap 38 Laws of Akwa Ibom State of Nigeria vol.2, 2000 page 205. There is no evidence that the police investigated and prosecuted the Respondent for the alleged forgery. Neither is there evidence that any Court of competent jurisdiction tried and found the Respondent guilty of forgery for which he should have been terminated from office. Under paragraph 2.25 of Exhibit PW1 “E” suspension from office is permissible “where a prima facie case (the nature of which is serious) has been established” and which amounts to a “misconduct.” No cogent and verifiable reasons were adduced in Exhibit Pw1 “F” for terminating the appointment of the Respondent, an employee who had put in 29 years in the service of the Appellants; an employee whose appointment was protected by Act No.11 of 1993. The only reasons given in Exhibit Pw1 “F” for the termination of the Respondent’s appointment was that the University Council at its 37th Meeting held on Tuesday, March 17, 2004 decided that the Respondent’s services were no longer required in the best interest of the University. There is no evidence that the report the Appellants received and deliberated upon on 9th June, 2003 to suspend the Respondent emanated from the police who had conducted an independent investigation into the allegation of Certificate forgery proffered against the Respondent. One is left to conjecture the reasons that led to the termination of the Respondent’s employment with the 1st Appellant by the 3rd Appellant. The Appellants had to exercise disciplinary control of suspension and termination of the Respondent in accordance with the provisions of paragraph 2.21 of the Regulations, “…for good cause by the Council” as defined under paragraph 2.22(a)-(d) and paragraph 2.23-2.25 of the said Exhibit Pw1 “E”.
The Appellants have no jurisdiction to investigate, prosecute and adjudicate over criminal allegations such as forgery. That is the exclusive preserve of the law Courts. See section 36(4) and 6(a)(e) of the constitution of the Federal Republic of Nigeria, 1999 as altered; Biishi v. JSC (1991) 6 NWLR (Pt.197) 331; Garba v. University of Maiduguri 1 NWLR (Pt.18) 550; Adeniyi v. Yaba College of Technology (1993) 7 SCNJ (Pt.2) 304 and Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 ALL NLR 306. The Respondent’s vested and accrued rights could not be taken away without a prior hearing. See Oyeyemi v. Commissioner For Local Government Kwara State (1992) 2 SCNJ (Pt.2) 266 and Wilson V. Attorney-General, Bendel State (1985) 1 NWLR (Pt.4) 572. Both the suspension and termination are not in consonance with the provisions of The Regulations Governing The Senior Staff Conditions of Service, 1998. I resolve issues three, four and six against the Appellants.
APPELLANTS’ ISSUE FIVE:
The learned Counsel attacked the award of N500,000.00 (five hundred thousand Naira) cost against the Appellants as lack of proper exercise of judicial and judicious discretion, citing Sharp vs. Wakefield (1891) A.C. 173 at 197; Herson vs. Thompson and Sons Ltd. (1913) 1 KB 587 at 589. That it was never part of the Respondent’s claim that cost of this action should be borne by the Appellants. Counsel referred to the reliefs sought in paragraph 35 of the Amended Statement of Claim and the following authorities, Delta Steel (Nig.) American Computer Technology in (1999) 4 NWLR (Pt.597) 53; P.H.M.B.U. vs. Utomi (1999) 13 NWLR (Pt.636) 572 and Boni Jumbo vs. Jitta (1999) 12 NWLR (Pt.639) 2. It was argued that costs of action are never to be employed as punitive measures nor as bonuses to the successive party, citing Akingbola v. Plisson Fisco Nig. Ltd. (1991)2 LRCN 414; Layinka v. Makinde (2002) 98 LRCN 1139 at 1143; Nigerian Bank for Commerce and Industry & Anor v. Alfijir (Mining) Nig. Ltd. (1999) 73 LRCN and a host of other authorities. Learned Counsel urged that issue five be resolved in favour of the Appellants. On the whole this Court was urged to allow this appeal and dismiss the Respondent’s suit before the lower Court.
RESPONDENT’S REPLY: ISSUE FIVE
Learned Counsel submitted that the learned trial Judge was correct in awarding N500, 000.00 costs to the Respondent having regard to Order 25 rule 2(1) and 7 of the Federal High Court Rules, 2009. That this Court should not interfere with the exercise of the discretion to award costs. The discretion is vested in the learned trial Judge, citing P.H.M.B. v. Utomi (1999) 13 NWLR (Pt.636) 572 and Nzeribe v. Dave engineering Co. Ltd. (1994) 8 NWLR (pt.361) 142 at 148-149. It was further submitted that the Appellants have not shown any principle for awarding cost that was infringed by the learned trial Judge. Reference was made to Ekaegwu vs. Nigerian Army (2011) 191 LRCN III at 115; Ayuyu v. Yorin (2011) 199 LRCN 143 at 152; Amaechi v. INEC (2008) 10 WRN; D.B. Ltd. vs. Partnership Ind. Co. Ltd. (2010) 179 LRCN 84 at 92; Gabari v. Ilori & 7 Ors. (2002) 14 NWLR (Pt.786) 78 and Oyegun v. Nzeribe (2010) 180 LRCN 50 at 55 as authorities that even where a party has not asked for a specific relief the Court can make consequential orders such as award of costs in the party’s favour. Counsel urged that issue five be resolved against the Appellants.
REASONS FOR JUDGMENT: ISSUE FIVE
His Lordship, upon delivery of judgment, ordered thus, “Cost follow events the Defendants are to bear the cost of this action which I assess at N500, 000.00 only.” See page 808 lines 14-15 of the printed record.
In Black’s Law Dictionary, 9th edition page 397 “cost” means “the amount paid or charged for something; price or expenditure.”
Order 25 rule 2(1)-(3) of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows:
“2(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been unnecessarily put in the proceedings, as well as compensated for his time and effort in coming to Court. The Judge may take into account all the circumstances of the case.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.
(3) When the Judge deems it to be impracticable to determine summarily the amount of any costs which the Judge has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a taxing officer for taxation.”
It is for the trial Judge to determine the costs including the expenses to which the successful party in the litigation has been unnecessarily put in the proceedings. Secondly, the award of cost is to compensate the successful party for his time and effort in coming to Court. This is to be quantified in terms of Naira and Kobo calculations by the trial Judge but definitely not an appellate Court. These factors are only within the province of the trial Judge to determine at the time of delivery of judgment. Therefore, the term “costs” includes “compensation” for the time and efforts one makes in coming to Court. See Order 25 rule 2(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009. But when the Judge deems it impracticable to determine summarily the amount of costs to be adjudged or ordered to be paid, the matter is to be referred to a taxing officer not to the Court of Appeal. In my humble view the intention of the lawmaker is to discourage unnecessary, frivolous or vexatious litigations or litigations which could have been avoided by the unsuccessful party, for example if the parties had made attempts to settle the dispute out of Court or by alternative means at less expense to either party. The adjective “unnecessary” means “not needed or more than is needed” or “not required under the circumstances; not necessary.” see Longman Dictionary of Contemporary English, New Edition page 1812 and Black’s Law Dictionary, 9th edition page 1678. The suspension and subsequent termination of the appointment of the Respondent, an Associate Professor of Mathematics who had put in 29 years in service with no good cause was unnecessary, not required nor called for in this circumstance. The conduct of the Appellants led to this unnecessary and protracted litigation. The Respondent was entitled to costs that ought to compensate him for his time and effort in coming to Court to vindicate his grievances. Order 25 rule 7 of the Rules supra provides that:
“7. Subject to the provisions of any applicable law and these Rules, the costs of and incidental to all proceedings in the Court… shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.”
The learned Counsel to the Appellants has not referred to any law or provisions of the Federal High Court (Civil procedure) Rules, 2009 or the substantive Act that if the N500,000.00 cost awarded by learned trial Judge is subjected to, it would be found to have infringed, or that his Lordship did not exercise his discretion judicially and judiciously. In my humble opinion all the authorities cited by the learned Counsel to the Appellants should be read subject to the provisions of Order 25 rules 2(1)-(3) of the Rules supra. Even those authorities recognize that good reasons may exist for awarding costs of this nature. See Nigerian Bank for Commerce and Industry & Anor. v. Alfijir (Mining) Nigerian Ltd. (1999) 73 LRCN 3599.
In Gabari vs. Ilori & 7 Ors. (2002) 14 NWLR (Pt.786) 78 at page 102 paragraph “H” to page 103 paragraphs “A-B” the Court of Appeal expressed the following views, per Salami, JCA (as he then was):
“…The award of costs in Nigerian Court to a successful party is grossly inadequate as it hardly takes into consideration his solicitor’s fee which is spiraling in recent time because of dwindling value of the national currency, the Naira. The inflationary trend in the economy should respectfully be taken into account in the award of costs in our Courts. In the result the award of cost in the court below is not liable to setting aside contrary to the contention of the appellant.”
At page 103 paragraph “G” to page 104 paragraph “A” of the same judgment Mohammed, JCA held as follows:
“I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses.
Unquestionably, the award of costs by the Court to the successful party falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercised judicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts as contained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not be denied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, the defeated party may not be damnified in costs. See: Akinbobola v. Plison Fisko (1991) 1 SCNJ 129 at 131 also reported in (1991) 1 NWLR (Pt 167) 207. As a general principle therefore, it may be said that costs are in the discretion of the court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, an appellate court is without power to interfere with such honest exercise of the Court’s discretion.”
The above observation of my learned brother has been taken care of in Order 25 rule 2(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009.
The Appellants’ learned Counsel has not adduced sufficient and cogent reasons to warrant this Court to interfere with the N500,000.00 (five hundred thousand Naira) cost awarded the Respondent by the learned trial Judge. I resolve issue five against the Appellants.
On the whole this Appeal lacks merit and is dismissed. I award N50,000.00 cost to the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother Joseph Tine Tur, JCA, in this appeal. His lordship has comprehensively considered the six (6) issues submitted by the Appellants for determination in such a way that no material point was left for further useful comment therein. I do not intend to merely repeat the vital views expressed and the conclusions so soundly reached in the lead judgment, but would agree and adopt them as mine. In the result, I join in dismissing the appeal for lacking in merit and make the same order on costs of the appeal as contained in lead Judgment.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA. He had painstakingly dealt with the issues articulated by the Appellants. I have nothing more to add. The Appeal is dismissed for the reasons in the lead Judgment. I abide by all the consequential orders contained there in.
Appearances
Mrs. Jane ObongFor Appellant
AND
Nsikak E. EffiongFor Respondent
