VISITOR, IMO STATE UNIVERSITY & ORS v. PROF. INNOCENT CHUKA OKONKWO & ORS (2014)

VISITOR, IMO STATE UNIVERSITY & ORS v. PROF. INNOCENT CHUKA OKONKWO & ORS

(2014)LCN/6823(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of February, 2014

CA/OW/263/2011

RATIO

WHETHER AN ACCUSED MUST BE GIVEN OPPORTUNITY TO CROSS-EXAMINE WITNESSES

A person who appears as a witness before a panel be it Judicial or Administrative cannot be indicted or accused of impropriety bordering on crime or other misconduct unless he is given adequate opportunity of being heard in his defence either orally or in writing. Where witnesses appear and give evidence against such a person he must be afforded opportunity to debunk such allegations and Cross examine the witnesses. See UNTMB vs HOPE NNOLI (1994) 8 NWLR (PART 363) 376 at 419 BC and PHMB VS MRS DORIS EDOSA (2001) 5 NWLR (PART 207) 612 at 655 G-H. Per PETER OLABISI IGE, J.C.A.

WHETHER A COURT CAN AWARD A CLAIMANT RELIEFS NOT CLAIMED BY HIM OR HER

There is no doubt that the law is settled that a Court cannot award to a Plaintiff or Claimant reliefs not claimed by him or her. The parties as well as the Court also bound severely by the pleadings of the parties. See the case of AFRICAN CONTINENTAL SEAWAYS LTD VS NIGERIAN DREDGING ROAD AND GENERAL WORKS LTD (1977) 5 SC 235 AT 246 – 250 per IREKEFE JSC who said:

“The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.” Per PETER OLABISI IGE, J.C.A.

WHETHER THE ISSUANCE AND SERVICE OF PRE-ACTION NOTICE IS A CONDITION PRECEDENT TO GRANTING A COURT JURISDICTION TO ADJUDICATE ON A MATTER

The issuance and service of Pre-action Notice is mandatory and an intending Plaintiff/Claimant must comply with it. It must be stated however that a Claimant’s right of access to Court is not thereby curtailed but will be put on hold or in abeyance pending when he would comply in order to fulfill the condition precedent to giving the court the desired jurisdiction to adjudicate on the matter. See CHIEF B. E. NNONYE vs. D. N. ANYICHIE (2005) 1 SC M 133 AT 145 – 146. Per PETER OLABISI IGE, J.C.A.

EFFECT OF THE FAILURE OF A DEFENDANT TO GIVE EVIDENCE AT THE TRIAL

A Defendant who fails to testify in support of his Pleadings is taken to have abandoned all the averments contained in his Statement of Defence. See FCDA VS ALHAJI MUSA NAIBI (1990) 3 NWLR (PART 138) 270 at 281 A-G per NNAMANI, JSC

“It is elementary that where a Defendant fails to give evidence at the trial, his Statement of Defence is deemed abandoned. This is because pleadings, by their nature and character, cannot speak. They speak through witnesses and as long as a party refuses or fails to call witnesses to articulate their content, they remain dormant process in the Court’s file.

As a matter of law, they are moribund and no Court of law is competent to resuscitate or revive them since the Appellants did not call evidence in support of their Pleadings as the onus or burden of proof on the Claimant would be discharged on minimal proof. See A. A. AJIDAHUN VS D. O. AJIDAHUN (2000) 4 NWLR (PART 654) 605 at 645 per GALADIMA JCA now JSC who said:

“Where the Defendant does not call evidence at trial, the onus of proof on the Plaintiff will be discharged on minimal proof. See AMA VS UBA PLC (1997) 4 NWLR (Pt.498) 181 of 189. The evidence before the Court has not been challenged or contradicted by the Appellant.”Per PETER OLABISI IGE, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. VISITOR IMO STATE UNIVERSITY

2. THE COUNCIL IMO STATE UNIVERSITY

3. PRO CHANCELLOR/CHAIRMAN THE COUNCIL IMO STATE UNIVERSITY

4. IMO STATE UNIVERSITY

5. PROFESSOR A. N. OKERE

(ACTING VICE CHANCELLOR IMO STATE UNIVERSITY) – Appellant(s)

AND

PROF. INNOCENT CHUKA OKONKWO

AND

1. GOVERNOR, IMO STATE

2. ATTORNEY-GENERAL, IMO STATE

3. HONOURABLE COMMISSIONER FOR EDUCATION, IMO STATE

(PARTIES AFFECTED) – Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of Imo State High Court of Justice Holden at Owerri contained in the judgment of Hon. Justice NONYE OKORONKWO delivered on 3rd day of February, 2011. The facts leading to this Appeal are legion.

The Respondent herein Professor Innocent Chuka Okonkwo was by a letter dated the 21st day of October, 2005 appointed the Vice Chancellor of Imo State University by the then Governor of Imo State Chief (Dr) Achike Udenwa for a five year tenure term.

By another letter dated 26th day of October, 2005 the Imo State University vide his Pro Chancellor wrote to the Respondent informing him of approval of his appointment as the Vice Chancellor of Imo State University and congratulated him.

The Respondent was in office for three years and 2 months when another Governor of Imo State set up visitation Panel to investigate the affairs of the Imo State University of which the Respondent was a Vice Chancellor for the period beginning from 2004 – 2008.

The Respondent was before the Panel as a witness and he gave evidence before the panel. The panel eventually submitted its report to the Imo State Government who came out with its white Paper on the visitation Panel’s Report which indicted the Respondent and accused him of misconduct.

The then Governor of Imo State as the visitor of the Imo State University by a publication contained in the Imo State of Nigeria Gazette No. 2 Vol. 35 dated 10th July, 2009, the Respondent was relieved of his post as the Vice Chancellor of Imo State University. The Public Notice reads:

“Imo State University Law, 2004 (Law No. 5 of 2004)

In exercise of the powers conferred on me by section 17 of the Imo State University Law, 2004 and all other powers enabling me on that behalf, I, Chief IKEDI OHAKIM, Visitor of Imo State University do hereby remove professor Innocent C. Okonkwo as Vice Chancellor of Imo state University on ground of misconduct.

Dated at Owerri this 10th day of July, 2009.

CHIEF IKEDI OHAKIM Visitor Imo State University”

In apparent follow up of the removal of the Respondent as Vice Chancellor the Imo State University on 15th July, 2009, wrote two separate letters to the Respondent. One retired him from the services of Imo State University Owerri, with immediate effect and the second letter which was in the same vein in addition directed that the Respondent should refund to Imo State University the sum of N55 Million. As would be expected the Respondent instituted action against the University and persons including the Visitor, the Governor of Imo State and Attorney General of Imo State claiming thirty-four (34) reliefs against the Defendants contesting his removal and other actions taken against him by the University. He sought for reinstatement to office as the Vice Chancellor of the University and a declaration that the Visitation Panel Report and his retirement be declared null and void. He also claimed N500, 000.000.00 (Five Hundred Million Naira) Damages from the Defendants. See pages 1037-1045 of the Record as quoted in the judgment of lower Court.

Pleadings were duly filed and exchanged by the parties and the matter proceeded to trial at the end of which trial the Learned trial Judge delivered a considered JUDGMENT on 3rd day of February, 2011 and declared as follows:-

“i. The Proceedings of the Visitation Panel in so far only, as it affects the Claimant as well as the recommendations, findings and Government comment thereon contained in chapter III Pages 6, 7 and 8 of the Government White Paper on the report of the Visitation Panel into the affairs of Imo State University from 2004 till date are void, nullity and of no legal effect.

ii. The Claimant was entitled to continue as Vice Chancellor Imo State University up to 21st October, 2010 and is entitled to emoluments of his office as such up to 21st October, 2010.

iii. The retirement of the Claimant as Academic staff i.e. Professor of Imo State University is void.

iv. The Claimant is entitled to continue as Professor of Imo State University and shall be entitled to his emoluments in that regard.

v. The 1st, 2nd, 4th, 5th and 7th Defendants are hereby ordered to restore the Claimant to his employment as Professor of the 6th Defendant.

vi. The 2nd, 3rd, 4th, 5th and 6th Defendants are restrained from withholding due salaries and other emoluments of the Claimant.

Concerning the claim for damages, it seems to me that the effect of the reliefs above serve to restore the Claimant to his original position save for the effluxion of his term as Vice Chancellor. Thus restoring the claim for damages would appear to be superfluous.”

The 2nd, 4th, 5th, 6th and 8th Defendants now Appellants and the Respondent were aggrieved by the judgment of the learned trial Judge.

The Appellants filed Notice and Grounds of Appeal dated 3rd day of February 2011 filed on the same date consisting of six Grounds. The said Grounds of Appeal without their particulars are as follows:-

“1. GROUND ONE: MISDIRECTION IN LAW

The Learned trial judge misdirected himself in law when he held that;

“Only the 1st, 3rd and 7th Defendants called evidence.”

2. GROUND TWO: ERROR IN LAW

The Learned trial Judge erred in law when he held that:

“My view of the matter is that there had been an appointment of Vice Chancellor by the 2nd Defendant before the approval by the 1st Defendant.

3. GROUND THREE: ERROR IN LAW.

The Learned trial Judge erred in law when he placed the burden on the Appellants to call the Visitor to prove that he did not make the appointment of Vice Chancellor.

4. GROUND FOUR: ERROR IN LAW

The learned trial judge erred in law when he held that non-issuance and service of Pre-action Notice was not duly presented for determination of the Court.

5. GROUND FIVE: ERROR IN LAW.

The learned trial Judge erred in law when he proceeded to award reliefs to the Claimant outside the reliefs which he claimed on record.

6. GROUND SIX: ERROR IN LAW

The Learned trial Judge erred in law when he held that the Claimant was denied fair hearing.

As stated herein before the Respondent too was aggrieved by some part of the Judgment. Respondent filed Amended Cross Appeal containing three (3) Grounds. They will be dealt with when I come to consider the Cross Appeal of the Respondent.

The Appellants filed their Appellants’ Brief of Argument dated 31st day of March, 2012 on 12th day of April, 2012. Respondent’s Brief of Argument dated 9th May, 2012 was filed on 12th May, 2012.

This Appeal was heard on 13th day of November, 2013 when Learned Counsel to the parties adopted their briefs of argument.

The Appellants distilled five (5) issues for determination of the Appeal viz:

“(i) Whether the trial Court was right when it held that the Appellants did not call evidence at the trial (GROUND 1)

(ii) Whether the trial Court was right when it held that the Claimant was appointed to the office of vice chancellor by the visitor to the University? (GROUNDS 2 and 3)

(iii) Whether the trial Court was right when it held that non-issuance and service of Pre-action Notice was not duly presented for determination? (GROUND 4)

(iv) Whether the trial Court was right when it awarded reliefs to the Claimant which the Claimant did not claim in his Pleadings and Writ Of Summons? (Ground 5)

(v) Whether the trial Court was right when it held that the Claimant was denied fair hearing? (GROUND 6)”

The Respondent on his part formulated five issues which are as follows:-

(a) Was the learned trial Judge right when he held that for the Defence only the 1st, 3rd and 7th Defendants called evidence via Ambrose Ahamefule Duru, Secretary of the Visitation Panel? (GROUND 1)

(b) Was the Learned trial judge right in holding that the Respondent was validly appointed Vice Chancellor of Imo State University? (GROUNDS 2 & 3)

(c) Did the Appellants challenge and impugn the issuance and service of Pre-action Notices duly served on the Appellants (GROUND 4)

(d) Did the Learned trial Judge award the Respondent reliefs did not claim in his Statement of Claim? (GROUND 5) of the grounds of Appeal.

(e) Was the Learned trial judge right in holding that the Respondent was denied fair hearing in his retirement as academic Staff and removal as Vice Chancellor of Imo State University? (GROUND 6 of the grounds of Appeal).

I am of the view as can be seen from the two sets of issues formulated, that the five issues raised by the Respondent can be assimilated into the five issues formulated by the Appellants. I will therefore opt for a consideration and determination of the Appeal on the five issues formulated by the Appellants. They will be treated seriatim.

ISSUE 1

WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE APPELLANTS DID NOT CALL EVIDENCE AT THE TRIAL?

The Appellants stated that they relied as pleaded by them on the documents tendered by the Respondent. They relied on page 757 of the Record of Appeal and on the Cross Examination of the Respondent contained on pages 1133 – 1135 of the Record. That the Respondent and his witness was cross examined and that evidence elicited from them under Cross Examination supported the Appellants’ pleadings. Attention was drawn to page 1050 of the Record wherein the trial Court said no evidence was called to prove the averments in the pleadings of 2nd, 4th, 5th, 6th and 8th Defendants that the Claimant was not appointed Vice Chancellor. I must quickly point out that the finding is on page 1051 of the Record and not 1050.

The Learned Counsel to the Appellants argued that the Court’s finding does not reflect the evidence on Record as according to them they duly joined issues with the Respondent on the validity of his appointment and that the Appellant allowed all his documents to be admitted without objection particularly Exhibit CW7. That under Cross Examination the Respondent stated that Exhibit CW7 conveyed approval of Respondent as Vice Chancellor. That Respondent said he could not remember if there is any other document of appointment to him as Vice Chancellor. That it was wrong for the trial Judge to place burden of proving validity of Respondent’s appointment on the Appellants since it was the Respondent that challenged the termination of his appointment. That he owed the duty to tender evidence to prove valid employment. He relied on the cases of:

1. NITEL PLC VS AKWA (2006) 2 NWLR (Pt.964) 391 at 414 C-E.

2. AMODU VS AMODE (1990) 5 NWLR (Pt.685) 356 at 367-568 H-A, 370 JF 3; AJAO VS SONOLA (1973) 8 SC 119 at 123.

That a party can by Cross Examination elicit evidence from opponent as a means by challenging his case. He cited the case of (FORLETE VS THE STATE (2000) 12 NWLR (Pt.681) 415 and GAJI Vs PAYE (2003) 8 NWLR (PART 825) 583 at 60 E.

That appointment of Respondent cannot be valid by virtue of Exhibit CW7 which Appellants described as mutual evidence for Appellants and Respondents on page 6 of Appellant’s Brief. The reason given by the Appellant for so submitting is that under the Imo State University Law No 5 of 2004 the Governor of Imo State is not empowered to appoint a Vice Chancellor to the University. That the power is expressly vested in the “Visitor” to the University. That Imo State is not a Department of Government. He relied on the case of A-G BENDEL STATE VS AIDEYAN (1989) 4 NWLR (PART 118) 646 AT 671-672 H-A

Appellant Learned Counsel urged this Court to resolve issue 1 in favour of Appellants.

In his reaction the Learned silk to the Respondent stated that the Respondent/Claimant duly pleaded that he was appointed the Chancellor of the Imo State University by the 1st and 2nd Defendants i.e. 1st party affected by the Notice of Appeal. That Exhibit CW7 was tendered by Respondent to show that Governor Achike Udenwa was the then Executive Governor of Imo State and Visitor of Imo State University. That Respondent under Cross Examination stated that Exhibit CW7 conveyed approval of his appointment as Vice Chancellor. That the Respondent called evidence on Oath but the Appellants did not call evidence on Oath and did not tender any documentary evidence to discharge the burden upon them to prove that Respondent was not appointed Vice Chancellor. That the evidence of Respondent is deemed admitted. They cited the cases of:

1. OBMIAMI BRICK & STONE (NIG) LTD VS. A.C.B. LTD (1992) 3 NWLR (Pt.228) 260 at 293 – 294 per OLATAWURA, JSC

2. OFOMATA VS COMMISSIONER FOR EDUCATION (1995) 8 NWLR (Pt.411) 69 at 81 per ATINUKE IGE, JCA of blessed memory.

3. OBO VS COMISSIONER FOR EDUCATION, BENDEL STATE & ANOR (1993) 2 NWLR (Pt.273) 46 at 61 per AKPABIO J.C.A. and

4. AKIBU VS RACE AUTO SUPPLY CO. (2000) 14 NWLR (PART 686) 190 at 207.

The Respondent submitted that the finding of trial Court that only 1st, 3rd and 7th Defendants called evidence was correct.

The Appellants want this Court to believe that they have joined issues with the Respondent on the validity of his appointment as Vice Chancellor and that the Appellants elicited from the Respondent that the only basis of his appointment as (Vice Chancellor of Imo State University is Exhibit “CW7.” To the Appellants, the Respondents who challenged his termination have the burden of tendering evidence of valid employment.

The law is now firmly settled that the initial onus of proof is on the Claimant. It is after the Claimant or the Plaintiff has introduced evidence capable of belief by the Court or Tribunal that onus will shift on the Defendant to disprove the Claim or claims of the Claimant or Plaintiff. Therefore depending on the preponderance of evidence each side has a bounding duty to prove facts asserted in the Pleadings.

I call in aid the case of ALIYU BALOGUN VS ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 A per OPUTA J.S.C. who said

“Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of Claim and on the Defendant to prove what he averred in his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the scale mentioned in ODOFIN & ORS VS MOGAJI & ORS (1978) 1 LRN 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates”

The burden of proof is not static but oscillates between the Plaintiff or Claimant and the Defendant. Thus by the rules of pleadings any allegation made by a party in the affirmative or in the negative forms essential part of the party’s case and proof thereof rests squarely on the party making it. See Sections 131 – 138 of the Evidence Act 2011. Each side must support his Pleading with credible evidence thereafter the oral and documentary evidence placed before the Court would then be put on the imaginary scale by the court to determine the winner.

In this matter the Plaintiff/Claimant gave oral evidence and tendered numerous documents to sustain his pleaded case. The Claimant and another person testified in support of his case. They were Cross examined.

The Learned trial judge found that the Appellants called no evidence to show that the Respondent was not appointed the Vice Chancellor of the Imo State University. I have perused the printed report and found that the Appellants did not call evidence to support the averments in the Appellants pleading. The implication of this is that the Appellants rested their case or defence on the case and evidence of the Claimant at the trial. A Defendant who rests his case on that of the Plaintiff will be bound by the credit and debit situation in the Claimant’s evidence as proffered before the trial Court. Such a party will sink or swim with the Claimant’s evidence. See the case of CHIEF S. L. DUROSARO VS I. A. A. AYORINDE (2005) 3 SCM 14 at 25 per NIKI TOBI, JSC who held:

“Although the Respondent evidence as to the criminality involved in Exhibit “F” the Appellant did not deem it necessary to give evidence. He rather rested his case on that of the Respondent. The legal implication is that the Appellant will stand or fall by the evidence of the Respondent and he fell in the two Courts below and he is also falling here.”

I am not oblivious of the submission of learned Counsel to the Appellants that they elicited evidence from Claimant and through Cross Examination of each of the witnesses called by other parties to prove the assertion in their Statement of Defence. A close perusal of the Record of Appeal does not support the submission of the Appellants. The pieces of evidence given by the Claimant’s witnesses including Claimant and the evidence of DW1 actually supported the pleaded case of the Claimant. There is nothing in the evidence elicited under Cross Examination of the Claimant by Appellants’ Learned Counsel showing any jot of evidence to support or establish any of the facts pleaded in the Statement of Defence of the Appellants earlier in this judgment. Under Cross Examination of the Respondent by Learned Silk for the Appellants, he told the Court on pages 1133-1134 thus:

“I see Exhibit CW71. It conveys approval of my appointment as Vice Chancellor. I do not remember if there is any other document of appointment to me as Vice Chancellor. I am conversant with the Imo State University Law. I appeared before the Visitation Panel, I submitted a Brief on the general standard of the Imo State University. See pages 20-60, it relates to me by my name. A number of persons were invited to testify. I was invited to testify on the first day but I was asked to return to my office as the Panel would invite me again, subsequently several persons testified and said much about me but I was never invited again.

I was not present when any other witness testified before the panel. I got letters to the effect that the bursar would appear before the panel. I did not appear with the bursar

Put: You were never appointed the Vice Chancellor at IMSU.

Ans: I was duly appointed following the process of the Law i.e. IMSU No.5. The bursar keeps financial records. I was asked by a letter to take my accumulated leave. By the time I had spent 3 years in office – the leave accumulated was 3 months.

Put: You were removed for misconduct.

Ans: I was not invited by the Panel to respond to the allegations against me.”

From the above evidence given under Cross Examination by the Claimant against the Appellants the Appellants had a duty to call evidence to show the contrary. This they never did.

The evidence of DW1 called by the 1st, 3rd and 7th Defendants under Examination In-Chief to the effect that:

“The Plaintiff appeared before the Panel and was given opportunity to present his case” was destroyed under Cross Examination of DW1 by Amaechi Nwaiwu S.A.N., Learned Senior Counsel to the Respondent. These are part of what he said under Cross Examination. Viz

“The first person to testify before us was Ubaku Ndubisi. The plaintiff was not present when Ubaku testified. The Plaintiff testified as in pp 20-60, other witnesses testified from pages 61-376. Altogether we received oral evidence from about 150 persons. At the time those witnesses testified, the Plaintiff was not present. The Plaintiff only came when we needed him”

Page 1139 of the record. Evidence of DW1 on behalf of the Governor of Imo State (1st Defendant), Attorney – General of Imo State (3rd Defendant and 7th Defendant (the Commissioner for Education Imo State) the Appellants did not consider it necessary to call evidence to prove the weighty allegations contained in their Statement of Defence including assertion that Claimant was not validly appointed as Vice Chancellor. A Defendant who fails to testify in support of his Pleadings is taken to have abandoned all the averments contained in his Statement of Defence. See FCDA VS ALHAJI MUSA NAIBI (1990) 3 NWLR (PART 138) 270 at 281 A-G per NNAMANI, JSC

The trial Court cannot be faulted when he held:

“Indeed no evidence was called to prove the averment in the Pleadings of the 2nd, 4th, 5th, 6th and 8th Defendants that the Claimant was not appointed Vice Chancellor.”

See T. LAWAL OWOSHO & ORS VS M.A. DADA (1984) N.S.C.C. 568 at 577 per ANIAGOLU, JSC who said:

“I now deal with (ii) above, namely, the failure of the Defence to adduce evidence being one of the factors in this case which I said should constantly come to mind. It is an elementary principle in civil proceedings that civil cases are decided on a balance of probabilities based on preponderance of evidence. Where the Plaintiff has given evidence and called his witnesses as in this case the Plaintiff called three witnesses a trial judge would certainly be left with little choice on the issue of the acceptance of the facts adduced in evidence by the Plaintiff. Except in a case where the Defence has, by vigorous and pin-pointed Cross-Examination of the Plaintiff and his witnesses, manifestly demolished the case of the Plaintiff, a Defendant obviously takes enormous risk in proceeding on a course of not adducing evidence to counterbalance the evidence of the Plaintiff. Otherwise, on what material is the trial judge to balance his probabilities? This Court restated the proper approach to be followed, by a court, in employing the imaginary scale of justice in these words in MOGAJI & ORS VS ODOFIN & ORS (1978) 4 S.C. 91 at 93-94.”

Issue one is hereby resolved against the Appellants.

ISSUE II

WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE CLAIMANT WAS APPOINTED TO THE OFFICE OF VICE CHANCELLOR BY THE VISITOR TO THE UNTVERSTY? (GROUNDS 2 AND 3)

The Appellants stated that the exact wordings of Exhibit ‘CW7″ which the Respondent entirely relied on as his Letter of Appointment has been set out in their Brief. They relied on page 1048 of the Record.

It is the position of the Appellants that only the Visitor of the University is competent to appoint a person to the office of Vice-Chancellor of Imo State University. The Appellants are also contending that the office of Governor of Imo State exists qua the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as the functions of the Governor are spelt out in the Constitution. They are of the view that though it is one human person that holds the office of the Governor of Imo State as well as that of the visitor the office of the Governor is not the same as the office of the Visitor. They relied on the following cases viz:

1. OKARA VS NDIL (1989) 4 NWLR (Pt. 118) 700 at 716 A-B

2. ANYA VS IYAYI (1993) 7 NWLR (PART 305) 290 315 per KARIBI-WHTE JSC.

3. DAVID OSUAGWU VS A.G. ANAMBRA STATE (1993) 3 NWLR (Pt. 285) 13

4. EMUZE VS V.C. UNIBEN (2003) 8 NWLR (Pt.828) 378 at 399 A-D

The Learned Silk to the Appellants argued that any appointment of the Respondent by any other person than the Visitor of the University is void and incapable of conferring any right or benefit to the Respondent upon which he could found a valid claim. Reliance was placed on the cases of:

MACFOY VS U.A.C. (1962) A.C 152 at 160 and (2) MADUKOLU VS NKEMDILIM (1962) 2 SC LNR 341.

Section 2(1) of the 1st Schedule to Imo State University Law No.5 of 2004 was also founded upon. According to D.C. DENWIGWE S.A.N for the Appellants all the cases cited to support the position of the Appellants are decisions of this Court and that they conform with historical origin of the office of Visitor to a University. Reference was also made to the address they rendered before the lower Court at pages 935-940 and 1049 of the Record. That when a statute has expressly prescribed how an act is to be done it excludes all other modes of doing the act. Appellants relied on the following cases:-

1. UDEAGHA VS OMECARA & ORS (2010) 11 NWLR (Part 1204) 168 at 205.

2. PROVOST L.A.C.O.E.D VS EDUN (2004) 6 NWLR (PART 870) 476 at 506 4 and 500 D-F

3. NIGECEM CO. LTD VS NRC (1992) 1 NWLR (PART 220) 747 at 758.

4. AMAECHI VS INEC (2008) 5 NWLR (Pt.1080) 227 at 317 – 318 F-B

5. F.B.N. PLC VS ABAHAME (2008) 18 NWLR (pt.1180)

6. UDOWE VS UGWU (1997) 3 NWLR (PART 491) 57 at 63.

That the Learned trial Judge held that the legitimate appointment of the Respondent must have taken place before the conveyance of the approval in Exhibit “CW7”. The Appellants are of the opinion that the finding of the trial Court bordered on speculation which they contended is beyond the jurisdiction of the trial Court. They cited the following authorities namely:

1. ABALAKA VS MINISTRY OF HEALTH (2006) 2 NWLR (Pt. 963) 105 at 129 A-C

2. ANPP vs. R.O.A.S.D (2005) 6 NWLR (PART 920) 140 at 178 F-G

2 IGABELE VS THE STATE (2006) 6 NWLR (Pt. 975) 100 at 119 F-F and (Pt.975) 100 at 119 F-F and

3 ALAMIEYESEIGAA VS F.R.N. (2006) 186 N.W.L R. (Pt. 1004) 1 at 102 F

That right from the outset the onus was on Respondent to produce evidence of his valid appointment as a condition precedent to challenge his removal relying on the case of AJAO VS SONOLA (SUPRA)

That the Respondent pleaded that his appointment as Vice Chancellor of the university is directly governed or regulated by Imo State University Law No.5 of 2004. That now that the Appellants have challenged the validity of Respondent’s appointment, there is a heavier onus of Respondent to produce document or evidence to point that the Visitor to the University appointed him in accordance with the Imo State University Law.

That it is when he has discharged the burden that Exhibit “CW7′ can convey the approval of the appointment. That Exhibit “CW7” is plain and explicit as according to Appellants it conveyed appointment made by the Executive Governor of Imo State.

It is further submitted by Appellants that the trial Court was wrong in going outside the plain words contained in Exhibit CW7 to import appointment by Visitor into Exhibit “CW7” Appellants relied on the case of UGWU VS ARARUME (2007) 12 NWLR (Pt.1048) 367 at 438-439 per NIKI TOBI JSC. To the Appellants the government has no role to play in the appointment of the Vice Chancellor.

That the Respondent only relied on a presumption that the Visitor is the same person as the Governor. That the Governor and the Visitor were joined as Defendants and that “The Visitor as a Defendant to the Suit denied the appointment and challenged the Respondent by so doing to produce evidence of the appointment.

In Response to the Appellants’ submissions on issue II, the Respondent relied on paragraph 11 (a) and (b) of his Statement of Claim wherein he pleaded he was appointed Vice Chancellor of Imo State University on 21-10-2005 by the 1st Appellant and 1st Party affected by this Appeal for a term of five years and that the appointment is regulated by Imo State University Law No.5 of 2004. He relied on Section 16 (1) of the said Law tendered as Exhibit 2 as stating that the Governor shall be the Visitor of the said University. That Exhibit, CW7 1, dated 21/10/2005 conveyed the approval of Respondent’s appointment as Vice Chancellor and that was by the then executive Governor of Imo State Chief (Dr.) Achike Udenwa. That the Governor acted not under the Constitution of Nigeria 1999 as Governor of Imo State but as Visitor of Imo State University pursuant to Imo State University Law. That there is no mistake of any sort just because the word ‘Visitor’ was not used in Exhibit “CW7 1.” Respondent relied on the cases of

(a) AWOLOWO VS SHAGARI (1979) 6-9 SC 51 at 90-92

(b) AQUA LTD VS ONDO STATE SPORTS COUNCIL (1980) 4 NWLR (PT 340) 597 AT 617.

OKUDO NO.2 (1990) 4 NWLR 551 and MINISTER FOR WORKS VS. THOMAS NIGERIA LTD. (2003) 2 NWLR (Pt.572) 700.

That the Letter of Appointment was tendered without objection by the Appellants and it speaks for itself and that no oral evidence can be used to vary Exhibit “CW71” relying on the cases of UBN LTD vs OZIGL (1994) 3 NWLR (pt.333) 385 and UBN LTD VS NWAOKOLO (1995) 6 NWLR (Pt.400) 272. That the trial Judge was right in upholding the appointment.

The Respondent submitted that the Appellants should not be allowed to approbate and reprobate on the validity of appointment of the Respondent when 1st Appellant on Exhibit CW41 the Gazette No2 Vol. 35 dated 10/7/2009 removed the Respondent as the VICE CHANCELLOR OF IMO STATE UNIVERSITY and when the Respondent was acknowledged and addressed as Vice Chancellor of Imo State University in Exhibits CW9, CW10, CW11, CW12, CW14 and CW15 respectively. He also relied on pages 140, 141, 146 and 147 of the Record of Appeal. That the Letter of Appointment of Respondent as Vice Chancellor was not challenged at the trial by the Appellants. That it is now too late in the day for the Appellants to raise it as new issue. He relied on the following cases:-

1. OMOREGBE VS LAWANI (1980) 3-4 SC 180 AT 117

2. EGBUNIKE VS ACB (1995) 2 NWLR (Pt.375) 34.

3. BROADLINE ENTERPRISES LTD VS MONIROY MARTIME CORPORATION (1995) 9 NWLR (PART 417) 1 AT 27

4. YESUF VS KUPPER INTERNATTONAL N.V. (1996) 5 NWLR (Pt.446) 17

That the trial court was entitled to rely on the Letter of Appointment since it was not objected to. He cited SAKARE VS BELLO (2003) 849 at 159 at 171. That by Section 148 of the Evidence Act the Court is to presume the genuineness of every document purporting to be official document or Gazette of Imo State of Nigeria. That Exhibit CW41 the said Gazette is prima facie proof of the genuineness of Exhibit CW7.1. That it confirms the appointment of the Respondent as Imo State University Vice Chancellor. That since the Appellants did not counter claim that the Respondent was not the Vice Chancellor as aforesaid, they cannot contest the validity of Respondent’s appointment by the Appellants. OLUBODUN VS LAWAL (2008) 17 NWLR (PART 1115) 1 at 37 per ADEREWU JSC. The Respondent submitted that the cases of OKARA VS NDILI SUPRA, DIMUZE VS UMBEN cited by Appellants are not applicable to the facts and circumstances of this case. That all submissions made on pages 11-13 of Appellants Brief of Argument are unnecessary because His Excellency Achike Udenwa acted as Visitor of Imo state University. That the Appellants led no evidence to show the contrary.

The Respondent urged this Court to resolve issue II in favour of the Respondent.

Now the Appellants have challenged the validity of appointment of the Respondent on the ground that he was not validly appointed in that the then Governor of Imo State instead of the Visitor to Imo State University purportedly appointed the Respondent as the Vice Chancellor of Imo State University. The meaning of this is that the Respondent was never a Vice Chancellor, Imo State University.

The procedure for appointment of a person to the office of Vice Chancellor, Imo State University is spelt out in the Imo State University Law No.5 of 2004. The relevant sections or provisions of the said law as applicable can be found in section 6, 8(1) (a) (b) (c) and 2 of the Imo State University Law and paragraphs 2, 3, 4, 5 and 6, of 1st schedule to the said Imo State University Law.

The Visitor who is empowered under schedule 1 of the said Law to appoint the Vice Chancellor is described in section 16 (1) of the said Law thus:

“16(1) the Governor of Imo State shall be the visitor of the University.”

The law does not stop there. It also ascribes meaning to the words the Governor” used in Section 16(1) of the Imo State Law Section 2 which is the Interpretation section of the Law which states that “The Governor” means the Governor of Imo State.” The provisions of the sections and the First Schedule of Imo State University Law are to be considered or read together so as to discern who can appoint and give Letter of Appointment to a Vice Chancellor appointed under the provisions of the said law.

It has long been settled that provisions of a Constitution or statute must be construed literally giving the words in such Constitution or statute their ordinary grammatical meanings. In ascertaining the true meaning of the provisions of a statute or the Constitution, the Constitution and the statute being interpreted must be read as a whole and construed so. See

1. ACTION CONGRESS AC & ANOR VS INEC (2007) 12 NWLR (PART 1048) 222 at 259 B-D where KATSINA-ALU JSC later CJN (Rtd) had this to say:

“it is necessary to bear in mind that the Electoral Act 2006 is a subsidiary legislation which operates side by side with the 1999 Constitution. Both the Constitution and the Electoral Act shall be read together in order to give effect and meaning to the rights and obligation of individuals. It is settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the con of the Constitution or a statute as a whole. Therefore, in construing the provisions of a section of a statute the whole of the statute must be read in order to determine, the meaning and effect of the words being interpreted. See Buhari & Anor v. Obasanjo & Ors (2005) 13 NWLR (Pt.941) 1 at 219. But where the words of a statute are plain and unambiguous, no interpretation is required; the words must be given their natural and ordinary meaning.”

(2) RT. HON. ROTIMI CHIBUIKE AMAECHI vs. INEC & ORS (2008) 5 NWLR (PART 1080) 227 at 314 H 1080 PER OGUNTADE, J.S.C.

I have no doubt in my mind that a community reading of the identified Sections and provisions of the Imo State University Law show that it is the council of the University that must set the process of appointment of a Vice Chancellor in motion. Thereafter the joint Council and Senate Selection Board of the University shall recommend to the University Council four candidates for further consideration. The Council is at liberty to select three candidates from among the candidates recommended to it by the joint Council and Senate Selection Board of Imo State University which may in its wisdom lists the said three candidates in order of preference for appointment as Vice Chancellor to the Visitor who is the Governor of Imo State. The Visitor (i.e. the Governor of Imo State) will then in his absolute discretion appoint as vice Chancellor of the Imo State University any of the three candidates recommended to the Visitor in accordance with the provisions of sub-Section 4 of first Schedule to the Imo State University Law. Upon such an appointment, the person appointed as the Vice Chancellor of Imo State by the Visitor, the Governor of Imo State shall hold office for a term of five (5) years.

The Respondent has adequately pleaded all relevant facts including Letter of Appointment in paragraphs 1, 6, 7, 8, 9, 10, 11, 12 and 13, of the Respondent’s Statement of Claim (Pages 10-27 of the Record.) Though the Appellants categorically denied paragraph 11 of the Claimant’s (Respondent’s) Statement of Claim, the Appellant did not deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12 of the said statement of claim in their Statement of Defence contained on pages 757-760 of the record.

It must be stated also that the Respondent filed Reply to the Statement of Defence of the Appellant See pages 767-773 of the Record.

The Respondent testified at the lower Court and adopted his witness Statement on Oath and tendered all letters relevant to his appointment including so many letters wherein the Appellants referred throughout and addressed the Respondent as the Vice Chancellor, Imo State University.

The letter appointing the Respondent as the Vice Chancellor Imo State University Exhibit CW7.1, reads:

“OFFICE OF THE SECRETARY TO THE STATE GOVERNMENT

……..

………”

“The Pro-Chancellor and Chairman Governing Council Imo State University Owerri.

APPOINTMENT OF VICE CHACELLOR FOR IMO STATE UNIVERSITY OWERRI

I am directed by his Excellency the Executive Governor of Imo state chief (Dr) Achike Udenwa to convey his approval of the appointment of Prof I. C. Okonwo as the new Vice Chancellor of Imo State University Owerri with immediate effect.”

The letter was written at the behest of the Governor of Imo State at the material time and was duly signed by the Secretary to the Imo State Government.

As a further confirmation or attestation to the appointment of the Respondent as the Vice Chancellor, the Pro-Chancellor of the University, His Royal Highness Eze Godwin O. Okuaka, MFR wrote to the Respondent as follows:

26th October, 2005

Our Ref. IMSU/PC/10/05

Professor I. C. Okonkwo

Vice Chancellor,

Imo State University

Owerri.

APPOINTMENT OF VICE CHANCELLOR FOR IMO STATE UNIVERSITY, OWERRI.

We forward herewith, for your information and necessary action, copy of letter No. SGT/5.0929/T.3/104 of 21 October, 2005, from the secretary to the state Government conveying approval for your appointment as the new vice chancellor, Imo State University, Owerri, with immediate effect’

Hearty Congratulations, Once more.

sgd.

HRH, Eze Godwin O. Okuaka, MFR Pro-Chancellor & Chairman, Governing Council.”

All subsequent letters to the Respondent within and outside the University had always referred to the Respondent as the Vice chancellor. It’s pertinent to state also that in the Gazette where the removal of the Respondent was published, the visitor and Governor of Imo State referred to Respondent as the Vice Chancellor.

The presumption here is that all the steps laid down and procedures in paragraph 2 (1) 2(6) of First Schedule to the Imo state university Law for appointment of the Respondent were fully complied with., See 149 of the Evidence Act 2004 LFN now section 167 of Evidence Act 2011 which provides:

“The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the fact of particular case…”

The argument of the Appellants which harped a lot that the Respondent was never validly appointed as the Vice Chancellor of the State University on 21-10-2005 is hollow, hair-splitting and devoid of any merit.

Since the Appellants failed to give evidence in support of their Statement of Defence contesting the validity of the Respondents appointment as Vice Chancellor the entire defence of the Appellants as contained in their Statement of Defence were moribund and deemed abandoned. See CHIEF AUGUSTINE NDULUE & ANOR VS IGWE MICHAEL O. OJIAKOR & ORS (2013) 8 NWLR (PART 1256) 311 at 338 per ALAGOA, JSC who said:

“It is trite law that where a party in a case either fails to give evidence in his case as disclosed in his pleadings or fails to challenge the evidence of his adversary or opposing party, he is deemed to have accepted the evidence of the opposing party notwithstanding the general traverse. There is a plethora of case law on this subject matter.”

There is overwhelming evidence before the Court pointing positively to the fact that the Visitor actually appointed the Respondent the Vice Chancellor of Imo State University Owerri.

By the provisions of the Imo State University Law No.5 of 2004 earlier referred to the words-

“The Governor of Imo State” and the words “the Visitor of the University” can be used inter-changeably. Whenever the Governor of Imo State is mentioned in relation to the affairs of the Imo State University there is no doubt that such reference the Governor had equal force as of the Visitor of the University being referred to. That is the only plausible reasoning or logic one can gather from the tenor of Imo State University Law and the documents tendered by the Respondents. They leave no one in doubt as to the validity of the appointment. See Section 7 of the Evidence act.

The mere fact that Exhibit CW7.1, mentioned the Governor instead of visitor does not affect the validity of the letter as appointing the Respondent as the Vice Chancellor and does not render the appointment invalid. The letter Exhibit CW7.1, enjoyed presumption of regularity under Section 150(1) of the Evidence Act 2004 LFN now Section 168(1) of Evidence Act 2011. It Provides:

“168(1) when any judicial act or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with.”

In any event the Respondent was in the office of Vice Chancellor performing the functions of that office before he was peremptorily and unlawfully removed from the office of the Vice Chancellor on the unsubstantiated allegation of misconduct. The Respondent was all the time from 21/10/2005 in that office for over two years before the unlawful removal. The appointment is presumed valid within the purview of Section 6 (2) of the Imo State University Law. See also Section 150(2) of the Evidence Act 2004 LFN now Section 168 (2) of the Evidence Act which provides thus:

168 (2) when it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled to so act.

Issue II is hereby resolved against the Appellants.

ISSUE III

WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT NON-ISSUANCE AND SERVICE OF PRE-ACTION NOTICE WAS NOT DULY PRESENTED FOR DETERMINATION BY THE COURT (GROUND 4)

It is the argument of the Appellants that the learned trial Judge failed to accede to their contention before the Lower Court that the Respondent did not serve valid Pre-action Notice before the institution of this Suit leading to this Appeal. It is the contention of the Appellants that the failure rendered the suit of the Respondent incompetent ab initio. Attention of this court was drawn to the holding of the trial court as contained on pages 1050-1052 of the Record wherein according to the Appellants the learned trial judge held that the Appellant’s did not duly raise issue of non issuance and service of a valid Pre-action Notice. Reference was made to the Pleadings of the parties as contained on pages 753-765 and 767 – 769 of the Record. That the reliefs sought by the Claimant now Respondent could be found on pages 21-27 of the Record.

The Appellants stated that the trial court did not decide that the notice was duly issued and served. That the Pre-action Notice pleaded by the Respondent did not include the 1st Appellant who was 2nd Respondent at the trial Court. That in the purported Pre-action Notices served only 19 reliefs were contained therein as against the 34 claimed in the Respondent’s writ of summons and pleadings. Appellants placed reliance on Pre-action Notices Exhibits CW17, 18 and CW19 respectively as tendered by the Respondent.

Reliance was placed on the cases of AJOA v SONOLA & ANOR (1973) 8Sc, 119 at 123 and GAJI V. PAYE (2003) 8 NWLR (PART 823) 583 at 603E that the Notices issued by Respondent were not served on the Vice chancellor or by hand personally on the Registrar of the university and that none was issued for service on the visitor to the University whereas the acts complained of in the suit are the acts of the visitor. That since the reliefs in the purported Notice were 19 as against the reliefs eventually sought on the writ of summons, the Appellants contended the Notices did not meet the mandatory requirements of Section 22 (1) & (2) of the Imo State University Law No.5 of 2004.

It is the submission of the Appellants that statute forbids the court from granting a relief to a Claimant who did not give a Pre-action Notice of the reliefs he intended to claim to a Claimant. The Appellants are of the view that Exhibit CW17 CW18 and CW19 cannot be the notices contemplated by Section 22 of the Imo State Law supra. An avalanche of cases cited are:

1. AMADI vs. NNPC (2000) 10 NWLR (Pt. 674) 76 at 110-111-B-B per KARIBI-WHYTE JSC

2. NGELEGLA VS TRIBAL AUTHORITY NONGOW KINGDOM (1953) 14 WACA 325 at 327.

3. UNIVERSITY OF IFE VS. FAWHINMI CONSTRUCTION CO. LTD (1991) 7 NWLR (PT.201) 26.

4. NNPC VS FAWEHINM (1998) 7 NWLR (Pt.4559) 598 at 615 A – C

5. O.A.U. ILE – IFE VS R. A OLIYEDE & SONS LTD (2001) NWLR (Pt.712) 450 at 416 C-E

6 EZE VS OKECHUKWU (2002) 18 NWLR (PT.799)

That in this Case the trial Judge reformulated the reliefs it granted to the Respondent notwithstanding that they are different from those set out by the Pre-action Notice. That Pre-action Notices are in the nature of limitation statutes which when applied destroys the otherwise competent suit. Reliance was placed on the following cases viz:

1. OLAGUNJU vs. PHCN PLC (2011) 10 NWLR (Pt.1254) 113 at 126, 129 – 130.

2. Owners MV ARABELLA VS. NAIC. (2008) 11 NWLR (Pt. 1097) 182 at 210 C-D and D-E.

3. CHUKWU vs. AMADI (2012) 4 NWLR (Pt.1289) 136 at 168 D- E.

That the mode of service contained in Section 22 of the Imo State University Law was not complied with. He relied on the cases of NNB Plc VS. BENGAG (2005) NWLR (Pt.916) 549 at 574 G – H and AMADI. NNPC supra at 107 C – E. That Appellant has challenged the competence of the suit in paragraph 1 of the Defence and relied on Respondent’s documents to demonstrate non compliance by Respondent and as such there was no element of surprise to warrant the reliance placed on the case of METALIMPEX VS. AG. LEVENTIS & CO. NIG. LTD. (1976) 1 SC 91.

On issue 3 the Appellant urged this court to uphold Appellants’ objection to the competence of the suit.

In his short reply to the Appellants’ contention on issue of Pre-action Notice the Respondent drew attention of the court to the fact that the Appellants did not raise the issues of issuance and service of Pre-action Notice in their pleading and as part of their case. That they did not object at the hearing. That Respondent was not cross examined on the point at the trial and Appellants did not call any witness at the Lower Court to contradict or challenge the Claimant Respondent on the issue. That Respondent duly pleaded and tendered the Pre-action Notices as Exhibits CW17, CW18 and CW19 as contained on pages 151, 157 and 163 of the record of Appeal. That the Pre-action-Notice was duly served on the Appellants. That since the Appellants never challenged the Respondent on an alleged non service of Pre-action Notice and did not lead any evidence in that behalf, this Court should presume that they had adequate notice of the suit to enable them decide whether to settle with the Respondent as according to Respondent that is the whole essence of Pre-action Notice. He relied on the case of IRIRI VS. ERHORBUBI (1991) 2 SCNJ 1 at 8 – 9 and the following cases were also cited vis.

1. METALIMPEX VS. A – G. LEVENTIS & CO. NIG. LTD. (1976) 1 SC 91.

2. NIPC VS. THOMPSON ORGANISATTON & ORS (1969) NMLR 99.

3. YASSIN VS. BARCLAYS BANK & CO. (1968) NMLW 380.

4. KATSINA LOCAL AUTHORITY VS. MADUKAWA (1971) P 9 (sic).

5. NTIERO VS. NPA (2008) 10 NWLR (PT. 1094) 129 AT 148.

6. NWONYE VS. ANYICHIE (2005) 2 NWLR (PT.910) 629 and

7. Order 15 Rule 6 of Imo State High court civil Procedure) Rules.

Respondent relied on the finding of the trial Judge on the issue of the Pre-action Notice and urged this Court to resolve this issue in favour of the Respondent.

The entire spectrum of the Appellants argument under issue 3 borders on the competence and validity of the Respondent’s action. The Appellants’ position is that the Respondent failed to issue and serve Pre-action Notice on the Appellants as prescribed by Sections 22 and 23 of the Imo State Law, No. 5 of 2004. The law needs no restatement that where an action is incompetent, a Court of law will have no jurisdiction and competence to adjudicate on the matter. The Court is under legal obligation to determine such question at the earliest opportunity. See the GOVERNOR OF KWARA & ORS VS. J. O. DADA (2011) 7 SCM 119 at 129 D – E PER FABIYI, JSC.

Sections 22 and 23 of the Imo State University Law 2004 heavily relied upon by the Appellants provided thus:

“22(1) (a) No suit shall be commenced against the University or any of its bodies until at least one month after written notice of intention to commence same shall have been served on the Vice Chancellor by the intending Plaintiff or his agent.

(b) The notice shall clearly state the cause of action, the particulars of claim, the name and place of abode by the intending Plaintiff and the reliefs he claims.

2. No suit against the University or the visitor or against any of its bodies or against any member, officer or employee thereof in respect of any act, neglect or default done or omitted to be in his capacity as such, shall be instituted in any Court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damage, or injury within three months immediately after the cessation thereof, so however that any notice served pursuant to sub-section(1) of this section shall be deemed to be commencement of such proceedings.

23. Any notice or other instruments authorised to be served upon the University under the provisions of this Law or any other Law may unless in any case, where there is express provision to the contrary, be served by hand on the Registrar personally.”

The whole essence of a Pre-action Notice is to lay bare to the Defendant the nature of a contemplated action against him/her, by an intending Claimant/Plaintiff so as to afford the said Defendant an opportunity to decide whether he would settle or contest the action proposed against the Defendant. See AMADI VS. NNPC (2000) 10 NWLR (Part 674) 76 at 110 – 111 per KARIBI – Whyte JSC. It is a condition precedent to institution of some actions where the statutes creating or setting up an institution or body expressly prescribes it and being a condition precedent it must be complied with to clothe an action with validity or competence. SEE CHIEF JAMES OKANGI & ANOR vs. MR. BAYO FATOBA OF ILASO STREET ARA – EKITI & ORS (2012) 7 NWLR (PART 1299) 266 AT 291 A – B per Abba Ajji, JCA (PJ) said’,

“the law merely stipulates condition to be met before an action can be instituted in court. What then is the effect of non-compliance with a condition precedent? The answer that readily comes to mind is that non-compliance by a person means not being legally empowered to institute an action before a Court of competent jurisdiction”

The learned trial judge found in this matter that the complaint about the non issuance and service of Pre-action Notice made by the Appellants was not properly submitted by the Appellants for adjudication. The trial Court said on page 1053 lines 9 – 23 of the record viz:

“In this case, there is no pleadings whatsoever of lack of notice or insufficiency of notice or lack of service thereof of any such condition precedent in the absence of pleading, it appears doubtful whether it can just be raised even by motion. What is more, the Claimant testified and said he issued and served statutory notices. He was neither challenged on it nor was any contrary evidence given. In my view where a Pre-action Notice is required, it is a matter of fact whether, in any given circumstance that condition has been fulfilled.”

The Appellants claimed that the issue concerning non-issuance or insufficient issuance and service of the Pre-action Notice was pleaded by them and they also relied on the pleading of the Respondent and that an examination of Exhibits CW17, 18 and 19 are enough to found in favour of the Appellants.

The Respondent pleaded in paragraph 43 of this statement of claim thus:

“The Claimant served on the 4th, 5th and 6th Defendants one month Notice of intention to commence this suit served on the Ag. Vice Chancellor by the Claimant and the relief he claimed on 10/8/2009 duly received and acknowledged. The Notices served clearly stated the cause of action, the particulars of claim, the name and place of abode of the intending Plaintiff and the relief he claims. The Claimant shall at the trial rely on the notice or copies thereof served on the 4th, 5th and 6th Defendants. The 4th, 5th and 6th Defendants and hereby given Notice to produce the Notices served respectively on them dated 10/8/2009 at the trial.”

The Appellants dwelt so much on paragraph 1 of their Statement of Defence as pleading the incompetence of the action for non issuance and service of Pre-action Notice. They also complained in their Brief of Argument that the Vice Chancellor was not served by hand personally and that the visitor whose acts the Respondent complained of was not serve any notice of intention to sue him.

I think it is apposite here to reproduce paragraphs 1 and 2 of the Statement of Defence relied upon by the Appellants in order to bring to fore whether or not they pleaded any fact concerning issuance or non service of Pre-action Notice on the Appellants.

The said paragraphs of their pleadings read:

“1. The Defendants shall contend that this suit is not competent.

2. The Claimant is not the Vice Chancellor of the Imo State University, He was never duly appointed to that office. The Defendants shall rely on the purported Letter of Appointment which the Claimant front loaded. The 1st Defendant on record was never empowered by any statute to appoint the Claimant to the office of Vice Chancellor of the Imo State University. Paragraph II of the Statement of Claim is denied.”

There is nothing in paragraphs 1 and 2 of the Statement of Defence of the Appellants contesting any fact or issue relating to issuance of Pre-action Notice by the Respondent or the failure to serve same in accordance with Section 22 and 23 of the Imo State University Law No.5 of 2004. The Respondent testified and adopted his Witness Statement on Oath thereby shifting the onus on the Appellants to show that facts pleaded in paragraph 43 of the Respondents statement of claim were untrue. This they never did. The Appellants also have a duty to plead the facts concerning defects in the Pre-action Notice served on the vice chancellor and that its issuance and service were improper. The evidence of the Respondent on the issue was not Challenged and the learned trial Judge was bound to accept and relied on it as he did in holding that the Appellants made no issue of it in their pleadings and they did not lead contrary evidence against the Respondent on the issue. See ISAAC OMOREGBE VS D. P. LAWANI (1980) 3-4 SC 108 at 117 where Idigbe JSC said:

“Again, this Court has in manly of its decisions observed that where evidence given by a party to any proceedings was not challenged by the opposite party who had opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it”

Issue of Pre-action Notice is matter of the Pleading and evidence: It cannot be raised outside of the Pleading and evidence. The Learned trial Judge cannot be faulted. See B. E. NNOYE VS D.N. ANYICHIE & ORS (2005) 2 NWLR (Pt. 910) 623 at 647 D – H to 648 A where AKINTAN JSC had this to say:

“It may be mentioned that the effect of no service of a Pre-action Notice, where it is statutory required as in this case is only an irregularity which however, renders action incompetent. It follows therefore that the irregularity can be waived by a Defendant who fails to raise it either by motion or plead it in the Statement of Defence. See KATSINA LOCAL AUTHORITY VS MAKUDAWA (1971) 1 NMLR 100…”

Appellants are deemed to have waived their right to complain over Pre-action Notice in this matter. I am of the firm view that the Pre-action Notices, Exhibits CW17, CW18 and CW19 served by the Respondents on the Appellants adequately complied with Sections 22 and 23 of the Imo State University Law No.5 of 2004. See AMADI VS NNPC (2000) 10 NWLR (Part 674) 76 at 99 E-H to 100 A per KARIBI – WHYTE JSC.

I am not oblivious to the complaint of the Appellants also saying that the Visitor, the 1st Appellant was not served with Pre-action Notice and that the acts complained of in the suit are the acts of the Visitor. The argument of the Appellants cannot be sustained because by Section 16(1) of the Imo State University Law, 2004 the Governor of Imo State is the Visitor of the Imo State University. The Governor of Imo state was sued in the action as 1st Defendant and was represented by a Legal Practitioner at the Lower Court. He with the 3rd and 7th Defendants filed joint Statement of Defence and the Governor who doubles as the Visitor of Imo State University did not complain of non service or issuance of the Pre-action Notice on him. The 1st Appellant cannot in this Appeal or at the Court below split himself to create impression that he was not the Governor of Imo State concurrently with the office of the Visitor to the Imo State University,

In that wise the service of the Pre-action Notice on the Imo State University constituted service on the Visitor of the said University. Whenever the name visitor is mentioned in the con of the Imo State University affairs or matters the clear signal is that the Governor of Imo State is the person being referred to. See CHIEF ADERIBIGBE JEOBA VS OSHO OWONIFARI (1974), NSCC 402 AT 406. The Visitor does not exist independently of the Imo State University.

I therefore find that the complain and attack of the Appellants on the finding of the learned trial Judge on the issue of Pre-action Notice is clearly unfounded and has no basis in law. Issue three (3) is resolved against the Appellants.

ISSUE IV

WHETHER THE TRIAL COURT WAS RIGHT WHEN IT AWARDED RELIEFS TO THE CLAIMANT WHICH THE CLAIMANT DID NOT CLAIM IN HIS PLEADINGS AND A WRIT OF SUMMONS (GROUND …)

The Learned Counsel to the Appellants stated that the learned trial judge decreed in favour of the Respondents reliefs he did not claim in his writ of summons and statement of claim. Reference was made to the pages 21-27 of the record as to the reliefs sought by the Respondent.

The Learned Senior Counsel to the Appellants submitted that a superior Court of Record is never a charitable Organization whose functions include to award benefits to parties as of grace. He relied on the cases of ADENJI VS ADENJI (1972) 4 S.C. 10 (2) EKPENYONG VS NYONG (1975) VOL. 9 NSCC 28 (3) ADETON OLADENJI (NIG) LTD VS N.B. PLC (2007) 5 N.W.L.R (Pt. 1027) 415 at 438 – 439 H-A 441 A-B, 444 G-H.

That the Learned trial Judge had expressed displeasure with the reliefs which the Respondent claimed as nebulous. The Appellants are contending that having described the relief of the Respondent as nebulous and the Respondent failing to amend his pleadings, then the trial Judge should have struck out the reliefs sought. According to the Appellants, the reliefs the lower Court granted are not set out in the purported Pre-action Notices, Exhibits CW17, CW18 and CW19.

That the Learned trial Judge cannot re-couch the reliefs as he did to enable him do a favour to the Respondent.

That the trial court never afforded Appellants the opportunity to address it on whether or not it could reframe the Respondent’s reliefs thus denying the Appellants fair hearing to that extent. The Appellants therefore submitted that the reliefs so granted are void because and denial of fair hearing occasioned a miscarriage of justice. Reliance was placed on the case of ARIORI ELEMO (1983) 1 SC 13. The Court is urged to decide the issue in favour of Appellants.

In reply to the submission of Appellant, the Respondent maintained that what the trial Judge granted as reliefs are within and contained in the statement of Claim and writ of summons. That what the Judge did was a remarkable narrowing down and summary of the reliefs for his own convenience.

That contrary to the submissions of Appellants, a Court has jurisdiction to summarise claims or issues raised by parties so as to be guided by the substance of the case as in this Appeal.

In effect a Court/tribunal must not indulge in the habit of granting reliefs not sought from the court or tribunal See AGIP vs AGIP (2010) 5 NWLR (PART 187) 346 at 427 B where FABIYI J.S.C held:

“It is pertinent at this point to express it clearly that a Court should not grant a prayer that is not contained in a motion paper. See CHIEF R. A. OKOYE VS. SANTILLI & ORS (1990) 2 NWLR (Pt.131) 172 at 205. By extension a Court should not award that which was claimed. This is because a Court is not a charitable organisation.”

I think it is pertinent to reproduce what the learned trial Judge awarded in favour of the Respondent on pages 1069 – 1010 of the record thus:-

“I have at the outset complained about the nebulous nature of the claims in this case numbering 34 in all each of which resembles and dovetails into the next. Much as the Claimant has made out a case for judicial intervention I shall not follow the pattern of claims set out by the Claimant but be guided by the substance of the claims.

(i) The proceedings of the Visitation Panel in so far, as it only affects the Claimant as well as the recommendations, findings and government thereon contained in Chapter III pages 6, 7 and 8 by the Government white paper on the report of the Visitation Panel into the affairs of Imo State University from 2004 till date are void, null and of no legal effect.

(ii) The Claimant was entitled to continue as Vice Chancellor Imo State University up to 21st October, 2010 and is entitled to emoluments of this office as such up to 21st October, 2010

(iii) The retirement of Claimant as academic staff i.e. professor of Imo State University is void.

The Claimant is entitled to continue as Professor of Imo State University and shall be entitled to his emoluments in that regard.

(iv) The 1st, 2nd, 4th, 5th and 7th Defendants are hereby ordered to restore the Claimant to his employment as Professor of the 6th Defendant.

(v) The 2nd, 3rd, 4th, 5th and 6th Defendants are restrained from withholding due salaries and other emoluments of the Claimant”

There is no doubt that the learned trial Judge described the claims as nebulous. I am of the view that the Learned trial Judge only made the mistake of wrong choice of word. It is inherent in the findings of the learned trial Judge that even though there were thirty four (34) reliefs sought by the Respondent, the Learned trial Judge was able to discern or appreciate the real substance of the claims before the Court.

I believe an appellate Court will not on account of a misuse or wrong choice of words employed by a trial Court in describing Reliefs or claims of a Claimant deny a party the remedy or relief he richly deserves. An Appeal in that behalf by a party aggrieved will not be sustained unless the party Appealing is able to show that the award made or the reliefs granted are outside the scope of the reliefs sought by the Claimant. It is not every mistake of a trial Judge that will result in setting aside a judgment. The Court is only concerned about the substance of the reliefs granted. See BFI GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PART 1332) 209 at 243 F-G where FABIYI, JSC held thus:

“The Court is enjoined to provide a relief where a legal right is established. The court should look into the substance of the action rather than the form. As has been held by this court in BELLO VS ATTORNEY GENERAL OF OYO STATE SUPRA, the Respondent had a duty to the Appellant which was breached by unwarranted arrogation of their contract”

In any event a calm examination of the reliefs claimed by Respondent of pages 21-27 of the record amply supported and covered the findings of the trial Court. See claims 1, 2, 3, 4 5, 6,7, 8, 9, 10, 11, 20, 21, 22, 23, 25, 31 of the Statement of Claim and the Writ of Summons contained on pages 2 – 27 of the printed record.

This Court will not interfere with the reliefs decreed in favour of the Respondent. See: ALHAJI UMARU SANDA NDAYAKO & ORS VS ALHAJI HALIRU DANTORO & ORS (2004) 13 NWLR (PART 889) 187 at 220 where EDOZIE, JSC said.

“An Appellate Court is only concerned with whether the judgment Appealed against is right or wrong not whether the reasons are. Where the Judgment of the Court is right but reasons are wrong the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere. See ABAYE vs OFILI (1986) 1 NWLR (Pt.15) 134 at 179; UHAJIANYA VS UCHENDU 19 WACA 46.”Consequently issue IV is resolved against the Appellants.

ISSUE V

WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE CLAIMANT WAS DENIED FAIR HEARING (GROUND 6)

The Appellants submitted that the meaning and essence of fair hearing will vary in respect of each of the status claimed by Appellant that is as Vice Chancellor and employment as a Professor of the University. That pursuant to the Imo State University Law the Visitor’s powers are discretionary. That the Respondent must show that the Visitor acted ultra vires his powers. That the Visitor has the statutory powers to appoint and remove a Vice Chancellor and more so according to the Appellants, when the Respondent was not validly appointed. That the whole essence of Section 2 of 1st schedule to Imo State University Law is to shield the office of a Vice Chancellor from trappings of political interference. The Appellants relied on:

1. Law and University administration in Nigeria by J. D. OJO PAGES 79-94.

2. PRICE VS SUNDERLAND CORPORATION (1956) 1 WLR 1253 at 1269, and

3. Didyo Daya UNIVERSITY OF CEYLON VS LINUS SILVA (1965) 1 WLR 77.

That the visitor has powers pursuant to Section 2(c) (d) and 16(2) of the Imo State University Law to remove a Vice Chancellor and to commission a visitation in respect of the affairs of the University and that what guides the visitor is “GOOD CAUSE” as defined in Section 2(c) and (d) and that 16(3) compels all bodies and persons to give effect to any instruction consistent with the provision of the Imo State Law as may be given by the visitor in consequence of a visitation. The Appellant placed reliance on the case of ADEGBENRO VS AKINTOLA (1963) 3 ALL E.R. 544.

That the Appellants elicited from Respondent and DW1 under Cross Examination that the Respondent was removed consequent upon the content of verbatim report of proceedings in pages 20-60 of Exhibit “CW46” and that the evidence of DW1 was not challenged through Cross Examination. According to Appellants Respondent presented his case without any inhibition on pages 20-60 of Exhibit 46 and that it was disclosed that the Respondent expended N10,000,000.00 to furnish his official residence without any award of contract when his limit was N1,000,000. The Appellants believe that act alone was enough misconduct for which the Visitor could remove Respondent as the Vice-Chancellor. They relied on the cases of

(1) MOROHUNFOLA VS KWARA TECH (1990) 4 NWLR (Pt.145) 506 at 525 – 526 H-A.

(2) OLORUNWBA-OJU VS ABDUL-RAHEEM (2009) 13 NWLR (PART 1157) 83 at 136 F-H.

(3) EMOKPAE VS UNIBEN (2002) 17 NWLR (PART 795) 139

(4) GARBA VS UNIVERSITY OF MAIDUGURU (1986) 1 NWLR (Pt.18) 556 H

That under Section 2(d), 16(1) to 3(a) (b) and 17 of Imo State University Law, the Respondent could be removed and no formal trial by a court is necessary for a valid removal. They relied on the case of EIGBE VS NUT (2008) 5 NWLR (Pt. 1081) 604 at 624 D-E.

Appellants urged the Court to decide the issue against the Respondent.

In response to the above submissions under issue five (v), the Respondent submitted that he was not given fair hearing before the decision of the Appellants against him as contained in Exhibit 41 PAGE 256-257 of the record of Appeal. That the decision of the Appellants and Imo State White Paper on the report of Visitation panel Exhibit CW2 pages 56-100 were contrary to principles of natural justice and inconsistent with Section 36(1) (2) (a) and 5 of the Constitution of the Federal Republic of Nigeria 1999; First Schedule to the Imo State University Law and other applicable laws. That the appointment of the Respondent as per approval of Respondent’s appointment on 21/10/2005 was for a term of 5 years.

That the employment of the Respondent is one with statutory flavour and beyond that of ordinary master and servant relying on the cases of:

1. BALOGUN VS UNTVERSTTY OF ABUJA (2002) 13 NWLR (PART.783) 42 at 53 A, C-H.

2. OLANIYAN Vs UNIVERSITY OF LAGOS (No.2) (1985) 2 NWLR (PART 9) 599.

3. IMOLOAME VS. W.A.E.C (1992) 9 NWLR (PART 265) 303.

The Learned silk for the Respondent chief Amaechi Nwaiwu SAN submitted that the omission of the Visitation Panel to afford the Respondent opportunity of being present when those criminal allegations were made against him and in failing to also afford him the opportunity to Cross-examine those witnesses amounted to a denial of a fair hearing. Reliance was placed on the case of ESSIEN VS UNIVERSITY OF CALABAR (1990) 3 NWLR (PART 140) (sic).

The learned silk submitted that the reasons given in the Government while paper, Exhibit CW2 page 3 paragraph 43.4 (1) – V are founded upon allegation of fraud of embezzlement of 55 Million alleged to have been paid with ETF account and examination offences, admission racketeering which are all allegations of criminal offences that can only be tried by a court of competent jurisdiction. He relied on the cases of

(1) EGWU vs UNIPORT (1995) 8 NWLR (PART 414) 419, 448- 449.

(2) ADEDEJI vs POLICE SERVICE COMMISSION (1960) NMLR 102.

(3) AIYETAN vs NIFOR (1087) sic 3 NWLR (Pt.59) 48

(4) UNTMB vs NNOLI (1994) 8 NNLR (363) (sic)

(5) OBOT vs CBN (1993) 1 NWLR (Pt. 310) 140

(6) ROTIMI AMAECHI V. INEC (2008) 5 NWLR (PT.227) AT 306 (SIC)

(7) GOVERNOR EKITI STATE VS OJO (2006) 17 NWLR (Pt.1007) at 120 – 121. That conditions expressly laid down in Section 17 of Imo State University Law on procedure for removal of a Vice chancellor must be followed and no other method or conditions can be employed to remove the Respondent as Vice chancellor. That the visitation Panel was bound to act judicially citing

(1) OBOT VS. CBN (1993) 8 NWLR (Pt.310) 140 at 161

(2) NDU V. THE STATE (1990) 21 NSCC (Pt.111) 505 at 521.

(3) OFFOR VS STATE (1999) 12 NWLR (Pt.632) 608 at 626

(4) ADIGUN VS A.G OYO STATE (1987) 1 NWLR (Pt.53) 678

That the visitation Panel and the Appellants breached the Constitutional right to fair hearing and that their decision against the Respondent is a nullity. The following cases were also cited:

1. CHIEF LANDS OFFICER VS ALOR (1991) 4 NWLR (PT.187) 617 AT 627

2. E. D. TSOKWA & ORS LTD VS CFAO (1993) 5 NWLR (Pt.291) at 128 (sic).

3. ADIGUN Vs A-G OYO STATE (1987) 1 NWLR (Pt.53) 678.

On what the visitor should have done upon receipt of visitation Panel report the case of OLORUNNBA OJU V. ABDUL-RAHEEM (2009) 13 NWLR (Pt.115) 83 at 145 C-D was cited and relied upon. Respondent urged this Court to uphold the decision of the trial court on this issue and to dismiss the Appeal in its entirety.

On page 1067 of the record of Appeal the learned trial judge said:

“Another issue for consideration is the attitude of the 1st, 2nd, 4th and 6th Defendants who had to act on the report of the visitation Panel. The findings of the Visitation Panel contained in Exhibit C2 at pages 6, 7 8, and 9 thereof is prejudicial to the Claimant. Did the said Defendants invite, either by query or otherwise, the Claimant to react to the findings of the visitation panel, they themselves being administrative agencies obliged to observe the rules of natural justice? There is no evidence that they did. In all; I hold the view that there is palpable breach of the principle of natural justice. I also hold the view that the Claimant was denied fair hearing by the visitation Panel and the 1st, 2nd, 4th and 6th Defendants.”

The Learned trial Judge held that the whole proceedings, recommendations, comments and decision of the Government thereon against the Respondent are null and void. The Appellants posited that the meaning and essence of fair hearing will vary in each of the status claimed by the Respondent i.e. as Vice Chancellor and (b) employment as a Professor of Imo State University.

Both sides are ad idem that the employment and removal of the Respondent is statutorily regulated and governed. Issues were also duly joined on whether or not the Respondent was given fair hearing before he was removed as the Vice Chancellor.

Now by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended a person is entitled to fair hearing within a reasonable time by a Court or other tribunal in the determination of his civil rights and obligation including any question or determination by or against any government or authority.

The provisions of the Constitution just alluded to ensure that a person shall not be denied opportunity of been heard before any matter affecting him is determined by any tribunal be it administrative or panel or a Court.

In the case of R. ARIORI & ORS. VS. MURAINO B. O. ELEMO & ORS (1983) 1 SC 13 at 23 OBASEKI, JSC held thus:

“The meaning of ‘fair hearing’ and ‘reasonable time’ are not given in the 1963 nor in our new 1979 Constitution but they have however received judicial interpretation. In my view “fair hearing within a reasonable time accords with the demands of justice and a waiver of this right amounts to a waiver of justice. Hearing has been defined in the Pocket Law Lexicon 8th Ed. By A. W. Motion as “the trial of a suit” trial on the other hand is defined on the same pocket Law Lexicon as “the hearing of a cause, civil or criminal, by a competent tribunal, the decision of the issues of law or fact in action. It may be by a judge or judges with or without jury or assessors. “fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to justice ensure that is done to the parties to the cause. “Reasonable time” mean the period of time which in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable person to be done.”

This settled or avowed position of the law concerning fair hearing was reiterated recently in the case of CHIEF J.LE. DUKE Vs GOVERNMENT OF CROSS-RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 at 366 B – C where GALADIMA JSC who delivered the leading judgment said:

“It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibit 3 by the 2nd Respondent. By the term “fair hearing” within the con of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto”

The employment of the Respondent has statutory flavour and his appointment is protected by the Imo State University Law No.5 of 2004 Sections 16 and 17 thereof. The Respondent cannot be removed from office or disciplined outside the laid down procedures contained in the said law.

See C.B.N & ANOR VS. MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 420 C – F Where AKINTAN JSC put it pungently as follows:-

“Where an employee’s service is protected by statute and his employment is wrongfully terminated’ he would be entitled to reinstatement in his office and in addition, damages representing his salaries during the period of his purported dismissal. See SHITTA BEY VS THE FEDERAL PUBLIC SERVICE COMMISSION SUPRA, OLANIYAN VS UNIVERSITY OF LAGOS SUPRA AND UDO VS CROSS RIVER STATE NEWS PAPERS CORPORATION SUPRA. This court clearly stated the legal position of public servants in the OLANIYAN VS UNIVERSITY OF LAGOS CASE SUPRA. It is that public servants in the established and pensionable cadre of the Federal Government serviced do not hold their office at the pleasure of the Federal Government Rather their appointments are based upon the rules and regulations, statutes or memoranda of appointment. It was also clearly stated in the same case that the University of Lagos and the University Council, both being creature of statute cannot act except within and under the powers conferred on them by the relevant statute.

The same principles are fully applicable to the Respondent’s appointment. There is no doubt that the Appellants could discard or dispense with the services of Respondent as Vice chancellor of Imo State University by strictly adhering to procedure for removing him as embedded in the said University law. The Appellants in answer to the allegation of the Respondent that he was removed in breach of rules of natural justice and fair hearing took up the gauntlet and boldly pleaded and asserted that the Respondent was removed for being guilty of gross misconduct and financial Impropriety. Their Pleading was in line with the Imo State official Gazette issued by the Visitor cum Governor of Imo State and letter from Imo State University all saying virtually the same thing. The said Gazette issued as a Public Notice dated at Owerri the 10th day of July, 2009 issued by the Visitor reads:

PUBLIC NOTICE IMO STATE UNIVERSITY LAW, 2004 LAW NO.5 OF 2004.

In the exercise of the powers conferred on the by section 17 of the Imo State University Law, 2004 and all other powers enabling me on that behalf, I, CHIEF IKEDI OHAKIM, Visitor of Imo State University do hereby remove Professor Innocent C. Okonkwo as Vice Chancellor of Imo State University on ground on misconduct.

Dated at Owerri the 10th day of July, 2009.

CHIEF IKEDI OHAKIM

VISITOR

IMO STATE UNIVERSITY”

Pages 256-257 and 218 of the Record of Appeal

Where as in this case the employers of the Respondent, that is the 1st and 4th Appellants have pleaded that the Respondent was guilty of gross misconduct and financial impropriety, they have a bounden duty to substantiate them and must proffer credible evidence to show that the employee was given ample opportunity to defend himself.

See:

SHELL PETROLEUM CO. LTD VS. CHIEF VICTOR SUNDAY OLAREWAJU (2008) 18 NWLR (PART 1118) 1 AT 19 H TO 20A where TABAI JSC had this to say:

“The guiding principle which has been articulated and applied in many cases including OLATUNBOSUN VS N.I.S.E.R Council (1988) 1 NSCC 1025, (1988) 3 NWLR (Pt. 80) is that an employer is not bound to give reasons or cause for terminating the appointment of its employee. But where as in this case he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. In the case of the Appellant, having given Gross Misconduct as its reasons for Respondents dismissal, has the onus to establish that the Respondent was indeed guilty of the alleged misconduct to warrant his dismissal. And in a case such as this, The Court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached”

There is unchallenged evidence before the trial Court that the Appellants (all and singular) did not at any time give the Respondent any hearing concerning the allegations contained in the Visitor’s removal of the Respondent and the letters written by the University. The Respondent testified that he was neither queried nor was he invited to defend himself even when 150 witnesses particularly the witnesses the visitation Panel believed before it made its recommendations against the Respondent. He was not present when witnesses gave evidence in his absence as he was not invited by Appellants to confront the witnesses or Cross examine them. The allegation of financial impropriety contained in the Imo State University letter to Respondent accused Respondent of embezzlement which in plain meaning means stealing of monies belonging to Respondent’s employer, the Appellants, upon which they took decision without affording Respondent reasonable opportunity of being heard in his defence before his purported removal or retirement.

The Appellants profoundly accused the Respondent of stealing their money while in office as Vice Chancellor. They pleaded in paragraph 7 of their Statement of Defence thus:

“7 The Claimant was found to have presided over misappropriation of funds of the University”

The Appellants led no evidence to prove it. No amount of ingenious argument of Appellants can take the place of evidence that was required to be led by the Appellants to sustain their pleadings before the trial Court. They are deemed to have abandoned their defence as postulated in their pleadings before the lower Court. There cannot be an address of Counsel in vacuo. There must be evidence to shore up the address of Counsel. See BFI GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISE (2012) 18 NWLR (PART 332) 209 at 244 B-C per FABYI JSC who said:

“It is not clear to me why the above submission of Senior Counsel to the Respondent has come up. There is no evidence on Record that Russal of Russia has taken possession of ALSCON and now fully operates it. Such forms part of address which is ordinarily designed to assist the Court. It is not evidence and no fine speech in an address can make for lack of evidence to prove or establish a fact or else disprove and demolish a point in issue”

The Respondent appeared before the panel on invitation to tell the panel the general standard and challenges of Imo State University. He was not before the Panel on any charge of misappropriation of Imo State University funds. He was before the Panel as a witness and not as an Accused.

It is even amazing that when the Visitor purportedly removed the Respondent as Vice Chancellor of Imo State University for misconduct on 10th July, 2009, the Acting Vice Chancellor purporting to write on 15th July, 2009 on behalf of the Imo State University stated that the Respondent was retired for

“having committed acts of gross misconduct and financial impropriety inconsistent with the esteemed office of Vice-Chancellor”

The University also wrote on same 15/7/09 through Deputy Registrar (Establishment) reiterating reasons for Respondent’s retirement and state further that

“It was specifically noted among other things that you falsely claimed to have paid N55m (fifty five Million Naira) to ETF as penalty. Council frowns at these unwholesome acts of yours and hereby directs that

1. You should refund to Imo State University, the sum of 55m (fifty five million Naira) being the amount you claimed to have Paid to ETF.

2. You be retired from the services of Imo State University with immediate effect”

Pages 218-219 of the Record.

Neither the visitor nor the University can invoke the provisions of Sections 2, 6(1) to 3(a) (b) and 17 of the Imo State University Law No. 5 to remove the Respondent for any misconduct or financial impropriety without first complying with Section 36 (1) of the 1999 Constitution of Nigeria which encapsulates the principle that

(a) no man shall be judge in his own case and

(b) the two sides in a dispute must be heard.

See OBOT VS CBN (1993) 8 NWLR (Pt.310) 140 at 161 where it was held:

“If prejudicial allegations are to be made against him, he, must normally as we have seen, be given particulars of them before the hearing so that he can prepare his answers. In order to protect his interest he must be enabled to controvert, correct or comment on their evidence or information that may be available before the hearing, the right course will usually be to give him advanced notification”

On page 1134 of the record under Cross Examination by Learned Senior Counsel to the Appellants the following evidence was given by Respondent viz:

Put: You were removed for misconduct

Ans: I was not invited by the Panel to respond to the allegation against me.

On page 1138-11 of the said record is the evidence of DW1 who testified on behalf of Governor of Imo state (the Visitor), the Attorney – general, Imo State and the Hon. Commission for Education Imo State sued as 1st , 3rd and 7th Defendants at lower court. The said DW1 CHIDI AHAMEFULA DURU, tendered Exhibit 46 the verbatim report of the Visitation Panel. He is a civil servant in Imo State Civil service.

Under Cross Examination by AMAECHI NWAIWU SAN for the Respondent on page 1139 of the record DW1 said:

“Altogether we received oral evidence from about 150 persons. At the time those witnesses testified, the Plaintiff was not present. The Plaintiff only came when we needed him.”

And on page 1140 of the record DW1 said under Cross Examination:

“The Claimant/Plaintiff did not Cross examine witnesses who testified after him.”

With the evidence falling from the lips of the DW1 who was the Secretary of the visitation panel one does not need a soothsayer before one could conclude that the Respondent was denied fair hearing.

The inevitable conclusion is that the removal and/or retirement of the Respondent from Office and Services of Imo State University did not comply with due process of law particularly Section 36(1) of 1999 Constitution and the Imo State University Law No. 5 2004. The learned trial Judge was perfectly right in declaring all proceedings leading to the Respondents removal or retirement null and void.

See (1) POWER HOLDING COMPANY OF NIGERIA PLC VS MR I. C. OFFOELO (2013) 4 NWLR (PART) 1344) 380 at 407 A-4 to 408 A-C I. T. MOHAMMAD JSC.

(2) ALHAJI A. R. ANIMASHAUN VS UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (Pt.476) 65 at 71 D-E where Belgore JSC later (CJN Rtd.) said

“It must be pointed out that the Appellant was never told he was retired because of the Report of the panel. He was not even informed how the sum he was surcharged was arrive at it has not been shown in the evidence before the trial Court how the indebtedness of the Appellant, was arrived at and that he was confronted with allegation against him so as to defend himself. It is true that pension Act applied to the staff of Defendant by virtue of its statute but all the steps that must be taken to allow the Appellant to know he had committed any misdeeds were withheld from him. The court of Appeal overlooked this very fundamental aspect of fair hearing and arrogated the administrative Panel status of unimpeachable inquisition.

………………………..

The Plaintiff who gave evidence before the panel on procedure of purchase only was not asked anything about any fraudulent practice personal to him and he was never notified of any allegation against him”

ISSUE V is therefore resolved against the Appellants. In sum the Appeal of the Appellants is devoid of merit. It is hereby dismissed in toto. Judgment of Lower Court is hereby affirmed with costs of N50,000.00 in favour of the Respondent.

JUDGMENT ON THE CROSS-APPEAL

By their Amended Notice of Cross Appeal dated the 31st day of July, 2012 and filed on 28th day of August, 2012 the CROSS APPELLANT who is the Respondent in the main Appeal filed three (3) grounds of Appeal against the judgment of the lower court. The three grounds of Appeal contained in the Amended Notice of Cross Appeal deemed properly filed on 29th November, 2012 without their particulars are as follows:-

GROUND ONE

The Learned trial judge erred in law in holding that by effluxion of time the tenure of the Cross Appellant as Vice Chancellor of 6th Respondent expired and lapsed on 21/10/2010 and cannot be reinstated as Vice Chancellor of the 6th Respondent’ and not entitled to perquisite appertaining to him as Vice Chancellor when he held as follows:

“From the deposition of the Claimant, Claimant was appointed Vice Chancellor with effect from 21st October, 2005 for a term of five years terminating on 29th October, 2010. This means that by effluxion of term, the tenure of the Claimant as Vice chancellor of 6th Defendant expired and lapsed on the 21st October, 2010. This being so, the Claimant is entitled to his emolument up to 21st October, 2010 Subject to the above, the question reinstatement of the Claimant as vice chancellor can no longer arise and is merely academic. In the same light those perquisites of office appertaining to the Claimant as Vice Chancellor inure so long as he was Vice Chancellor and would have lapsed at the expiration of the term. The perquisites include entitlement to furnish, accommodation and all such accruements of office of Vice Chancellor Vice Chancellor”

Hereby resulting in substantial miscarriage of justice to the Cross-Appellant.

GROUND TWO

“The Learned trial Judge erred in law in not granting the Cross Appellant the sum of N500,000,000.00 (Five Hundred Million Naira) being General Damages aggravated and exemplary damages for unlawful and wrongful removal as Vice Chancellor of Imo State University as a result of effluxion of his term as Vice Chancellor, the claim for damages having become superfluous and academic.”

GROUND THREE

“The Learned trial Judge erred in law by raising the issue of exfflusion of time suo motu and basing his decision not to restore or re-in-state, the Cross Appellant to his position as Vice Chancellor of the 6th Respondent thereon without calling the parties to address him on same which resulted in a miscarriage of justice on the Cross-Appellant who has complain when he held as follows:-

“From the deposition of the Claimant, Claimant was appointed vice chancellor with effect from 21st October, 2005 for a term of five years terminating on 20th October, 2010. This means that by effluxion of time the tenure of the Claimant as Vice Chancellor of 6th Defendant expired and lapsed on the 21st October, 2010.”

Hereby resulting in a miscarriage of justice to the Cross-Appellant who complained and was denied the opportunity of responding to the issue of effluxion of time raised.”

The Cross Appellant formulated three issues for determination with regard to the Cross Appellant’s Notice and Grounds of Appeal. They are:-

1. Whether the learned trial judge was right in refusing to reinstate the Claimant/Cross Appellant as vice chancellor of the 6th Respondent on the ground that it can no longer arise and merely academic his tenure as Vice Chancellor having expired and lapsed on effluxion of time on 21st October 2010 and that in the same light those perquisites of office appertaining to the Cross Appellant as Vice Chancellor such as entitlement to furnish accommodation and all such accruements of office of Vice Chancellor would have lapsed at the expiration of the term?

2. Whether the Learned trial Judge was right in declining to award General/Aggravated/exemplary damages considering the peculiar circumstances of this case (Ground 2)

3. Whether the trial Judge was right in not only raising the issue of effluxion of time at the trial Court suo motu and also basing its decision thereon without hearing argument from all the parties to the case

(Ground 3)

The Cross Respondents filed their Brief of Argument on 12th day of April, 2012. It is dated 10th day of April, 2012, wherein the sole issue raised in the original Cross Appellant’s Brief was adopted.

The Cross Appeal can be determined on the three issues raised by the Cross Appellant. The issues will be treated in sequence.

ISSUE 1

The Cross Appellant submitted that it was wrong for the judge in failing to reinstate him as the Vice Chancellor of the 6th Respondent with his perquisite of office. That in view of the findings of the Learned trial Judge on pages 1068 and 1069 of the record nullifying the findings, recommendations and comments of the Government and the proceedings of Visitation Panel as it affected the Cross Appellant, the Claimant was entitled to continue as the Vice Chancellor Imo State University up to 21st October 2010 and to emoluments of his office as up to 21st October, 2010. That the Cross Appellant was kept out of office for 1 year and 10 months and that he OUGHT TO HAVE been reinstated by the trial Judge to spend and exhaust his term or tenure as Vice Chancellor of Imo State University. That THE Cross Appellant instituted this action on 21/10/2009 but had no control over the proceeding and that his term was still subsisting even when the Suit was pending. He relied on the Plethora of cases of The Cross Respondent submitted that the Cross Appellant’s claim to furnished accommodation is lacking in merit. They relied on the cases of CHUKWUMA VS SPDC (1993) 4 NWLR (PART 239) 512 and EMEKA NWAMA vs FCDA & ORS (2004) 6- 7 SC 136 at 145. They argued that the basis of Cross Appellant’s Claim to quarters of the Vice Chancellor is his claim to that office and that the office no longer existed at the time of Judgment that the tenure contained in Exhibit CW7 is stated to be 5 years with effect from 21/10/2005. That even if the Appellant was validly appointed to the office Exhibit CW7 set out terminal date and that the court lacks the power to import any other commencement or terminal date than the date expressed and implied in Exhibit CW7 relying on the case of LADOJA VS INEC (2007) 2 NWLR (PART 1047) 119 at 188 – 189 G-E, 157, 157 C-E and 160A and the following consolidated cases Suit No.SC.14/2011- MARWA V. NYAKO, SC 2661/2011- INEC VS. IMOKE, SC.267/2011 – INEC V. SYLVA , SC.282/2011-INEC V. WAMAKO, SC.356/2011, INEC V. NYAKO, SC.357/2011 – INEC V. IDRIS.

What I can gather from the grounds of Cross Appeal and all the arguments of the Cross-Appellant on this issue 1 in the Cross Appeal is that the Cross Appellant has slided into adventure in tenure elongation of the five years certain which the Imo State University Law No.5 of 2004 bestowed upon him by virtue of his appointment to the office of Vice Chancellor of the said University vide Exhibit CW7, his Letter of Appointment dated 21/10/2005 by the visitor to the said University. He wants additional year and 2 months as compensation for having been deprived of the office. That this term was running while he was in Court trying to vindicate his rights.

I am of the settled view that the position of the Appellant smacks of element of bad faith and abuse of Court process knowing fully well that his tenure of office as Vice Chancellor has by effluxion of time came to an end on 21/10/2010. The only remedy or reliefs he is entitled is the relief two (ii) granted in this favour by the trial judge that:

“The Claimant was entitled to continue as vice chancellor Imo State University up to 21st October, 2010 and entitled to emoluments of his office as such up to 21st October, 2010.”

To accede to the request of the Cross Appellant will tantamount to patent breach of the provisions of the Imo state University Law which Cross Appellant vociferously challenged and accused the Appellants/Cross Respondents of having breached or failed to comply with before he was arbitrarily and unlawfully removed as Vice Chancellor of the said University and illegally retired him as Academic staff of the University. Section 6(2) of the law and paragraphs 2(6) of the First Schedule to Imo State University Law mince no words and is categorical that the Vice chancellor shall be in office for 5 years from the date of his appointment. The provisions first referred to provide:

Section 6(2) The First Schedule to this Law shall have effect with respect to the principal and other officers of the University therein mentioned, and the second schedule to this Law shall have effect with respect to the bodies therein mentioned.

Then paragraph 2(6) of the First Schedule says:

“The Vice-Chancellor shall hold office for a term of five years on such terms and conditions as may be specified in his Letter of Appointment provided that the incumbent Vice Chancellor shall upon the coming into force of this law be deemed to have been appointed to hold office for a single term of five years from date of his appointment”.

The Cross Appellant was fully conscious of the position of the aforesaid Imo State University Law. The Claimant’s reliefs laid out and as contained or indorsed on his writ of summons is as follows:

“1. A declaration that the terms of office of the Claimant as Vice Chancellor Imo State University is for a statutory period of five years commencing from 21st October, 2005.”

It is also here relevant to reproduce paragraph 11 (a) of the Cross Appellant’s Statement of claim wherein the pleaded thus:

“11(a) The Claimant was appointed Vice Chancellor Imo State University on 21st October’ 2005 by the 1st and 2nd Defendants for a term of five years and commenced functioning as such. The Claimant’s term of office expires on 20th October, 2010.”

The Claimant adopted his witness statement on oath at the Lower Court and tendered all pleaded and listed documents including the said Imo state University Law and letters concerning his appointment as Vice Chancellor. All these became evidence before Lower Court upon adoption of his Witness Statement as well as the tendering and admission of documents listed in evidence.

The Claimant is bound by his pleadings and evidence led at the trial. And all these go to show that a community reading and interpretation of the letters of his appointment juxtaposed with the cited provisions of Imo State University law reveal that just as he pleaded in paragraph 11(a) of his statement of claim the Cross Appellants term of office expired on 20th October, 2010. To decide otherwise would mean an illegal or unlawful deviation by the court from the pleaded facts and the applicable law, see AFRICAN CONTINENTAL SEAWAYS LTD VS NIGERIAN DREDGING ROADS AND WORKS LTD (1977) 5 SC 235 at 249 – 25O per IRIKEFE, JSC.

The Cross Appellant cannot be reinstated into an expired term of office of Vice Chancellor of Imo State University. The law does not compel performance of impossibility. There is nothing in the Imo State University Law contemplating such a bizarre request for elongation of an expired term of office statutorily governed to enable the Cross Appellant serve out what he described “HIS UNEXHAUSTED TERM”.

The Lower Court is right in holding that Cross Appellant’s tenure as Vice Chancellor had lapsed on 21/10/2010 and that the Cross Appellant is NOT – entitled to perquisites of office appertaining to him as Vice Chancellor, furnished accommodation and all such accruements of office of Vice Chancellor after the expiration of his term on 21/10/2010.

Issue 1 is resolved against the Cross Appellant.

ISSUE 2 (CROSS APPEAL)

This has to do with whether the learned trial Judge was right in declining to award general/aggravated exemplary damages having regard to the circumstances of this case.

The learned Senior Counsel to the Cross Appellant Dr. Sir Amaechi Nwaiwu SAN referred to paragraph 47 of the Statement of Claim and paragraph 47 of the Witness Statement on Oath of the Cross Appellant pages 21 and 42 of the record and evidence led by Cross Appellant what he suffered as a result of wrongful and unlawful removal from office of the Vice Chancellor and wrongful retirement as an Academic Staff of Imo State University. He submitted that the evidence was unchallenged. He relied on the case of

1. OZIGBU ENG. CO. LTD vs IWUAMADI (2009) 16 NWLR (Pt. 1166) 64 D-F.

2. OMOREGBE vs. LAWANI (1980) 3-4 SC 108.

3. MOGAJI vs. ODOFIN (1978) 4 SC 91.

4. NEPA vs. ALI (1992) 8 NWLR (Pt.259) 279.

On General Damages, the Learned Senior Counsel stated that the Cross Appellant led evidence to prove his claim to General Damages but that the Cross Respondent did not lead any evidence to disprove the claim. That the learned trial Judge was wrong in failing to award the General Damages claimed for wrongful dismissal of Cross Appellant.

That since the Learned trial Judge found that Cross Appellant was wrongfully removed, the trial Judge ought to take into account that the removal as vice chancellor injured the Cross-Appellant’s proper feeling of dignity and pride and that Cross Appellant was ridiculed and scandalized. That the Cross-Appellant is also entitled to award of exemplary damages/aggravated damages.

The Learned Silk urged the court to grant reliefs sought by Cross-Appellant.

The finding of the Learned trial Judge concerning the refusal to award damages in favour of Cross Appellant can be found on page 1070 of the judgment. The learned trial Judge held:

“Concerning the claim for damages it seems to me, that the effect of the reliefs above serve to restore the Claimant to his original position save for the effluxion of his term as vice chancellor, Thus restored the claim for damages would appear to be superfluous”

I have carefully read the judgment of the learned trial Judge and in particular with regard to claim for damages which the learned Judge refused to award.

I am of the view that the conclusion of the learned trial Judge on the issue is in tandem with the settled position of the law.

Once an employee whose appointment is governed by statute is dismissed or relieved of his post and it is found to be unlawful by the court and such employee is restored, the employee would be paid only his salaries, emolument or other allowances due and accrued to him as if the unlawful removal never took place. Award of damages in whatever form or however described will not be granted in favour of the employee.

See

‘EX’- CAPT CHARLES EKE AGWU vs. THE NIGERIAN ARMY & ANOR (2010) 1 SCM 147 at 154 E-H per ONNOGHEN JSC who said:

“It is important to remind us that in an action for wrongful termination/ dismissal/ retirement only two primary issues call for determination. These are

1) Whether the termination/ dismissal/ retirement of the Plaintiff is wrongful

2) What is the measure of damages recoverable where the termination/ dismissal/retirement is found to be wrongful. I am however not unmindful of the fact that where a Plaintiff seeks the reliefs of reinstatement which relief is granted, the issue of measure for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the Plaintiff party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable”

ISSUE 2 on the Cross Appeal is hereby resolved against the Cross Appellant.

Issue 3 (CROSS APPEAL)

WHETHER THE TRIAL JUDGE WAS RIGHT IN NOT ONLY RAISING THE ISSUE OF EFFLUXION OF TIME SUO MOTU BUT ALSO BASING ITS DECISION ON IT WITHOUT HEARING ARGUMENT FROM ALL PARTIES IN THE CASE.

The learned silk for the Cross Appellant started of with the principle that a court cannot suo motu raise a question and resolve it suo motu without affording the parties the opportunity of being heard, is breach of Section 36 of the 1999 Constitution.

That the learned trial judge raised suo motu the issue of exffluxion of time and refused to reinstate the Cross Appellant on the ground that the tenure of office of the Cross Appellant as vice chancellor of the 6th Respondent has elapsed by effluxion of time without hearing argument from all parties thereby breaching Cross Appellant’s right to fair hearing.

I agree with the position of the Cross Appellant that a judge cannot raise an issue suo motu and decides it especially where it is not within the contemplation of the parties without giving opportunity to the parties to address the court on the issue. See

1. SUNDAY GBADGBARIGHA vs. ADIKUMO TORUEMI & ANOR (2012).

2. LEADERS AND COMPANY LTD (PUBLISHERS) OF “THIS DAY”) & ANOR vs. MAJOR GENERAL MUSA BAMAIYI (2010) 12 SC (Pt.IV) 55

However it is not in all cases where a court raised and decided a matter suo motu that will lead to a reversal of the decision of trial court by an Appellate court. The party complaining must convince the Appellate Court that the conduct of the trial judge caused a miscarriage of justice against him or that there is no basis for the Court to have raised the said issue suo motu. There are occasions particularly in exceptional circumstances and where the justice of the case demands it when a court will feel obliged to give some reliefs as remedies flowing from the evidence before the court or supported by a statute or other decisions of a higher court in favour or against any of the parties. It can also be done to prevent fresh or multiplicity of action between the same parties on the same subject matter. In such cases there will be no need to call upon the parties to be heard on an issue raised suo motu. See COMPTOIR COMMERCIAL & IND S.P.R. LTD VS. OGUN STATE WATER CORPORATION & ANR (2002) 9 NWLR (Pt.773) 629 at 651 B-G per AYOOLA, JSC who said:

“The proper role of a court in our accusatorial model of procedure is to pronounce on and determine the issue in controversy submitted to it. It is the parties who themselves play the primary role in the process, at the trial stage, by the issues raised on their pleadings, where the case is tried on the pleadings, and at the appellate stage, by the issues arising from the Grounds of Appeal raised by the Appellant. It is not for the Judge to initiate controversy. His role in the accusatorial model is first and foremost that of an umpire and it is in that role that he offers assistance by directing proper focus to what the parties themselves may have articulated without sufficient clarity as the question in controversy. There are the exceptional cases where it is permissible for the court to take an initiative to raise an issue on its own motion. Some of such instances are when the issue relates to its own jurisdiction; or, when both parties have ignored a statute which may have decisive bearing on the case; or when on the face of the record serious question of the fairness of the proceedings is evident.

The power of the court to make consequential orders as the justice of a case demands on its own motion though to be exercised with circumspection also exists. The cases cited by learned counsel for the Appellant such as Hanson v. Wearmouth Co. Ltd. (1938) 3 All ER 47; Rutherford v. Richardson (1922) All ER (Rep) 13; Aboud v. Regional Tax Board (1966) NMLR 100; Re Whiston (1924) 1 CH 122 and Williams v. Akintunde (1995) 3 NWLR (Pt.381) 101 fall into one or the other of these categories.”

It will certainly be illogical and would be repugnant to sense of justice for the trial court to over look the intervening effect of effluxion of time making it impossible to reinstate the Cross Appellant beyond the 21st day of October, 2010 as the learned trial Judge did. The term or tenure of office of Cross Appellant came to an end on 21/10/2010 notwithstanding that the matter was still pending in court and in spite of the fact that the Appellant did not have control over the matter in court.

Perhaps the Cross Appellant forgot he pleaded in paragraph 11(a) of his Statement of Claim that:

“The Claimant was appointed Vice Chancellor Imo State University on 21st October, 2005 by the 1st and 2nd Defendant for a term of five years and he commenced functioning as such. The Claimant’s term of office expires on 20th October, 2010.”

This pleading has its foundation in the Cross Appellant’s Relief 2 contained and indorsed on his writ of summons thus:

“Declaration that the term of office of the Claimant as Vice Chancellor Imo State is for a statutory period of five years commencing from 21st October, 2005.”

Neither the Cross Appellant’s Letter of Appointment nor Imo State University Law gave him 6 years and 10 months tenure of office as Vice Chancellor but five (5) years term as stipulated in Section 6(2) of Imo State University Law and paragraph 2(6) of the First Schedule to Imo State University Law.

The Court is not a charitable institution neither is it a Father Christmas. It exists to give unto Claimants or Defendants according to the reliefs they seek from the court and proved or established to the satisfaction of the court and so can award less but not more. What the Cross Appellant has done by this Cross Appeal is a surreptitious invitation to the court to grant unto him reliefs that will be inconsistent with the provisions of Imo State University Law. His supplication cannot be answered. It is refused.

Issue 3 is hereby resolved against the Cross Appellant.

The Cross Appeal is unmeritorious and it is hereby dismissed in its entirety. The judgment of the Lower Court is hereby confirmed. Cross Respondents are entitled to cost assessed at N50,000 against the Cross Appellant.

UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the lead judgment of my learned brother P. O. Ige, JCA just delivered. I agree entirely with the reasoning and conclusions reached therein that the Appeal is devoid of any merit.

My learned brother left no stone unturned in the consideration of the issues presented to us for determination and has ably and exhaustively dealt with all the legal issues to the extent that I have nothing more to add. I adopt the reasoning and conclusions as mine and accordingly dismiss the Appeal and endorse the consequential orders including order as to costs.

However, I just wish to add a word or so with respect to the Cross Appeal particularly issue one thereof for the purpose of emphasis only.

Issue One is to the effect that “whether the learned trial judge was right in refusing to reinstate the Claimant/Cross Appellant as Vice-Chancellor of the 6th Respondent on the ground that it can no longer arise and that it is merely academic; his tenure as Vice Chancellor having expired and lapsed by effluxion of time on 21st October, 2010 and that in the same light those perquisites of office appertaining to the Cross Appellant as Vice Chancellor such as entitlement to furnished accommodation and all such accruements of office of Vice Chancellor would have lapsed at the expiration of the term.”

The learned Senior Counsel to the Cross Appellant, Dr. Sir Amaechi Nwaiwu, SAN, referred to the finding of the learned trial Judge at page 1068 of the Record as follows:

“In my new, the proceedings of the Visitation Panel in so far as it relates to the Claimant as well as the recommendations based thereon which formed the basis of the decisions contained in Chapter 111 pages 6, 7 and 8 of the Government White Paper on the Report of the Visitation Panel into the affairs of Imo State University from 2004 till date and findings, recommendations and comments of the Government thereon are void and a nullity. I hold the aforesaid is void.”

The learned trial judge went further at page 1069 of the Record to hold as follows:

“The proceedings of the Visitation Panel in so far only as it affects the Claimant as well as the recommendations, findings and Government comment thereon contained in Chapter 111 pages 6, 7 and 8 of the Government white Paper on the report of the Visitation Panel into the Affairs of Imo State University till date are void, null and of no legal effect.”

Learned Silk, Nwaiwu, SAN of the Cross Appellant therefore argued that since the Cross Appellant is entitled to continue in office as Vice Chancellor, Imo State University up to 21st October, 2010, when his term of office would have expired and entitled to emoluments of his office as such up to 21st October, 20 10, that the lower Court having declared the proceedings of the Visitation Panel and the Government White Paper as it relates to the Cross Appellant null and void, he should be allowed to complete the unexpired period of five years as Vice Chancellor, Imo State University since he spent one year two months pursuing his legal right, thus asking for tenure elongation.

The tenure of office of the Cross Appellant as set out in Exhibit “CW7” is stated to be a period of five (5) years with effect from 21st October, 2005. The terminal date is therefore 20th/10/2010. By his Cross Appeal therefore, the Cross Appellant seeks the elongation of his tenure by allowing him to complete the one year and 2 months, spent prosecuting his case. Section 6(2) of the Imo State University Law 2004 and paragraph 2(6) of the First Schedule thereof categorically stated that the Vice Chancellor shall be in office for 5 years from the date of his appointment. Perhaps, the Cross Appellant needs to be reminded that, in his statement of claim, he averred in paragraph 11(a) thereof that he was appointed Vice Chancellor Imo State University on 21st October, 2005 by the 1st and 2nd Defendants for a term of five years and commenced functioning as such. The Claimant’s term of office expires on 20th October, 2010. He then sought for a declaration that the term of office of the Claimant as Vice Chancellor is for a statutory period of five years commencing from 21st October, 2005.

The question that rears its head in the circumstances is, how then does the Cross Appellant expect the Court to extend his tenure of office as Vice Chancellor by allowing him to complete the unexpired period knowing fully well and having so stated himself that his tenure ends on the 20th October, 2010? Would the trial court or even this Court have the jurisdiction and power to pronounce on the tenure elongation asked for in this Cross Appeal in the absence of clear provisions in the Imo state University Law 2004 to that effect?

It is clear the said law does not make or provide for such a provision and in fact none does exist, where as in the instant Appeal, the Cross Appellant would be restored into office so that his tenure does not terminate on the 20th October, 2010. The trial court and this Court lack the jurisdictional competence to do so. The Court does not re-write the contract for the parties. In the absence of any jurisdiction in the court to extend the time, any claim or relief which invites the Court to make an order to that effect is clearly academic.

In Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 119, the Appellant, Senator Rashidi Adewolu Ladoja was the Governor of Oyo State when he was removed from office by the state House of Assembly through the process of impeachment. The impeachment was voided by the Supreme Court and was therefore restored to his office as Governor of Oyo State. The Governor reasoned that the period that he was out of office should have been restored to his benefit so that his tenure would not expire at the end of four years from the date when he took his oath of office. The Apex Court declined to so hold. It held as follows:

“Neither the Supreme Court nor any other court has power to extend the period of four years prescribed for a Governor of a State beyond the terminal date calculated from the date he took the Oath of Office. In this case, the Appellant whose tenure of office commenced on 29th May, 2003 when he took his Oath of Allegiance and Oath of Office to serve his first term of four years in the office as Governor of Oyo State could not show anything on record by which the fixed period of four years under section 180(2)(a) of the 1999 Constitution could be extended beyond 29th May, 2007.

See also the case of Marwa & Ors v. Nyako & Ors (2012) LPELR 7837 SC (Consolidated).

In the instant case, the Cross Appellant has not placed anything on record to extend the period of five years stated in Exhibit ‘CW7′, beyond the terminal date of 20th October, 2010 to allow him enjoy tenure elongation’ His conduct is therefore an invitation to illegality, he is not honest with himself. He cannot be reinstated into an unexpired term of office of the Vice Chancellor of Imo State University. The lower Court has granted the Cross Appellant’s relief to continue as Vice Chancellor Imo State University up to 21st October, 2010 and entitlement to emoluments of his office up to 21st October, 2010.

It is for this reason and the more detailed reasons in the lead judgment of my learned brother, P. O. Ige, JCA that I also dismiss this Cross Appeal as it is completely without merit. I endorse the consequential orders made including order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: This Appeal is against the judgment of the Imo State High Court Holden at Owerri delivered on the 3rd day of February 2011 by Hon. Justice Nonye Okoronkwo.

Your Lordship has very painstakingly gone through all the issues involved with a fine tooth comb. I cannot agree more with his reasoning and conclusions and I adopt them as mine in all its totality. I too agree with his Lordship that there is indeed no merit in the Cross Appeal and I dismiss it accordingly. The judgment of the Lower Court is affirmed by me. Costs are assessed at N50,000 in favour of the Cross Respondent against the Cross Appellant.

Appearances

Dr. Amechi Nwaiwu S.A.N, C. C. Elechi Esq., L. O. Osuji (Mrs) Esq.; C. R. Onwuegbuchulam Esq.For Appellant

AND

D. O. Madu Esq., N. U. Iwuoha (Mrs) Esq. N. I. Amam Esq.For Respondent